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HomeMy WebLinkAbout14-1002 Supreme Court of- Pennsylvania COurtof Common Pleas For Prothonotary Use Only: Civil Cover Sheet i.:, , Docket No: �' I CUMBERLAND I / ' County I GU 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 lase or rules of court. Commencement of Action: S El Complaint 0 Writ of Summons ❑ Petition Transfer from Another Jurisdiction E] Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: GARY D. WOLFE MANORCARE HEALTH SERVICES - CARLISLE Ix Dollar Amount Requested: []within arbitration limits I Are money damages requested? D Yes El No (check one) 0outside arbitration limits O N Is this a Class Action Suit? 0 Yes El No Is this an MDJAppeal? i❑ Yes x No A Name of Plaintiff /Appellant's Attorney: David B. Dowling, Esquire Check here if you have no attorney (are a Self- Represented jPro Sep 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 snaking more than one type of claim, check the one that you consider most important. TORT (do not include Mass Torl) CONTRACT (do not include Judgments) CIVIL APPEALS M Intentional Buyer Plaintiff Administrative Agencies Malicious Prosecution Q Debt Collection: Credit Card 0 Board of Assessment Motor Vehicle Q Debt Collection: Other 0 Board of Elections Nuisance E] Dept. of Transportation Premises Liability El Statutory Appeal: Other S Q Product Liability (does not include Employment Dispute: E mass tort) Q Slander/Libel /Defamation Discrimination C M Other: Employment Dispute: Other E] Zoning Board � Other: T I E] Other: O MASS TORT il Asbestos N ] Tobacco Toxic Tort - DES rl Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS M Toxic Waste F1 Ejectment 0 Common Law /Statutory Arbitration B 0 Other: ID Eminent Domain /Condemnation ❑ Declaratory Judgment El Ground Rent E] Mandamus El Land I ord/Ten ant Dispute [❑ Non - Domestic Relations E] Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY El Mortgage Foreclosure: Commercial Quo Warranto 0 Dental 0 Partition Replevin 0 Legal 0 Quiet Title 0 Other: Fxl Medical Other: M Other Professional: Updated 1/1/2011 David B. Dowling, Esquire Attorney ID No. 25452 F Jill N. Weikert Esquire ' '��' Attorney ID No. 208055 - s'Fr RHOADS & SINON LLP FE i One South Market Square, 12th Floor C UNQi n YLV PO Box 1146 17108 -1146 S,g Harrisburg, Telephone: (717) 233 -5731 Facsimile: (717) 238 -8623 Email: ddowling @rhoads - sinon.com jweikert@rhoads-sinon.com Attorneys for Plaintiff GARY D. WOLFE, Individually and as ) IN THE COURT OF COMMON PLEAS Executor of the Estate of VIOLET M. ) CUMBERLAND COUNTY, PENNSYLVANIA WARD, ) CIVIL ACTION - LAW Plaintiff ) C l U NO I UVp� ll�� V. MANORCARE HEALTH SERVICES - ) CARLISLE, DARRYL GUISTWITE, ) D.O., and LUCINDA C. BENDER, ) C.R.N.P., JURY TRIAL DEMANDED Defendants ) NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249 -3166 CIS 642311.1 642311.1 David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No. 208055 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108 -1146 Telephone: (717) 233 -5731 Facsimile: (717) 238 -8623 Email: ddowling @rhoads- sinon.com jweikert@rhoads - sinon.com Attorneys for Plaintiff GARY D. WOLFE, Individually and as ) IN THE COURT OF COMMON PLEAS Executor of the Estate of VIOLET M. ) CUMBERLAND COUNTY, PENNSYLVANIA WARD, ) CIVIL ACTION - LAW Plaintiff ) NO. V. ) MANORCARE HEALTH SERVICES - ) CARLISLE, DARRYL GUISTWITE, ) D.O., and LUCINDA C. BENDER, ) C.R.N.P., ) JURY TRIAL DEMANDED Defendants ) COMPLAINT NOW COMES, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, by and through his attorneys, Rhoads & Sinon LLP, and files the within Complaint and in support thereof avers the following: PARTIES 1. Plaintiff, Gary D. Wolfe, is the Executor of the Estate of Violet M. Ward and is an adult individual who resides at 1491 Simpson Ferry Road, New Cumberland, Cumberland County, Pennsylvania 17070. Mr. Wolfe was the companion of Violet M. Ward, the Decedent, for twenty one (21) years prior to her untimely death. 933047.2 2. Defendant ManorCare Health Services — Carlisle (hereinafter "ManorCare Carlisle ") is a licensed nursing home and rehabilitation facility in the Commonwealth of Pennsylvania located at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17015. 3. Defendant Darryl Guistwite, D.O. (hereinafter "Dr. Guistwite "), is an adult individual and physician and licensed healthcare provider with a business address of 56 Ashton Street, Carlisle, Cumberland County, Pennsylvania 17015. 4. At all relevant times, Dr. Guistwite was an employee, agent, servant, ostensible or apparent agent, acting within the scope of his employment for Defendant ManorCare Carlisle. 5. Dr. Guistwite is currently an employee, agent, servant, apparent agent, and /or ostensible agent of ManorCare Carlisle. 6. Defendant Lucinda C. Bender (Ms. Bender), upon information and belief, is an adult individual and certified registered nurse practitioner (CRNP) and licensed healthcare provider with a business address of 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17015. 7. At all relevant times, Ms. Bender was an employee, agent, servant, ostensible or apparent agent, acting within the scope of her employment for Defendant ManorCare Carlisle. VENUE 8. Venue is proper in the Court of Common Pleas of Cumberland County in that the treatment provided to Violet M. Ward by the Defendants occurred in Cumberland County while she was a patient at ManorCare Carlisle. 2 FACTUAL 13ACKGROUND 9. On July 24, 2012, Violet M. Ward (hereinafter "Ms. Ward" or the "Decedent "), age 53, was seen and treated in the Emergency Department of Holy Spirit Hospital for abdominal pain and vomiting. 10. On July 25, 2012, Ms. Ward underwent an exploratory laparotomy with resection of a small portion of non - viable small bowel due to ischemia. Her abdomen was reopened on July 26, 2012, an additional portion of the small bowel was removed and the remaining bowel ends were surgically re- connected. 11. Ms. Ward had additional surgery on July 27, 2012 to repair a serosal tear, fluid was removed from the abdomen and a Wittmann patch was used to cover her abdomen. 12. Following her abdominal surgeries, Ms. Ward was on a ventilator in the intensive care unit at Holy Spirit Hospital and was receiving broad spectrum antibiotics. 13. While hospitalized at Holy Spirit, Ms. Ward received several blood transfusions and her anticoagulation medications were monitored daily by hospital staff and a consulting Hematologist. 14. Ms. Ward had a history of liver disease and esophageal varices, which combined with her recent abdominal surgery, placed her at significant risk for bleeding with anticoagulation, but at the same time, her risk for clotting without anticoagulation was also significant. 15. Due to her condition and medical history, it was imperative that Ms. Ward's anticoagulation therapy be monitored closely. 3 16. Between July 31 and August 7, 2012, Ms. Ward's blood urea nitrogen (`BUN ") and creatinine rose significantly and she was diagnosed as having acute kidney failure, which required several rounds of dialysis. 17. On August 10, 2012, Ms. Ward was awake, mouthing words, and her condition was gradually improving. At this time, the staff at Holy Spirit Hospital began facilitating plans to transfer Ms. Ward to a long term acute care or a nursing home facility. 18. At all times during her hospitalization at Holy Spirit Hospital, Ms. Ward's anticoagulation therapy was monitored daily and an order was written to call each day with her International Normalized Ratio ( "INR ") results for purposes of adjusting her Coumadin dosage. 19. On August 17, 2012, Ms. Ward was discharged from Holy Spirit Hospital to ManorCare Carlisle. 20. The discharge order from Holy Spirit Hospital included the following medications: Cordarone 200 mg daily, Lovenox 150 mg twice daily, Levemir 14 units SQ daily, Novolog 4 units SQ daily, Novlog sliding scale, Snythroid 200 mcg daily, Lopressor 25 mg twice daily, Nystatin powder to affected area three times — per day, Protonix 40 mg daily, Prednisone 10 mg daily, Coumadin 5 mg daily, Xanax 0.5 mg every four hours as needed for anxiety, Tylenol 650 mg every 6 hours as needed for mild pain and fever. 21. The discharge instructions indicated that Ms. Ward's INR should be maintained between 2 and 3. 22. Upon discharge from Holy Spirit Hospital, Ms. Ward's prognosis was good. Prothombin Time /International Normalized Ratio ( "PIANR ") is a blood test used to measure the clotting tendency of the blood and to monitor the function of' the anticoagulant warfarin ( "Coumadin "). 4 23. On August 17, 2012, the nursing staff at ManorCare Carlisle admitted an alert, oriented individual who was able to express needs and answer questions appropriately. 24. On August 17 and 18, 2012, the nurses' notes indicated that Ms. Ward had blood - tinged mucous which required attention. 25. Ms. Ward had a Foley catheter inserted on August 19, 2012 due to urinary retention and the nurses on duty noted blood in Ms. Ward's urine and in her wound vac. 26. On August 20, 2012, Lucinda C. Bender, Certified Registered Nurse Practitioner (C.R.N.P.), evaluated Ms. Ward and left a note summarizing the evaluation as follows: "53 years old female admitted 8/17/12 from Holy Spirit Hospital (admitted 7/25 with ischemic bowel, nausea and vomiting started two weeks prior to admission) -> Holy Spirit Hospital, small bowel resection, reopening and additional resection, cardioversion (atrial fibrillation), developed acute renal failure, ventilator dependence, hemodialysis catheter requested, portal vein thrombosis." 27. At the time of the examination with Nurse Practitioner Bender, Ms. Ward complained of increased abdominal pain. 28. Nurse Practitioner Bender listed Lovenox and Cordarone as medications, but omitted Coumadin from the list. Her assessment plan did not address anticoagulation. 29. A PT /INR was ordered for August 20, 2012 and the results were listed as 22/1.9. A note to recheck PT /INR in one week was written on a lab slip initialed by "CB," but there was no corresponding physician's orders on August 20, 2012 for anticoagulation dosing or for the date of the next PT /INR lab test. 5 30. With respect to anticoagulation medications administered at ManorCare Carlisle, Ms. Ward was given Lovenox 150 mg twice daily, Cordarone 200 mg once daily, and Coumadin 5 mg daily beginning on August 18, 2012. 31. Cordarone enhances the effect of Coumadin, thus increasing the risk of bleeding. 32. Ms. Ward's PT /INR was drawn on Monday, August 20, 2012, and her INR was 1.9, which was close to the therapeutic level recommended in Holy Spirit's discharge instructions. 33. On August 22, 2012, a physician order was written at 3:40 p.m. and signed by Dr. Guistwite to recheck Ms. Ward's PT /INR in one week. 34. On August 22, 2012, a member of the ManorCare Carlisle nursing staff noted that Ms. Ward had blood in her urine and hours later, another member of the nursing staff observed tea colored urine. 35. On August 23, 2012, a physician order was written and signed by Nurse Practitioner Bender to recheck PT /INR in one week. 36. On August 29, 2012, a physician order was written and signed by a nurse to check PT /INR and CBC. 37. On August 29, Dr. Guistwite noted that Ms. Ward had persistent nausea and vaginal bleeding. 38. At all times during her admission to ManorCare Carlisle, Ms. Ward had a poor appetite, was unable to feed herself and was not taking in proper nutrition. 39. On August 30, 2012, Dr. Guistwite indicated that Ms. Ward was alert, oriented and communicative. He signed an order to recheck Ms. Ward's PT /INR the following day. 6 40. According to ManorCare Carlisle's records, Ms. Ward's PT /INR was not checked between August 20 and August 30, 2012. 41, On August 30, 2012, Ms. Ward's PT /INR was checked and her results were critically high at >I 00> 11.7. 42. At the time these critical lab results were received, Ms. Ward was at her surgeon's office for an appointment regarding her abdominal wound. 43. During transport back to ManorCare Carlisle from her surgeon's office, it was observed that Ms. Ward was bleeding from her abdomen and she was instead taken to the Holy Spirit Hospital emergency department. 44. Ms. Ward was readmitted to Holy Spirit Hospital on August 30, 2012 with a severe abdominal bleed. She required multiple units of fresh frozen plasma and packed red blood cells. 45. Ms. Ward developed frank renal failure and persistent acidosis and her prognosis warranted comfort measures, which were employed by hospital staff. 46. On August 31, 2012, all treatment was stopped, Ms. Ward was placed on a morphine drip and she died. 47. The cause of death listed on Ms. Ward's death certificate was abdominal wound hemorrhage and coagulopathy. COUNT GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. DARRYL GUISTWITE, D.O. ( NEGLIGENCE ) 48. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 47 as if fully set forth herein. 7 49. At all relevant times, Defendant Darryl Guistwite, D.O. held himself out to be a healthcare provider who possessed the skill and knowledge in his specialty and held himself out to the public as so qualified. 50. The negligence of Dr. Guistwite consisted of the following acts and omissions which are to be read in conjunction with paragraphs I through 47: (a) failing to order and obtain a PT /INR every 24 -72 hours in a high risk patient; (b) failing to become aware of the soonest opportunity to reduce Coumadin dosing and eliminate Lovenox; (c) failing to ensure that the Decedent was receiving proper nutrition; (d) failing to recognized the harmful effects of Lovenox on a patient with recent renal failure; (e) failing to ensure that orders to recheck the Decedent's PT /INR were followed; (f) failing to recognize the dangerous interaction between Coumadin, Lovenox and Cordarone; (g) failing to respond to multiple reports of bleeding and potential bleeding in the Decedent, as observed by the nursing staff, (h) failing to order more frequent INR testing; (i) allowing the Decedent's PT /INR to reach a dangerously high level; and (j) failing to appropriately supervise and monitor the actions and assessments of Lucinda C. Bender, C.R.N.P. 51. The conduct of Dr. Guistwite, as described herein, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 52. As a direct and proximate result of the negligence and conduct of Dr. Guistwite as set forth herein, the Decedent's condition deteriorated, causing pain and suffering, malnutrition, internal bleeding, and ultimately, death. 8 WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, demands judgment against Defendant Darryl Guistwite, D.O. in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R. Civ. P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering, and all other damages, both economic and non - economic, as allowed by Pennsylvania law. COUNT II GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. LUCINDA C. BENDER, C.R.N.P. ( NEGLIGENCE ) 53. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 47 as if fully set forth herein. 54. At all times relevant times, Defendant Lucinda C. Bender, CRNP, held herself out to be a licensed certified registered nurse practitioner who possessed the skill and knowledge in her specialty and held herself out to the public as so qualified. 55. The negligence of Nurse Practitioner Bender consisted of the following acts and omissions, which are to be read in conjunction with paragraphs 1 through 47: (a) failing to include Coumadin in the Decedent's list of medications in the admission report; (b) failing to order and obtain a PT /INR every 24 -72 hours in a high risk patient; (c) failing to become aware of the soonest opportunity to reduce Coumadin dosing and eliminate Lovenox; (d) failing to ensure that the Decedent was receiving proper nutrition; (e) failing to recognized the harmful effects of Lovenox on a patient with recent renal failure; 9 (f) failing to ensure that written orders to recheck the Decedent's PT /INR were followed by staff, (g) failing to recognize the dangerous interaction between Coumadin, Lovenox and Cordarone; (h) failing to respond to multiple reports of bleeding and potential bleeding in the Decedent, as observed by the nursing staff, (i) failing to order more frequent INR testing; and (j) allowing Decedent's PT /INR to reach a dangerously high level. 56. The conduct of Nurse Practitioner Bender, as described herein, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 57. As a direct and proximate result of the negligence and conduct of Nurse Practitioner Bender as set forth herein, the Decedent's condition deteriorated, causing pain and suffering, malnutrition, internal bleeding, and ultimately, death. WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, demands judgment against Defendant Lucinda C. Bender, C.R.N.P., in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R. Civ. P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering, and all other damages, both economic and non - economic, as allowed by Pennsylvania law. COUNT III GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANORCARE HEALTH SERVICES — ( RESPONDEAT SUPERIOR 58. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 60 as if fully set forth herein. 10 59. The negligent and willful conduct of ManorCare Carlisle, operating by and through its agents, apparent agents, ostensible agents, servants and employees, including Dr. Guistwite and Lucinda C. Bender, C.R.N.P., consists of the following acts and omissions wNch are to be read in conjunction with paragraphs 1 through 57: (a) failure of the physician staff to order follow -up PT /fNR every 24 -72 hours in a high risk patient; (b) failure to formulate a plan to monitor the Decedent's anticoagulation therapy; (c) failing to become aware of the soonest opportunity to reduce Coumadin dosing and eliminate Lovenox; (d) failing to ensure that the Decedent was receiving proper nutrition; (e) failing to recognized the harmful effects of Lovenox on a patient with recent renal failure; (f) failing to ensure that written orders to recheck the Decedent's PT /INR were followed by staff, (g) failing to recognize the dangerous interaction between Cournadin, Lovenox and Cordarone; (h) failing to respond to multiple reports of bleeding and potential bleeding in the Decedent, as observed by the nursing staff, (i) failing to order more frequent INR testing; and 0) allowing Decedent's PT /INR to reach a dangerously high level. 60. The conduct of the agents, apparent agents, ostensible agents, servants and employees of ManorCare Carlisle, as described herein, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 61. As a direct and proximate result of the negligence and conduct of ManorCare Carlisle as set forth herein, the Decedent's condition deteriorated. causing pain and suffering. malnutrition, internal bleeding, and ultimately, death. 11 WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward demands judgment against the Defendant, ManorCare Health Services — Carlisle, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R. Civ. P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering and all other damages, both economic and non - economic, as allowed by Pennsylvania law. COUNT IV GARY WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANOR CARE HEALTH SERVICES — CARLISLE (CORPORATE NEGLIGENCE) 62. Plaintiff incorporated by reference the allegations set forth in paragraphs 1 through 61 as if fully set forth herein. 63. Manor Care Carlisle had a duty to select and retain only competent physicians. 64. As set forth above, the negligence and conduct of Dr. Guistwite and C. Bender, CRNP, fell below the standard of care, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 65. Manor Care Carlisle also had a duty to oversee all persons who practice medicine in its facilities, including certified registered nurse practitioners. 66. As set forth above, the negligence and conduct of Dr. Guistwite and the physician staff at Manor Care Carlisle, in failing to appropriately supervise and monitor the actions and assessments of Lucinda C. Bender, C.R.N.P., increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 67. Manor Care Carlisle failed to adopt and /or enforce adequate policies and procedures for the adequate communication between its physicians, certified registered nurse 12 practitioners, and nursing personnel concerning patient care responsibility. Manor Care Carlisle knew that this failure would lead to inadequate treatment of patients and jeopardize their safety. 68. Manor Care Carlisle had a duty to formulate, adopt and enforce rules and policies to ensure a patient's safety and well- being, and to see that such rules and policies were known and followed by all agents and employees of the nursing home. 69. As set forth above, Manor Care Carlisle failed to implement and follow through on an adequate and safe procedure for checking the PT /INR levels of a patient who was undergoing anticoagulant therapy and had a high risk of bleeding. 70. It is believed and therefore averred that Manor Care Carlisle was not adequately staffed, which resulted in the failure to follow up on orders to recheck the Decedent's PT /INR levels, the failure to adequately respond to reports of signs of internal bleeding, the failure to ensure that the Decedent was receiving proper nutrition, and the failure to ensure that orders in the Decedent's chart were followed as written. 71. Had Manor Care Carlisle been adequately staffed, the Decedent would have received a higher level of care, which would have prevented her death from abdominal wound hemorrhage and coagulopathy. 72. The policies of Manor Care Carlisle and /or lack thereof caused the Decedent to receive inadequate treatment in managing her anticoagulation therapy through the appropriate dosage of medication and performing regular checks of her. PT /INR levels, which led to natal internal bleeding and hemorrhage. 73. Manor Care Carlisle knew of the deficiencies in its policies and procedures and further knew that these deficiencies would jeopardize the health and safety of its patients and 13 r u indeed could lead to the death of its patients. Nevertheless, Manor Care Carlisle allowed the policies and procedures to continue. 74. As a direct and proximate result of said policies and /or lack of policies by Manor Care Carlisle, the Decedent suffered severe and permanent injuries and ultimately, death. 75. As a direct and proximate result of Manor Care Carlisle's corporate negligence, the Decedent died. WHEREFORE, Plaintiff, Gary D. Wolfe, individually and as Executor of the Estate of Violet M. Ward, demands judgment against Defendant Manor Care Carlisle in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa.R.C.P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering and all other damages, both economic and non - economic, as allowed by Pennsylvania law, COUNT V GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANOR CARE HEALTH SERVICES — CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P. (SURVIVAL ACTION 76. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 75 as if fully set forth herein. 77. The Plaintiff brings this action on behalf of Violet M. Ward's Estate pursuant to 20 Pa.C.S.A. § 3373 and 42 Pa.C.S.A. § 8302 for damages suffered by the Estate as a result of her death, as well as pain, suffering and inconvenience which the decedent underwent prior to her death as a result of the negligence of all Defendants. 78. As a direct and proximate result of the .negligence and carelessness of the Defendants as described herein, Violet M. Ward, died. 14 79. As a direct and proximate result of the negligence and carelessness of the Defendants as set forth herein, Violet M. Ward suffered physical pain, mental anguish, emotional distress, discomfort, loss of earnings, future earnings, social security and other benefits, including loss of life's pleasures. Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward makes a claim therefor, together with all other damages allowed and recoverable pursuant to Pennsylvania law. WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, pursuant to the Survival Statute, 42 Pa.C.S.A. § 8302, demands judgment against all Defendants, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa.R.Civ.P. 1021(c), together with interest, costs of suit, damages, and all other damages allowed by Pennsylvania law. COUNT VI GARY D. WOLFE, EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANOR CARE HEALTH SERVICES — CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P. ( WRONGFUL DEATH 80. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 79 as if fully set forth herein. 81. Plaintiff Gary D. Wolfe, Executor of the Estate of Violet M. Ward, brings this action pursuant to Pa. R. Civ. P. 2202(a) and 42 Pa.C.S.A. § 8301(d) as the personal representative of Violet M. Ward. 82. At no time did the decedent bring an action to recover damages for her personal injuries and no other action has been commenced to recover damages for her death. 15 83. The Decedent died without a surviving spouse or child and her parents are deceased. 84. Therefore, Plaintiff Gary D. Wolfe Executor of the Estate of Violet M. Ward, brings this action pursuant to Section 8301(d) of the Wrongful Death Statute. 85. As a direct and proximate result of all Defendants' negligence as set forth herein, Plaintiff has suffered and the Defendants are liable for the following damages: a. all reasonable and necessary funeral expenses; b. all medical expenses related to the negligence of all Defendants: and C. expenses of administration related to the decedent's injuries. WHEREFORE, Plaintiff Gary D. Wolfe, Executor of the Estate of Violet M. Ward, pursuant to the Wrongful Death Act, demands judgment against all Defendants, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa.R.Civ.P. 1021(c), together with interest, costs of suit, delay damages, and all other damages allowed by Pennsylvania law. RHOADS & SINON LLP C avid B. Dowling Jill Neary Weikert, Esquire One South Market Square, 12th Floor PO Box 1 146 Harrisburg, PA 17108 -1146 Telephone: (717) 233 -5731 Attorneys for Plaintiff Date: February O f 14 16 VERIFICATION I hereby affirm that the following facts are correct: I am the Plaintiff herein. The attached Complaint is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation of my lawsuit. The language of the Complaint is that of counsel and not of me. I have read the Complaint and, to the extent that the Complaint is based on information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Dated: a`/ 9// Y - C� ARY D. WLFE 936151.1 BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 By: Sean P. O'Mahoney, Esquire Identification No. 314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 Attorneys for Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C.R.N.P. : COURT OF COMMON PLEAS OF GARY D. WOLFE, Individually and as : CUMBERLAND COUNTY, PENNSYLVANIA Executor of the Estate of VIOLET M. WARD, v. Plaintiffs, NO. 14-1002 (-) -0 a MANORCARE HEALTH SERVICES- m CARLISLE, DARRYL GUISTWITE, D.O., cr) and LUCINDA C. BENDER, C.R.N.P., Defendants. >c.) <- c) 3;>c) c) ENTRY OF APPEARANCE ›- —H — 17 r>) TO THE PROTHONOTARY: Kindly enter our appearances as counsel for Defendants, Manor Care Health Services- Carlisle and Lucinda C. Bender, C.R.N.P. in the above-captioned matter. B HITE Dated: By: Wim J. Mundy, Esquire By: Jo M. Skrocki, Esquire By: Sean P. O'Mahoney, Esquire Identification Nos. 57679/49071/314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 Attorneys for Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C.R.N.P. CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance has been served by United States Mail, First Class, postage pre- paid, on this date, as follows: Date: David B. Dowling, Esquire Jill N. Weikert, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 BURNS WHITE LLC 2 FOULKROD ELLIS . pw6ed4ufa1 ettlitenariog. Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Jennifer M. Heilman, Esquire Attorney I.D. #82305 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 L i- (HE HOTHONOTAit 20111 MAR -5 AM H: 38 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Defendant, Darryl Guistwite, D.O. GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS Executor of the Estate of Violet M. Ward, CUMBERLAND COUNTY Plaintiff v. NO. 2014-1002 MANOR CARE HEALTH SERVICES- CARLISLE; DARRYL GUISTWITE, CIVIL ACTION — MEDICAL D.O.; and LUCINDA C. BENDER, PROFESSIONAL LIABILITY ACTION C.R.N.P., Defendants JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendant, Darryl Guistwite, D.O., in the above-captioned action. Date: Respectfully submitted, FOULKRI a EL S Profess' oration B : A ¶rew . Foulkrod, Esquire Court 1. No. 77394 andrew@foulkrod.com Jennifer M. Heilman, Esquire Court I.D. No. 82305 jennifer@foulkrod.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 4"/ day of /L/a Fr ,I- , 2014, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108 (Counsel for Plaintiff Manor Care Health Services - Carlisle 940 Walnut Bottom Road Carlisle, PA 17015 Lucinda C. Bender, C.R.N.P. 940 Walnut Bottom Road Carlisle, PA 17015 By: FOULKROD ELLIS PROFESSIONAL CORPORATION W41 / Christina W. Shaffer, Paralegal David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No, 208055 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 Email: ddowling@rhoads-sinon.com jweikert@rhoads-sinon.com A tiorneys for Plaintiff GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD, Plaintiff v. MANORCARE HEALTH SERVICES - CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., 940168.1 Defendants 1L'0-OF 1- JCL TE PROIFIONOTARY 2814 MAR 14 PM la: 37 CUMBERLAND COUNTY PENNSYLVANIA ) ) IN THE COURT OF COMMON PLEAS ) CUMBERLAND COUNTY, PENNSYLVANIA ) ) CIVIL ACTION - LAW ) ) NO. 2014-1002 - CIVIL ) ) ) ) ) ) ) JURY TRIAL DEMANDED ) ) CERTIFICATE OF MERIT AS TO DEFENDANT MANORCARE HEALTH SERVICES - CARLISLE I, David B. Dowling, Esquire, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed processional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed processionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR nexpert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: labOAL—._" 41 David B. Dowling, Esquire Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March, 2014, a true and correct copy of the foregoing Certificate of Merit was served by means of United States mail, first class, postage prepaid, upon the following: William J. Mundy, Esquire John M. Skrocki, Esquire Sean P. O'Mahoney, Esquire Burns White LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorney for Defendants Manor Care Services and Lucinda C. Bender) Andrew H. Foulkrod, Esquire Jennifer M. Heilman, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 (Attorneys for Defendant Darryl Guistwhite, D.O.) 3 David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No. 208055 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 Email: ddowling@rhoads-sinon.com jweikert@rhoads-sinon.com Attorneys far Plaintiff GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD, Plaintiff v. MANORCARE HEALTH SERVICES - CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., 940176.1 Defendants HLED-OFFR;L CF THE PROTHOHQ 2014 MAR 1 4 P1112: 37 CUMBERLAND COUNTY PENNSYLVANIA ) ) IN THE COURT OF COMMON PLEAS ) CUMBERLAND COUNTY, PENNSYLVANIA ) ) CIVIL ACTION - LAW ) ) NO. 2014-1002 - CIVIL ) ) ) ) ) ) ) JURY TRIAL DEMANDED ) ) CERTIFICATE OF MERIT AS TO DEFENDANT DARRYL GUISTWITE, D.O. I, David B. Dowling, Esquire, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate Date: licensed processional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed processionals in the treatment, practice or work that is the subject of the 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. 2 David B. Dowling, Esquire Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March, 2014, a true and correct copy of the foregoing Certificate of Merit was served by means of United States mail, first class, postage prepaid, upon the following: William J. Mundy, Esquire John M. Skrocki, Esquire Sean P. O'Mahoney, Esquire Burns White LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorney for Defendants Manor Care Services and Lucinda C. Bender) Andrew I-1. Foulkrod, Esquire Jennifer M. Heilman, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 (Attorneys for Defendant Darryl Guistwhite, D. O) - David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No. 208055 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 Email: ddowling@rhoads-sinon.com jweikert@rhoads-sinon.com Attorneys for Plaintiff GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD, Plaintiff v. MANORCARE HEALTH SERVICES - CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., 940177,1 Defendants 1=ILED-OFFiCF. THE PROTHONO i!:( Zelli MAR 14 PH 12: 37 CUMBERLAND COUNTY PENNSYLVANIA ) ) IN THE COURT OF COMMON PLEAS ) CUMBERLAND COUNTY, PENNSYLVANIA ) ) CIVIL ACTION - LAW ) ) NO. 2014-1002 - CIVIL ) ) ) ) ) ) ) JURY TRIAL DEMANDED ) ) CERTIFICATE OF MERIT AS TO DEFENDANT LUCINDA C. BENDER, C.R.N.P. I, David B. Dowling, Esquire, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate Date: licensed processional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed processionals in the treatment, practice or work that is the subject of the 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. 2 David B. Dowling, Esquire Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March, 2014, a true and correct copy of the foregoing Certificate of Merit was served by means of United States mail, first class, postage prepaid, upon the following: William J. Mundy, Esquire John M. Skrocki, Esquire Sean P. O'Mahoney, Esquire Burns White LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorney for Defendants Manor Care Services and Lucinda C. Bender) Andrew H. Foulkrod, Esquire Jennifer M. Heilman, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 (Attorneys for Defendant Darryl Guistwhite, D.0.) 3 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY Qfir^' „e4- of THE $ :RIFF- Gary D. Wolfe vs. ManorCare Health Services Carlisle (et al.) Case Number 2014 -1002 SHERIFF'S RETURN OF SERVICE 02/25/2014 09:40 AM - Deputy Noah Cline, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Dan Fessler, administrator, who accepted as "Adult Person in Charge” for Lucdinda C Bender, CRNP at 940 Walnut Bottom Road, South Middleton, Carlisle, PA 17015. NOAH CLINE, DEPUTY 02/25/2014 09:40 AM - Deputy Noah Cline, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Dan Fessler, administrator, who accepted as "Adult Person in Charge" for ManorCare Health Services Carlisle at 940 Walnut Bottom Road, South Middleton Township, Carlisle, PA 17015. NOAH CLINE, DEPUTY 02/26/2014 01:51 PM - Deputy Ronald Hoover, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Michelle Guistwite, wife, who accepted as "Adult Person in Charge" for Darryl K. Guistwite, D.O. at 56 Ashton Street, Dickinson Township, Carlisle, PA 17013. RONALD HOOVER, DEPUTY SHERIFF COST: $73.56 SO ANSWERS, February 28, 2014 RONN R ANDERSON, SHERIFF (c) Coun €ySuite Sheriff, Te ecseft, Inc. FILED-OFFICE FOULKROD ELLIS 2rofessiona1Coreordion Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Jennifer M. Heilman, Esquire Attorney I.D. #82305 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 ..,:i ... f-r\u rhuilu It-six t 2014 MAR 1 9 PH 1 : 28 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Defendant, Darryl Guistwite, D.O. GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS Executor of the Estate of Violet M. Ward, CUMBERLAND COUNTY Plaintiff v. NO. 2014-1002 MANOR CARE HEALTH SERVICES- CARLISLE; DARRYL GUISTWITE, CIVIL ACTION — MEDICAL D.O.; and LUCINDA C. BENDER, PROFESSIONAL LIABILITY ACTION C.R.N.P., Defendants JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT DARRYL GUISTWITE, D.O. TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Darryl Guistwite, D.O. ("Dr. Guistwite" or "Moving Defendant"), by and through his counsel, Foulkrod Ellis, P.C., to file Preliminary Objections to Plaintiff's Complaint and in support thereof avers as follows: 1. Plaintiff initiated this medical malpractice action by filing a Complaint that was served on Moving Defendant on February 28, 2014. 2. Plaintiff alleges inter alia that Moving Defendant was negligent in failing to monitor Plaintiff-decedent's anticoagulation therapy. 3. Plaintiff Gary D. Wolfe ("Mr. Wolfe") brings this action individually and as executor of the Estate of Violet M. Ward. Preliminary Objection to Mr. Wolfe's claims (for negligence and for survival damages) in an individual capacity 4. At Paragraphs 48 -52 of Plaintiffs Complaint, Mr. Wolfe, individually and as Executor of the Estate of Violet M. Ward, attempts to make a claim of negligence against Dr. Guistwite. 5. At Paragraphs 76 -79 of Plaintiffs Complaint, Mr. Wolfe, individually and as Executor of the Estate of Violet M. Ward, attempts to bring a survival action against Dr. Guistwite. 6. Mr. Wolfe, in his capacity as an individual, has no standing for such claims. 7. The only standing to file suit for such claims arises out of Mr. Wolfe's capacity as executor of Ms. Ward's estate, which is not being challenged. WHEREFORE, Defendant Darryl Guistwite, D.O., respectfully requests that this Honorable Court enter the attached order striking Gary D. Wolfe's claims in an individual capacity. Date: 3,/rrny 2 Respectfully submitted, FOULKROD ELLIS Professional Corporation By: Andrew H. Foulkrod, Esquire Court I.D. No. 77394 andrew@ foulkrod.com Jennifer M. Heilman, Esquire Court I.D. No. 82305 jennifer@foulkrod.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 1.8 day of MOILCJA , 2014, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108 (Counsel for Plaintifj) John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Counsel for Manor Care and Lucinda Bender, CRNP) FOULKROD ELLIS PROFESSIONAL CORPORATION By: Cryst 1 L. Nemetz, Secret4y BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 By: Sean P. O'Mahoney, Esquire Identification No. 314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 i 2..T.t APR f.l'; 10: 3 1 OU;13ERLANO COUNTY PE'N'AX.1,71-Q1Ar Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C.R.N.P. : COURT OF COMMON PLEAS OF GARY D. WOLFE, Individually and as : CUMBERLAND COUNTY, PENNSYLVANIA Executor of the Estate of VIOLET M. WARD, v. Plaintiffs, • : NO. 14-1002 MANORCARE HEALTH SERVICES- CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., Defendants. PRELIMINARY OBJECTIONS OF DEFENDANTS, MANOR CARE HEALTH SERVICES-CARLISLE AND LUCINDA C. BENDER, C.R.N.P., TO PLAINTIFF'S COMPLAINT Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C.R.N.P. (hereinafter "Objecting Defendants"), by and through their counsel, Burns White LLC, hereby file these Preliminary Objections to the Complaint, and aver as follows: 1. Plaintiff's Complaint was filed on or about February 21, 2014. (Exhibit "A" contains a true and correct copy of the Complaint). 2. Certificates of Merit were served on or about March 13, 2014. 3. Plaintiff alleges inter alia that Objecting Defendants were negligent in failing to monitor Plaintiff-decedent's anticoagulation therapy while she was a resident at Manor Care Health Services-Carlisle from August 17, 2012 to August 30, 2012. 4. The action is brought by Gary D. Wolfe, the decedent's companion for 21 years. (See Exhibit "A" at ¶ 1). Mr. Wolfe purports to bring this action individually, and as Executor of the Estate of Violet M. Ward. 5. On August 19, 2012, Mr. Wolfe signed a Voluntary Arbitration Agreement on behalf of the decedent. (Exhibit "B"). 6. Objecting Defendants now submit the instant Preliminary Objection to seek enforcement of the Arbitration Agreement. A. PLAINTIFF'S CLAIMS AGAINST OBJECTING DEFENDANTS SHOULD BE SUBMITTED TO ARBITRATION PURSUANT TO THE ARBITRATION AGREEMENT BETWEEN THEM 7. Pennsylvania Rule of Civil Procedure 1028(a)(6) permits a preliminary objection on the basis of "agreement for alternative dispute resolution." 8. When a party seeks to compel arbitration, the trial court's inquiry is limited to determining whether a valid arbitration agreement was entered into, and, if so, whether the dispute in question is within the scope of the arbitration provision. H.L. Libby Corp. v. Skelly and Loy Inc., 910 F. Supp. 195, 199 (1995), citing PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa.Super. 371, 377, 632 A.2d 903, 905 (1993). 9. Pennsylvania law requires that a signed, written agreement subjecting any potential controversy to arbitration must be, "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract." 42 Pa. C.S.A. § 7303. 10. Pennsylvania Courts strongly favor the settlement of disputes via arbitration. Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). Moreover, "when parties agree to arbitration in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements." Id. [quotation omitted]. 11. The Plaintiff Mr. Wolfe signed the Arbitration Agreement two days into the decedent's admission to the Manor Care facility. (Exhibit "B "). The Arbitration Agreement provides as follows: "All claims arising out of or relating to this Agreement, the Admission Agreement or any and all past or future admissions of the Patient at this Center [...] shall be submitted to arbitration." (Exhibit "B" at ¶ 1). 12. The arbitration provision constitutes an agreement between the instant parties to submit disputed claims arising from the matters which are the subject of Plaintiff's Complaint to arbitration. 13. Cumberland County Court of Common Pleas has previously upheld Manor Care Arbitration Agreements. See e.g. Fleagle v. Manor Care of Camp Hill, et al., No. 12 -0828 CI; Frysinger v. Manor Care of Carlisle, et al., No. 12 -6981 CI; and Dougherty v. Manor Care — Carlisle, et al., No. 13 — 00102 CI. 14. Since there is a valid, enforceable written Arbitration Agreement, the Court should enter an order enforcing same. WHEREFORE, Objecting Defendants respectfully request that this Honorable Court uphold the Arbitration Agreement, and direct that Plaintiff submit the claims against Objecting Defendants to arbitration. B. GARY D. WOLFE, IN HIS INDIVIDUAL CAPACITY, LACKS STANDING TO BRING THE UNDERLYING CLAIMS FOR SURVIVAL DAMAGES 15. Pennsylvania Rule of Civil Procedure 1028(a)(5) permits a preliminary objection on the basis of "lack of capacity to sue." 16. At Paragraphs 53-75 of the Complaint, the Plaintiff Mr. Wolfe, individually makes a claim for damages against Objecting Defendants. 17. At Paragraphs 76-79 of Plaintiff s Complaint, Mr. Wolfe, individually sets forth a survival claim against Objecting Defendants. 18. Mr. Wolfe, in his capacity as an individual, has no standing for such claims. 19. The only standing to file suit arises out of Mr. Wolfe's capacity as Executor of Ms. Ward's Estate. WHEREFORE, Objecting Defendants respectfully request that this Honorable Court enter the attached order striking Gary D. Wolfe's claims in an individual capacity. Dated: BURNS WHITE Ittt6 By: IF J. Mundy, Esquire By: Jo . Skrocki, Esquire By: Sean P. O'Mahoney, Esquire Identification Nos. 57679/49071/314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 Attorneys for Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C.R.N.P. CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that a true and correct copy of the foregoing Preliminary Objections of Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C.R.N.P. to Plaintiff's Complaint have been served by United States Mail, First Class, postage pre-paid, on this date, as follows: David B. Dowling, Esquire Jill N. Weikert, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Counsel for Plaintiff Andrew H. Foulkrod, Esquire Jennifer M. Heilman, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Counsel for Defendant, Darryl Guistwite, D.O. BURNS WHITE L C 7 David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No. 208055 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108 -1146 Telephone: Facsimile: Email: jweikert@rhoads - sinon.com Attorneys for Plaintiff (717) 233 -5731 (717) 238 -8623 ddowling @rhoads - sinon.com GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD, Plaintiff v. MANORCARE HEALTH SERVICES - CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., Defendants F. , PRO IHON CUMBERLAND 4FEB21 41110:47 PENNS ANIANT y )) IN THE COURT OF COMMON PLEAS ) CUMBERLAND COUNTY, PENNSYLVANIA ) CIVIL ACTION - LAW NO. j "l - IOW- bin JURY TRIAL DEMANDED ). NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249 -3166 642311.1 642311. David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No. 208055 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 Email: ddowling@rhoads-sinon.com jweikert@rhoads-sinon.com Attorneys for Plaintiff ) GARY D. WOLFE, Individually and as ) IN THE COURT OF COMMON PLEAS Executor of the Estate of VIOLET M. ) CUMBERLAND COUNTY, PENNSYLVANIA WARD, ) ) CIVIL ACTION - LAW Plaintiff ) ) NO. v. ) ) ) ) ) ) ) JURY TRIAL DEMANDED MANORCARE HEALTH SERVICES - CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., Defendants ) ) COMPLAINT NOW COMES, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, by and through his attorneys, Rhoads & Sinon LLP, and files the within Complaint and in support thereof avers the following: PARTIES 1. Plaintiff, Gary D. Wolfe, is the Executor of the Estate of Violet M. Ward and is an adult individual who resides at 1491 Simpson Ferry Road, New Cumberland, Cumberland County, Pennsylvania 17070. Mr. Wolfe was the companion of Violet M. Ward, the Decedent, for twenty one (21) years prior to her untimely death. 933047.2 2. Defendant ManorCare Health Services — Carlisle (hereinafter " ManorCare Carlisle ") is a licensed nursing home and rehabilitation facility in the Commonwealth of Pennsylvania located at 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17015. 3. Defendant Darryl Guistwite, D.O. (hereinafter "Dr. Guistwite"), is an adult individual and physician and licensed healthcare provider with a business address of 56 Ashton Street, Carlisle, Cumberland County, Pennsylvania 17015. 4. At all relevant times, Dr. Guistwite was an employee, agent, servant, ostensible or apparent agent, acting within the scope of his employment for Defendant ManorCare Carlisle. 5. Dr. Guistwite is currently an employee, agent, servant, apparent agent, and /or ostensible agent of ManorCare Carlisle. 6. Defendant Lucinda C. Bender (Ms. Bender), upon information and belief, is an adult individual and certified registered nurse practitioner (CRNP) and licensed healthcare provider with a business address of 940 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17015. 7. At all relevant times, Ms. Bender was an employee, agent, servant, ostensible or apparent agent, acting within the scope of her employment for Defendant ManorCare Carlisle. VENUE 8. Venue is proper in the Court of Common Pleas of Cumberland County in that the treatment provided to Violet M. Ward by the Defendants occurred in Cumberland County while she was a patient at ManorCare Carlisle. FACTUAL BACKGROUND 9. On July 24, 2012, Violet M. Ward (hereinafter "Ms. Ward" or the "Decedent "), age 53, was seen and treated in the Emergency Department of Holy Spirit Hospital for abdominal pain and vomiting. 10. On July 25, 2012, Ms. Ward underwent an exploratory laparotomy with resection of a small portion of non - viable small bowel due to ischemia. Her abdomen was reopened on July 26, 2012, an additional portion of the small bowel was removed and the remaining bowel ends were surgically re- connected. 11. Ms. Ward had additional surgery on July 27, 2012 to repair a serosal tear, fluid was removed from the abdomen and a Wittmann patch was used to cover her abdomen. 12. Following her abdominal surgeries, Ms. Ward was on a ventilator in the intensive care unit at Holy Spirit Hospital and was receiving broad spectrum antibiotics. 13. While hospitalized at Holy Spirit, Ms. Ward received several blood transfusions and her anticoagulation medications were monitored daily by hospital staff and a consulting Hematologist. 14. Ms. Ward had a history of liver disease and esophageal varices, which combined with her recent abdominal surgery, placed her at significant risk for bleeding with anticoagulation, but at the same time, her risk for clotting without anticoagulation was also significant. 15. Due to her condition and medical history, it was imperative that Ms. Ward's anticoagulation therapy be monitored closely. 3 16. Between July 31 and August 7, 2012, Ms. Ward's blood urea nitrogen ( "BUN ") and creatinine rose significantly and she was diagnosed as having acute kidney failure, which required several rounds of dialysis. 17. On August 10, 2012, Ms. Ward was awake, mouthing words, and her condition was gradually improving. At this time, the staff at Holy Spirit Hospital began facilitating plans to transfer Ms. Ward to a long term acute care or a nursing home facility. 18. At all times during her hospitalization at Holy Spirit Hospital, Ms. Ward's anticoagulation therapy was monitored daily and an order was written to call each day with her International Normalized Ratio ( "INR ")' results for purposes of adjusting her Coumadin dosage. 19. On August 17, 2012, Ms. Ward was discharged from Holy Spirit Hospital to ManorCare Carlisle. 20. The discharge order from Holy Spirit Hospital included the following medications: Cordarone 200 mg daily, Lovenox 150 mg twice daily, Levemir 14 units SQ daily, Novolog 4 units SQ daily, Novlog sliding scale, Snythroid 200 mcg daily, Lopressor 25 mg• twice daily, Nystatin powder to affected area three times — per day, Protonix 40 mg daily, Prednisone 10 mg daily, Coumadin 5 mg daily, Xanax 0.5 mg every four hours as needed for anxiety, Tylenol 650 mg every 6 hours as needed for mild pain and fever. 21. The discharge instructions indicated that Ms. Ward's INR should be maintained between 2 and 3. 22. Upon discharge from Holy Spirit Hospital, Ms. Ward's prognosis was good. Prothombin Time /International Normalized Ratio ( "PT /INR ") is a blood test used to measure the clotting tendency of the blood and to monitor the function of the anticoagulant warfarin ( "Coumadin "). 4 r 23. On August 17, 2012, the nursing staff at ManorCare Carlisle admitted an alert, oriented individual who was able to express needs and answer questions appropriately. 24. On August 17 and 18, 2012, the nurses' notes indicated that Ms. Ward had blood - tinged mucous which required attention. 25. Ms. Ward had a Foley catheter inserted on August 19, 2012 due to urinary retention and the nurses on duty noted blood in Ms. Ward's urine and in her wound vac. 26. On August 20, 2012, Lucinda C. Bender, Certified Registered Nurse Practitioner (C.R.N.P.), evaluated Ms. Ward and left a note summarizing the evaluation as follows: "53 years old female admitted 8/17/12 from Holy Spirit Hospital (admitted 7/25 with ischemic bowel, nausea and vomiting started two weeks prior to admission) -> Holy Spirit Hospital, small bowel resection, reopening and additional resection, cardioversion (atrial fibrillation), developed acute renal failure, ventilator dependence, hemodialysis catheter requested, portal vein thrombosis." 27. At the time of the examination with Nurse Practitioner Bender, Ms. Ward complained of increased abdominal pain. 28. Nurse Practitioner Bender listed Lovenox and Cordarone as medications, but omitted Coumadin from the list. Her assessment plan did not address anticoagulation. 29. A PT /INR was ordered for August 20, 2012 and the results were listed as 22/1.9. A note to recheck PT /INR in one week was written on a lab slip initialed by "CB," but there was no corresponding physician's orders on August 20, 2012 for anticoagulation dosing or for the date of the next PT /INR lab test. 5 30. With respect to anticoagulation medications administered at ManorCare Carlisle, Ms. Ward was given Lovenox 150 mg twice daily, Cordarone 200 mg once daily, and Coumadin 5 mg daily beginning on August 18, 2012. 31. Cordarone enhances the effect of Coumadin, thus increasing the risk of bleeding. 32. Ms. Ward's PT/INR was drawn on Monday, August 20, 2012, and her INR was 1.9, which was close to the therapeutic level recommended in Holy Spirit's discharge instructions. 33. On August 22, 2012, a physician order was written at 3:40 p.m. and signed by Dr. Guistwite to recheck Ms. Ward's PT/INR in one week. 34. On August 22, 2012, a member of the ManorCare Carlisle nursing staff noted that Ms. Ward had blood in her urine and hours later, another member of the nursing staff observed tea colored urine. 35. On August 23, 2012, a physician order was written and signed by Nurse Practitioner Bender to recheck PT/INR in one week. 36. On August 29, 2012, a physician order was written and signed by a nurse to check PT /1NR and CBC. 37. On August 29, Dr. Guistwite noted that Ms. Ward had persistent nausea and vaginal bleeding. 38. At all times during her admission to ManorCare Carlisle, Ms. Ward had a poor appetite, was unable to feed herself and was not taking in proper nutrition. 39. On August 30, 2012, Dr. Guistwite indicated that Ms. Ward was alert, oriented and communicative. He signed an order to recheck Ms. Ward's PT/INR the following day. 6 40. According to Manor Care Carlisle's records, Ms. Ward's PT/INR was not checked between August 20 and August 30, 2012. 41. On August 30, 2012, Ms. Ward's PT/INR was checked and her results were critically high at >100/>11.7. 42. At the time these critical lab results were received, Ms. Ward was at her surgeon's office for an appointment regarding her abdominal wound. 43. During transport back to Manor Care Carlisle from her surgeon's office, it was observed that Ms. Ward was bleeding from her abdomen and she was instead taken to the Holy Spirit Hospital emergency department. 44. Ms. Ward was readmitted to Holy Spirit Hospital on August 30, 2012 with a severe abdominal bleed. She required multiple units of fresh frozen plasma and packed red blood cells. 45. Ms. Ward developed frank renal failure and persistent acidosis and her prognosis warranted comfort measures, which were employed by hospital staff. 46. On August 31, 2012, all treatment was stopped, Ms. Ward was placed on a morphine drip and she died. 47. The cause of death listed on Ms. Ward's death certificate was abdominal wound hemorrhage and coagulopathy. COUNT I GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. DARRYL GUISTWITE, D.O. (NEGLIGENCE) 48. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 47 as if fully set forth herein. 7 49. At all relevant times, Defendant Darryl Guistwite, D.O. held himself out to be a healthcare provider who possessed the skill and knowledge in his specialty and held himself out to the public as so qualified. 50. The negligence of Dr. Guistwite consisted of the following acts and omissions which are to be read in conjunction with paragraphs 1 through 47: (a) failing to order and obtain a PT /INR every 24 -72 hours in a high risk patient; (b) failing to become aware of the soonest opportunity to reduce Coumadin dosing and eliminate Lovenox; (c) failing to ensure that the Decedent was receiving proper nutrition; (d) failing to recognized the harmful effects of Lovenox on a patient with recent renal failure; (e) failing to ensure that orders to recheck the Decedent's PT/INR were followed; (f) failing to recognize the dangerous interaction between Coumadin, Lovenox and Cordarone; (g). failing to respond to multiple reports of bleeding and potential bleeding in the Decedent, as observed by the nursing staff; (h) failing to order more frequent INR testing; (i) allowing the Decedent's PT /INR to reach a dangerously high level; and (j) failing to appropriately supervise and monitor the actions and assessments of Lucinda C. Bender, C.R.N.P. 51. The conduct of Dr. Guistwite, as described herein, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 52. As a direct and proximate result of the negligence and conduct of Dr. Guistwite as set forth herein, the Decedent's condition deteriorated, causing pain and suffering, malnutrition, internal bleeding, and ultimately, death. 8 WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, demands judgment against Defendant Darryl Guistwite, D.O. in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R. Civ. P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering, and all other damages, both economic and non - economic, as allowed by Pennsylvania law. COUNT II GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. LUCINDA C. BENDER, C.R.N.P. (NEGLIGENCE) 53. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 47 as if fully set forth herein. 54. At all times relevant times, Defendant Lucinda C. Bender, CRNP, held herself out to be a licensed certified registered nurse practitioner who possessed the skill and knowledge in her specialty and held herself out to the public as so qualified. 55. The negligence of Nurse Practitioner Bender consisted of the following acts and omissions, which are to be read in conjunction with paragraphs 1 through 47: (a) failing to include Coumadin in the Decedent's list of admission report; (b) failing to order and obtain, a PT /INR every 24 -72 hours in a high risk (c) edications in the patient; failing to become aware of the soonest opportunity to reduce Coumadin dosing and eliminate Lovenox; (d) failing to ensure that the Decedent was receiving proper nutrition; (e) failing to recognized the harmful effects of Lovenox on a patient with recent renal failure; 9 (0 failing to ensure that written orders to recheck the Decedent's PT/TNR were followed by staff; (g) failing to recognize the dangerous interaction between Coumadin, Lovenox and Cordarone; (h) (i) a) failing to respond to multiple reports of bleeding and potential bleeding in the Decedent, as observed by the nursing staff; failing to order more frequent INR testing; and allowing Decedent's PT/INR to reach a dangerously high level. 56. The conduct of Nurse Practitioner Bender, as described herein, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 57. As a direct and proximate result of the negligence and conduct of Nurse Practitioner Bender as set forth herein, the Decedent's condition deteriorated, causing pain and suffering, malnutrition, internal bleeding, and ultimately, death. WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as 'Executor of the Estate of Violet M. Ward, demands judgment against Defendant Lucinda C. Bender, C.R.N.P., in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R. Civ. P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering, and all other damages, both economic and non-economic, as allowed by Pennsylvania law. COUNT III GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANORCARE HEALTH SERVICES —CARLISLE (RESPONDEAT SUPERIOR) 58. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 60 as if fully set forth herein. 10 59. The negligent and Willful conduct of ManorCare Carlisle, operating by and through its agents, apparent agents, ostensible agents, servants and employees, including Dr. Guistwite and Lucinda C. Bender, C.R.N.P., consists of the following acts and omissions which are to be read in conjunction with paragraphs 1 through 57: (a) failure of the physician staff to order follow -up PT /INR every 24 -72 hours in a high risk patient; (b) failure to formulate a plan to monitor the Decedent's anticoagulation therapy; (c) failing to become aware of the soonest opportunity to reduce Coumadin dosing and eliminate Lovenox; (d) failing to ensure that the Decedent was receiving proper nutrition; (e) failing to recognized the harmful effects of Lovenox on a patient with recent renal failure; (f) failing to ensure that written orders to recheck the Decedent's PT /INR were followed by staff; (g) failing to recognize the dangerous interaction between Coumadin, Lovenox and Cordarone; (h) failing to respond to multiple reports of bleeding and potential bleeding in the Decedent, as observed by the nursing staff; failing to order more frequent INR testing; and (j) allowing Decedent's PT/INR to reach a dangerously high level. 60. The conduct of the agents, apparent agents, ostensible agents, servants and employees of ManorCare Carlisle, as described herein, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 61. As a direct and proximate result of the negligence and conduct of ManorCare Carlisle as set forth herein, the Decedent's condition deteriorated. causing pain and suffering. malnutrition, internal bleeding, and ultimately, death. 11 WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward demands judgment against the Defendant, ManorCare Health Services — Carlisle, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R. Civ. P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering and all other damages, both economic and non - economic, as allowed by Pennsylvania law. COUNT IV GARY WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANOR CARE HEALTH SERVICES — CARLISLE (CORPORATE NEGLIGENCE) 62. Plaintiff incorporated by reference the allegations set forth in paragraphs 1 through 61 as if fully set forth herein. 63. Manor Care Carlisle had a duty to select and retain only competent physicians. 64. As set forth above, the negligence and conduct of Dr. Guistwite and C. Bender, CRNP, fell below the standard of care, increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 65. Manor Care Carlisle also had a duty to oversee all persons who practice medicine in its facilities, including certified registered nurse practitioners. 66. As set forth above, the negligence and conduct of Dr. Guistwite and the physician staff at Manor Care Carlisle, in failing to appropriately supervise and monitor the actions and assessments of Lucinda C. Bender, C.R.N.P., increased the risk of harm to the Decedent and was a substantial contributing factor in her death. 67. Manor Care Carlisle failed to adopt and /or enforce adequate policies and procedures for the adequate communication between its physicians, certified registered nurse 12 practitioners, and nursing personnel concerning patient care responsibility. Manor Care Carlisle knew that this failure would lead to inadequate treatment of patients and jeopardize their safety. 68. Manor Care Carlisle had a duty to formulate, adopt and enforce rules and policies to ensure a patient's safety and well- being, and to see that such rules and policies were known and followed by all agents and employees of the nursing home. 69. As set forth above, Manor Care Carlisle failed to implement and follow through on an adequate and safe procedure for checking the PT /INR levels of a patient who was undergoing anticoagulant therapy and had a high risk of bleeding. 70. It is believed and therefore averred that Manor Care Carlisle was not adequately staffed, which resulted in the failure to follow up on orders to recheck the Decedent's P]' /INR levels, the failure to adequately respond to reports of signs of internal bleeding, the failure to ensure that the Decedent was receiving proper nutrition, and the failure to ensure that orders in the Decedent's chart were followed as written. 71. Had Manor Care Carlisle been adequately staffed, the Decedent would have received a higher level of care, which would have prevented her death from abdominal wound hemorrhage and coagulopathy. 72. The policies of Manor Care Carlisle and/or lack thereof caused the Decedent to receive inadequate treatment in managing her anticoagulation therapy through the appropriate dosage of medication and performing regular checks of her. PT /INR levels, which led to fatal internal bleeding and hemorrhage. 73. Manor Care Carlisle knew of the deficiencies in its policies and procedures and further knew that these deficiencies would jeopardize the health and safety of its patients and 13 indeed could lead to the death of its patients. Nevertheless, Manor Care Carlisle allowed the policies and procedures to continue. 74. As a direct and proximate result of said policies and/or lack of policies by Manor Care Carlisle, the Decedent suffered severe and permanent injuries and ultimately, death. 75. As a direct and proximate result of Manor Care Carlisle's corporate negligence, the Decedent died. WHEREFORE, Plaintiff, Gary D. Wolfe, individually and as Executor of the Estate of Violet M. Ward, demands judgment against Defendant Manor Care Carlisle in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa.R.C.P. 1021(c), together with interest, costs of suit, delay damages, pain and suffering and all other damages, both economic and non-economic, as allowed by Pennsylvania law. COUNT V GARY D. WOLFE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANOR CARE HEALTH SERVICES — CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P. (SURVIVAL ACTION) 76. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 75 as if fully set forth herein. 77. The Plaintiff brings this action on behalf of Violet M. Ward's Estate pursuant to 20 Pa.C.S.A. § 3373 and 42 Pa.C.S.A. § 8302 for damages suffered by the Estate as a result of her death, as well as pain, suffering and inconvenience which the decedent underwent prior to her death as a result of the negligence of all Defendants. 78. As a direct and proximate result of the negligence and carelessness of the Defendants as described herein, Violet M. Ward, died. 14 79. As a direct and proximate result of the negligence and carelessness of the Defendants as set forth herein, Violet M. Ward suffered physical pain, mental anguish, emotional distress, discomfort, loss of earnings, future earnings, social security and other benefits, including loss of life's pleasures. Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward makes a claim therefor, together with all other damages allowed and recoverable pursuant to Pennsylvania law. WHEREFORE, Plaintiff Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, pursuant to the Survival Statute, 42 Pa.C.S.A. § 8302, demands judgment against all Defendants, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa.R.Civ.P. 1021(c), together with interest, costs of suit, damages, and all other damages allowed by Pennsylvania law. COUNT VI GARY D. WOLFE, EXECUTOR OF THE ESTATE OF VIOLET M. WARD V. MANOR CARE HEALTH SERVICES — CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P. (WRONGFUL DEATH 80. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 79 as if fully set forth herein. 81. Plaintiff Gary D. Wolfe, Executor of the Estate of Violet M. Ward, brings this action pursuant to Pa. R. Civ. P. 2202(a) and 42 Pa.C.S.A. § 8301(d) as the personal representative of Violet M. Ward. 82. At no time did the decedent bring an action to recover damages for her personal injuries and no other action has been commenced to recover damages for her death. 15 83. The Decedent died without a surviving spouse or child and her parents are deceased. 84. Therefore, Plaintiff Gary D. Wolfe Executor of the Estate of Violet M. Ward, brings this action pursuant to Section 8301(d) of the Wrongful Death Statute. 85. As a direct and proximate result of all Defendants' negligence as set forth herein, Plaintiff has suffered and the Defendants are liable for the following damages: a. all reasonable and necessary funeral expenses; b. all medical expenses related to the negligence of all Defendants: and c. expenses of administration related to the decedent's injuries. WHEREFORE, Plaintiff Gary D. Wolfe, Executor of the Estate of Violet M. Ward, pursuant to the Wrongful Death Act, demands judgment against all 'Defendants, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa.R.Civ.P. 1021(c), together with interest, costs of suit, delay damages, and all other damages allowed by Pennsylvania law. Date: FebruaryA0 f5 1 4 RHOADS & SINON LLP )avid B. Dowling Jill Neary Weikert, Esquire One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108 -1146 • Telephone: (717) 233 -5731 Attorneys for Plaintiff 16 VERIFICATION I hereby affirm that the following facts are correct: I am the Plaintiff herein. The attached Complaint is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation of my lawsuit. The language of the Complaint is that of counsel and not of me. I have read the Complaint and, to the extent that the Complaint is based on information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Dated: 93615IA VOLUNTARY AX'TRA,TION AGREEMENT f "AGREEIV -M THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE OR JURY OF ANY DISPUTE BETWEEN THEM. PLEASE READ CAREFULLY BEFORE SIGNING. THE PATIENT WILL RECEIVE SERVICES IN THIS CENTER WHETHER OR NOT THIS AGREEMENT IS SIGNED, ARBITRA'T'ION IS DESCRIBED IN THE VOLUNTARY ARBITRATION PROGRAM BROCHURE COPY, ATTACHED AND MADE PART OF THIS AGREEMENT. Made on i3(I4-10- (date) by and between the Patient YW L4 wit/ or Patient's Legal Representative G73-A-Y WbL (collectively referred to as "Patient ") and the Center tnn e—W-S- • - SA -0'- 1. Agreement to Arbitrate `mantes ": All claims arising out of or relating to this Agreement, the Admission Agreement or any and all past or future admissions of the Patient at this Center, or any sister Center operated by any subsidiary of HCR ManorCare, Inc.( "Sister Center "), including claims for malpractice, shall be submitted to arbitration. Nothing in this Agreement prevents the Patient from filing a complaint with the Center or appropriate governmental agency or from seeking review under any applicable law of any decision to involuntarily discharge or transfer the Patient. 2. Demand for Arbitration: shall be written, sent to the other Party by certified mail, return receipt requested. 3. FAA: The Parties agree and intend that this Agreement, the Admission Agreement and the Patient's stays at the Center substantially involve interstate commerce, and stipulate that the Federal Arbitration Act ("FAA") and applicable federal case law apply to this Agreement, preempt any inconsistent State law and shall not be reverse preempted by the McCarran- Ferguson Act; United States Code Title 15, Chapter 20, or other law. Any amendment to such version of the FAA is hereby expressly waived. 4. Arbitration Panel: Three (3) arbitrators (the "Panel ") shall conduct the arbitration. Each Party will select one Arbitrator, the two selected Arbitrators will select a third. Pach Arbitrator must be a retired State or Federal Judge or a Member of the State Bar where the Center is located with at least 10 years of experience as an attorney. The Panel will elect a Chief Arbitrator who will be responsible for establishing and resolving issues pertaining to procedure, discovery, admissibility of evidence, or any other issue. 5. Sole Decision Maker: Except as otherwise provided in 6 below, the Panel is empowered to, and shall, resolve all disputes, including without limitation, any disputes about the making, validity, enforceability, scope, interpretation, voidability, unconscionability, preemption, severability and/or waiver of this Agreement or the Admission Agreement, as well as resolve the Parties' underlying disputes, as it is the Parties' intent to avoid involving the court system. The Panel shall not have jurisdiction to certify any person as a representative of a class of persons and, by doing so, adjudicate claims of persons not directly taking part in Arbitration. 6. Procedural Rules and Substantive Law: The Panel shall apply the State 2Zules of Evidence and State Rules of Civil Procedure except where otherwise stated in this Agreement. Also, the Panel shall apply, and the arbitration award shall be consistent with, the State substantive law, including statutory damage caps, for the State in which the Center is located, except as otherwise stated in this Agreement or where preempted by the FAA. The Panel's award must be unanimous and shall be served ne later than 7 working days after the arbitration hearing. The award must state the Panels' findings of fact and conclusions of law, shall be marked "confidential ", and must be signed by all three Arbitrators. If any damages are awarded, the award must delineate specific amounts for each type of damages awarded, i.e. economic, non - economic, etc. The failure of the Panel to issue a unanimous award creates an appealable issue, appealable to the appropriate court, in addition to those set forth in paragraph 7, below. In the event the appellate court finds a non - unanimous award invalid as against law or this Agreement, the award shall be vacated and the arbitration dismissed without prejudice. A subsequent arbitration, if any, of the same claim or claims shall remain subject to the terms of this Agreement 7. Final with Limited Rights to Review (Appeal): The Panel's award binds the Parties. The Parties have a limited right of appeal for only the express reasons allowed by the FAA or as provided in 6, above. EO /T0 39t1d NIWQd 32IVObONGW /P9OBP LIL ZT :TT OTOZ /E0/E0 8. Right to Change Your Mind; T' ' Agreement may be cancelled by written `ice sent by certified mail to the Center's Administrator within 30 calendar days of the Patient's date of admissive. If alleged aots underlying the dispute occur before the cancellation date, this Agreement shall be binding with respect to those alleged amt. If not cancelled, this Agreement shall be binding on the Patient for this and all of the Patient's subsequent admissions to the. Center or any Sister Center without any need for further renewal. 9. Binding on Parties & Others: The Parties intend that this Agreement shall benefit and bind the Center, its parent, affiliates, and subsidiary companies, and shall benefit and bind the Patient (as defined herein), his/her successors, spouses, children, next of kin, guardians, administrators, and legal representatives. 10. Fees and Costs: The Panels' fees and costs will be paid by the Center except in disputes over non: payment of Center charges wherein such fees and costs will be divided equally between the Parties. The Parties shall bear their own attorney fees and costs in relation to all preparation for and attendance at the arbitration hearing. 11, Confidentiality: The arbitration proceedings shall remain confidential in all respects, including all filings. deposition transcripts, discovery documents, or other materials exchanged between the Parties and the Panels' award. In addition, following receipt of the Panels' award, each Party agrees to return to the producing Patty within 30 days the original and all copies of documents exchanged in discovery and at the arbitration Hearing. 12. Non - waiver of this Agreement: A waiver of the right to arbitrate a specific Dispute or series of Disputes, as described above, does not relieve any Party from the obligation to arbitrate other Disputes, whether asserted as independent claims or as permissive or mandatory counterclaims, unless each such claim is also individually waived. With multiple Patient admissions, the presentation of an arbitration agreement at a later admission to the Center or a Sister Center shall not constitute a waiver by the Center of a prior signed arbitration agreement. 13. Severability: Except as provided in 6, any provision contained in this Agreement is severable, and if a provision is found to be unenforceable under State or Federal law, the remaining provisions of this Agreement shall remain in force and effect. This Agreement represents the Parties' entire agreement regarding Disputes, supersedes any other agreement relating to disputes, and may only be changed in writing signed by all Parties. This Agreement shall remain in full force and effect notwithstanding the termination, cancellation or natural expiration of the Admission Agreement, 14. Health Care Decision: The Parties hereby stipulate that the decision to have the Patient move into this Center and the decision to agree to this Agreement are each a health care decision. The Parties stipulate that there are other health care facilities in this community currently available to meet the Patient's needs. THE PARTIES CONFIRM THAT EACH OF THEM UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO TRIAL BEFORE A JUDGE OR JURY AND THAT EACH CONSENTS TO ALL OF THE TERMS OF THIS VOLUNTARY AGREEMENT. PATIENT ACKNOWLEDGES THE RIGHT TO REVIEW THIS AGREEMENT WITH AN ATTORNEY OR FAMILY BEFORE SIGNING. PATIENT: Printed Name PATIENT'S LEGAL REPRESENTATIVE: L( Gi4P.a.� D. WO Lk- Printed Name Signature of Patien CENTER REPRESENTATIVE Signature of Center Representative 9 /tq /j'2- (Date) Signature of ' atient's Lega ' - presentative` in his/her Representative capacity Signature Individua atient's Legal Representative should sign on both lines above c oa 3 Vd NIICV ZeN0 ON 2 0% 'f Patient's Le apacity the phrase epresentati ve in his/her nt's x.eg Lt7906t3LIL Representative." Zt :tt bT.97 /FR /F2 PRAECIPE FOR LISTING CASE FOR A GU ENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court) DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT CAPTION OF CASE (entire caption must be stated in full) GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD, V. MANORCARE HEALTH SERVICES- CARLISLE, DARRYL GUISTWITE, D.O., and • LUCINDA C. BENDER, C.R.N.P. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 14-1002 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff: David B. Dowling, Esquire address: Jill N. Weiker, Esquire RHOADS & SINON LLP One South Market Square, 12Th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (b) for defendant: Sean P. O'Mahoney, Esquire address: Burns White LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 3. I will notify all parties in writing within two days that this case has been listed for argument. (continued on page 2) 1 CtMA S\ iSpA att. ZM Z-)V1 4. Argument Court Date: Dated: 3 /3 May 9, 2014 Signature Sean P. O'Mahoney, Esquire BURNS WHITE LLC Attorneys for Defendants, Manor Care Health Services - Carlisle and Lucinda C. Bender, C.R.N.P. INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 2 CERTIFICATE OF SERVICE I, Sean P. O'Mahoney, Esquire, hereby certify that I am this day serving a copy of the foregoing Praecipe for Argument of ManorCare Defendants' Preliminary Objections to Plaintiffs' Complaint setting argument for May 9, 2013 has been served upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, First-Class, postage prepaid, addressed as follows: David B. Dowling, Esquire Jill N. Weikert, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Counsel for Plaintiff Date: gr,Vict Andrew H. Foulkrod, Esquire Jennifer M. Heilman, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Counsel for Defendant, Darryl Guistwite, D.O. BURNS WHITE LLC Sean P. O'Mahnoney Commonwealth of Pennsylvania County of Cumberland Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services- Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14 -1002 eturn of Service On the O "� day of , r/1/ , Yr. (77o / , I, Y eit' T,z , "( - , served with the foregoing subpoena by (describe the method of service): ❑ Personally delivering a copy to: Rrtified mail to: Person served (name): Custodian of Records Address where served: Holy Spirit Hospital/Medical Records Department 503 N. 21st St. Camp Hill, PA 17011 I verify that the statements in this return of service are true and correct. 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. ,97/z-/ ate Name of Witness Name of Person Served 10 -200 (Rev. 7/99) (Reverse) W.O. # 280688 -001 pa_ros_140_1 Commonwealth of Pennsylvania County of Cumberland Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services - Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, On the 1, v RmeY (describe the method of service): nPersonally delivering a copy to: Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14 -1002 Return of Service day of Certified mail to: Person served (name): Address where served: n fin , Yr. a0/ , served with the foregoing subpoena by Custodian of Records Holy Spirit Hospital/Billing Department 503 N. 21st St. Camp Hill, PA 17011 I verify that the statements in this return of service are true and correct. 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. /o /t/ ate Name of Witness 10 -200 (Rev. 7/99) (Reverse) W.O. # 280688 -002 Name of Person Served pa_ros_140_1 Commonwealth of Pennsylvania County of Cumberland Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services - Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14 -1002 Return of Service On the day of I, %'d eWe L 7II'Y)O/ , served with the foregoing subpoena by , Yr.,976P4 (describe the method of service): Pe onally delivering a copy to: Certified mail to: Person served (name): Address where served: Cufian of Records Holy Spirit Hospital/Radiology Department 503 N. 21st St. Camp Hill, PA 17011 I verify that the statements in this return of service are true and correct. 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. Dd'te Name of Witness Name of Person Served 10 -200 (Rev. 7/99) (Reverse) W.O. # 280688 -003 pa_ros_140_1 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind, and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services-Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s) Court of Common Pleas CIVIL ACTION Case Number: 14-1002 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), intends to serve a subpoena identical to the one that is attached to this notice. To: Custodian Of Records, Holy Spirit Hospital/Billing Department, 503 N. 21st St., Camp Hill, PA 17011 Custodian Of Records, Holy Spirit Hospital/Medical Records Department, 503 N. 21st St., Camp Hill, PA 17011 Custodian Of Records, Holy Spirit Hospital/Radiology Department, 503 N. 21st St., Camp Hill, PA 17011 You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Date: 3/13/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O. # 280688 pa_ttoi_145„.2 14-1002 Page 1 of 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Notice oflntent to Serve Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was delivered to: David 13. Dowling, Esquire Rhoads & Sinon, LLP One S. Market Sq., 12th Fir. Harrisburg, PA 17108 Attorney fbr Plaintiffs) First Class Mail Fax Certified Mail Overnight Express X Personal Service John Skrocki, Esquire X First Class Mail Law Office of John Skrocki Fax ____ 100 Four Falls, Suite 515, 1001 Conshohocken State Road Certified Mail West Conshohocken, PA 19428 _Overnight Express Attorney for Defendant(s) __Personal Service Manor Care Health Services and Lucinda Bender, CRNP Date: 3/13/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O. 280688 14-1002 Page 2 of 2 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), Vs. Manor Care Health Services-Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case No.: 14-1002 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received, and; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 4/2/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney jin. Defendant(s), Darryl Guistwite, D.O. W.O. # 280688 pa_cptss Page 1 of 1 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gaty D. Wolfe, End. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services-Carlisle; Darryl Guisrwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas 'CIVIL ACTION Case Number: 14 -1002 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian Of Records, Holy Spirit Hospital/Medical Records Department, 503 N. 21st St., Camp Hill, PA 17011 ' Re: Violet M. Ward DOB: UNKNOWN SSN: UNKNOWN • Within tweiity (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Medical Records; See "Attachment A." at Second Image National, 1805 Monument Ave., Ste. 208, Richmond, VA 23220, Fax: (800) 611 -4555 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 address listed above. You have the right to seek in advance the reasonable cost ot'preparing thc'copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) clays 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: Andrew 11. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909 -7006 Fax: (717) 909 -6955 SUPREME COURT ID NO.: 77394 Attorney pr Defer:dmiffs), • v s -A t3Y %3/2W/ W.O. 11 280688 -001 • BY THE COURT: 2■••‘-er_LI Prothonotary/Clerk, Civ, Division . 14 -1002 Page 1 of 2 Attachment A Re: Name: Violet M. Ward DOB: UNKNOWN SSN: UNKNOWN Complete medical records from 2012 to the present, including but not limited to any records /documents that may be stored digitally and/or electronically: documents, medical reports, doctor's entries, nurse's notes, progress reports, cardiology reports, radiology reports, x -ray reports, MR1 reports, CT reports, myelogram reports, lab reports, pathology reports, monitor strips, physical therapy rccords, cast history, emergency records, diagnosis, prognosis, condition, and admit and discharge records. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. W.O. # 280688 -uu I a W ltla_t 14 -t002 Page 2 of 2 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), V. Manor Care Health Services- Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Conunon Pleas • CIVIL ACTION Case Number: 14 -1002 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian Of Records, Holy Spirit Hospital/Billing Department, 503 N. 21st St., Camp Hill, PA . 17011 ' Re: Violet M. Ward DOB: UNKNOWN SSN: UNKNOWN Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Billing Records; See "Attachment A." at Second Image National, 1805 Monument Ave., Ste. 208, Richmond, VA 23220, Fax: (800) 611 -4555 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 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: Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909 -7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defei'dant(s). Darryl Guistwite; D.O. I.►I •I�tf� ,■ k)ik /u Q,4! Date: ;\\ • Sea oC theCourn.. • BY THE COU Prothonotary/Clerk, Civil �Division . / / r/ji ;e16/20' W.O. N 280688 =002 1 1 i 14 -1002 Page 1 of 2 Attachment A Re: Name: Violet M. Ward DOB: UNKNOWN SSN: UNKNOWN Complete billing records from 2012 to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: charges, explanation of benefits, payments, adjustments, write-offs, balances due, and itemized billing charges pertaining to any and all care, treatment, and/or examinations. All billing emails between physicians and the patient, including secure messages. W.O. # 280688-002 o of 111 1 14-1002 Page 2 of 2 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services- Carlisle; Darryl Guistwite, D.Q.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14 -1002 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian Of Records, Holy Spirit Hospital/Radiology Department, 503 N. 2l st St, Camp Hill, PA 17011 Re: Violet M. Ward DOB: UNKNOWN SSN: UNKNOWN Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: X -Rays / MRTs / CT scans; See "Attachment A." at Second Image National, 1805 Monument Ave., Ste. 208, Richmond, VA 23220, Fax: (800) 611 -4555 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 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: Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 . Phone: (717) 909 -7006 Fax: (717) 909 -6955 SUPREME COURT'ID NO.: 77394 Attontey for Defeladant(s). Darryl Gtiistwite;tDD O. .. - \�.... . .. ♦ „/I 17aie• �Sealroltth un : •. v , `." ti /'1 '11.1- {4•D 't'1Tlii' BY THE COURT: 124.12;L/ Prothonotary/Clerk, Civil Division W.O. # 280688 -003 2 Page 1 of 2 Attachment A Re: Naine: Violet M. Ward DOB: UNKNOWN SSN: UNKNOWN Complete radiological images of any sort from 2012 to the presen but not limited to any items that may be stored digitally and/or electronically: x-rays, MRI's, CT's, myelograms, tomograms, MRA's, PET scans, CAT scans, fluoroscopy, documents including sign-out sheets or communications which demonstrate that any items were checked out from or removed from your facility, radiology reports, x-ray reports, MR] reports, CT reports, myelogram reports, and any other radiology reports. All approved radiological iuzagcuozuatbnprnducud on film or on a DICOM compliant CD only. Pnor to duplication, please provide a breakdown ofall radiology images in your possession, custody, or control. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. W.O. # 280688-003 14-1002 Page 2 of 2 r ' • "","." FOULKROD ELLIS Pw6edaoseal eaVenatioN Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Jennifer M. Heilman, Esquire Attorney ID. #82305 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 ZOILIAPR 114 PH 1: 19 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Defendant, Darryl Guistwite, D.O. GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS Executor of the Estate of Violet M. Ward, CUMBERLAND COUNTY Plaintiff v. NO. 2014-1002 MANOR CARE HEALTH SERVICES- CARLISLE; DARRYL GUISTWITE, CIVIL ACTION — MEDICAL D.O.; and LUCINDA C. BENDER, PROFESSIONAL LIABILITY ACTION C.R.N.P., Defendants JURY TRIAL DEMANDED ANSWER OF DEFENDANT DARRYL GUISTWITE, D.O. TO PRELIMINARY OBJECTIONS OF DEFENDANTS, MANOR CARE HEALTH SERVICES-CARLISLE AND LUCINDA C. BENDER, C.R.N.P. TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Darryl Guistwite, D.O. ("Dr. Guistwite"), by and through his counsel, Foulkrod Ellis, P.C., and answers the Preliminary Objections of Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C.R.N.P. ("Objecting Defendants"), to Plaintiffs Complaint as follows: 1.- 19. Dr. Guistwite is not a party to the Arbitration Agreement attached as Exhibit "B" to Objecting Defendants' Preliminary Objections, and Dr. Guistwite has no obligation to submit the disputed claims arising from the matters which are the subject of Plaintiff's Complaint to arbitration, and should be exempted from any order from the Court regarding the same. WHEREFORE, Defendant Darryl Guistwite, D.O., respectfully requests that this Honorable Court exempt Dr. Guistwite from any order directing Plaintiff to submit the claims against Objecting Defendants to arbitration. Date: 2 Respectfully submitted, FOULKROD ELLIS Professional Corporation By: Andre H. Foulkrod, Esquire Court I.D. No. 77394 andrew@foulkrod.com Jennifer M. Heilman, Esquire Court I.D. No. 82305 jennifer@foulkrod.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this /11-6 day of 2pc-'7' / , 2014, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108 (Counsel for Plaintiff) John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Counsel for Manor Care and Lucinda Bender, CRNP) FOULKROD ELLIS PROFESSIONAL CORPORATION By: A LLIIttif Christina W. Shaffer, Paralegal FOULKROD ELLIS VrofessionalCorporation Andrew H. Foulkrod, Esquire Attorney I.D. #77394 r Jennifer M. Heilman, Esquire Attorney I.D. #82305 4000 Market Street 4 APR I 7 Ph' 1: 59 IBERLAND COUNTY PENNSYLVANIA . Camp Hill, PA 17011 Phone: (717) 909-7006 Attorney for Defendant, Fax: (717) 909-6955 Darryl Guistwite, D.O. GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS Executor of the Estate of Violet M. Ward, CUMBERLAND COUNTY Plaintiff v. NO. 2014-1002 MANOR CARE HEALTH SERVICES- CARLISLE; DARRYL GUISTWITE, CIVIL ACTION — MEDICAL D.O.; and LUCINDA C. BENDER, PROFESSIONAL LIABILITY ACTION C.R.N.P., Defendants JURY TRIAL DEMANDED ECIPE TO FILE STIPULATION OF COUNSEL TO STRIKE GARY D. WOLFE'S CLAIMS IN AN INDIVIDUAL CAPACITY TO THE PROTHONOTARY: Please file of record the attached Stipulation of Counsel to Strike Gary D. Wolfe's Claims in an Individual Capacity. Date: Vicl;ZNY By: FOULKROD ELLIS Professional Corporation Andre oulkrod, Esquire Jennifer Heilman, Esquire 4000 Market Street Camp Hill, PA 17011 Attorneys for Attorney for Defendant, Darryl Guistwite, D.O. FOULKROD ELLIS Pro fessionalCorporation Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Jennifer M. Heilman, Esquire Attorney I.D. #82305 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909 -7006 Attorney for Defendant, Fax: (717) 909 -6955 Darryl Guistwite, D.O. GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS Executor of the Estate of Violet M. Ward, CUMBERLAND COUNTY Plaintiff v. NO. 2014 -1002 MANOR CARE HEALTH SERVICES - CARLISLE; DARRYL GUISTWITE, CIVIL ACTION — MEDICAL D.O.; and LUCINDA C. BENDER, PROFESSIONAL LIABILITY ACTION C.R.N.P., Defendants JURY TRIAL DEMANDED STIPULATION OF COUNSEL TO STRIKE GARY D. WOLFE'S CLAIMS IN AN INDIVIDUAL CAPACITY IT IS HEREBY stipulated and agreed by the parties that Gary D. Wolfe's claims in an individual capacity are hereby stricken with prejudice from Plaintiffs Complaint. Date: Vitg0/ Date: Date: 413�7-0/ Vi/v A rew H. oulkrod, Esquire Jennifer M. Heilman, Esquire 4000 Market Street Camp Hill, PA 17011 (Counsel for Defendant Darryl Guistwite, D.O.) 2 avid B. Dow ing, Esquire Rhoads & Sinon, LLP One South Market Square, 12th i or P.O. Box 1146 Harrisburg, PA 17108 (Counsel for Plaintif i Joh - .. krocki, Esquire Bu +:, ite 10o Four Falls, Suite 515 1o01 Conshohocken State Road West Conshohocken, PA 19428 (Counsel for Manor Care and Lucinda Bender, CRNP) CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this j day of Atti , 2014, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108 (Counsel for Plaintifj) John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Counsel for Manor Care and Lucinda Bender, CRNP) By: FOULKROD ELLIS PROFESSIONAL CORPORATION Crysta L. Nemetz, Secreta David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No. 208055 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108 -1146 Telephone: (717) 233 -5731 Facsimile: (717) 238 -8623 Email: ddowling @rhoads- sinon.com jweikert@rhoads- sinon.com Attorneys for Plaintiff GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD„ ) Plaintiff ) ) v. ) ) MANOR CARE HEALTH SERVICES - ) CARLISLE, DARRYL GUISTWITE, ) D.O. and LUCINDA C. BENDER, ) C.R.N.P., ) ) ) Defendants ICU-OFFICE Or i HE PROTHONOTARY 2014 APR 17 PM it 30 CUMBERLAND COUNTY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 14 -1002 JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS OF DEFENDANTS, MANOR CARE HEALTH SERVICES - CARLISLE AND LUCINDA C. BENDER, C.R.N.P. NOW COMES, Plaintiff Gary D. Wolfe ( "Plaintiff' or "Mr. Wolfe "), as Executor of the Estate of Violet M. Ward, by and through his counsel, Rhoads & Sinon LLP, and files the within Response to the Preliminary Objections of Defendants Manor Care Health Services — Carlisle and Lucinda C. Bender, C.R.N.P. (collectively referred to as "Objecting Defendants ") as follows: 1. The Complaint is a written document that speaks for itself. It is admitted that a true and correct copy of the Complaint is attached to Objecting Defendants' Preliminary Objections as Exhibit A. 2. Admitted. 943125.1 3. Denied as stated. The Complaint is a written document that speaks for itself. Plaintiff denies Objecting Defendant's characterization of the matter as being limited to a failure "to monitor Plaintiff - decedent's anticoagulation therapy while she was a resident at Manor Care Health Services- Carlisle from August 17, 2012 to August 30, 2012. 4. Admitted. By way of clarification, the parties have entered into and filed a stipulation by which all parties have agreed that Mr. Wolfe's claims in his individual capacity are to be stricken with prejudice from the Complaint. 5. The Arbitration Agreement is a written document that speaks for itself. It is admitted that the Arbitration Agreement is attached to Objecting Defendants' Preliminary Objections as Exhibit B. 6. No responsive pleading is required. A. PLAINTIFF'S CLAIMS AGAINST OBJECTING DEFENDANTS SHOULD NOT BE SUBMITTED TO ARBITRATION WHERE THE AGREEMENT IS NOT A VALID AND ENFORCEABLE AGREEMENT. 7. Admitted. 8. It is admitted only that Objecting Defendants have accurately stated the trial court's standard of review. By way of further response, "arbitration is a matter of contract and absent an agreement between the parties to arbitrate an issue, they cannot be compelled to arbitrate." PBS Coal, Inc. v. Hardhat Min., Inc., 377, 632 A.2d 903, 905 (Pa. Super. 1993) (citing Shapiro v. Keystone Ins. Co., 558 A.2d 891, 894 (Pa. Super. 1989)). Furthermore, arbitration agreements "are to be strictly construed and should not be extended by implication." Id. (citations omitted). 9. Admitted. 2 10. Denied as stated. While Pennsylvania has a well-established public policy that favors arbitration and aligns with the federal approach expressed in the Federal Arbitration Act ("FAA"), this policy "was not intended to render arbitration agreements more enforceable than other contracts." Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. 2013), appeal denied, 2014 WL 815475 (Pa. Feb. 25, 2014) (citation omitted). "Arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue." Id. at 661. Despite the policy of favoring settlement of disputes by arbitration, "arbitration agreements are to be strictly construed and such agreements should not be extended by implication." Id. 11. The Arbitration Agreement is a written document that speaks for itself. It is admitted that Mr. Wolfe signed the Arbitration Agreement on August 19, 2012, purporting to act on behalf of Violet Ward as her legal representative. Plaintiff specifically denies that the Arbitration Agreement is a valid or enforceable agreement to arbitrate all claims. 12. Paragraph 12 of Objecting Defendants' Preliminary Objections is a conclusion of law to which no responsive pleading is required. In the event and to the extent it is deemed not to be a conclusion of law, it is specifically denied. 13. It is admitted that the cases cited by Defendants involved cases where Manor Care Arbitration Agreements were upheld by the Cumberland County Court of Common Pleas. The opinions in the cases cited by Objecting Defendants are written documents that speak for themselves. It is specifically denied that these cases are controlling or even analogous to the instant case where Plaintiff was not Violet M. Ward's legal representative, guardian or attorney- in-fact at the time he signed the Arbitration Agreement. It is further denied that the Arbitration Agreement applies to Plaintiff s wrongful death and survival claims. 3 14. Paragraph 14 of Objecting Defendants' Preliminary Objections is a conclusion of law to which no responsive pleading is required. In the event and to the extent it is deemed not to be a conclusion of law, it is specifically denied. WHEREFORE, Plaintiff Gary D. Wolfe, as Executor of the Estate of Violet M. Ward, respectfully requests that this Honorable Court overrule Defendants' Preliminary Objection pursuant to Rule 1028(a)(6). B. GARY D. WOLFE LACKS STANDING TO BRING THE 'UNDERLYING CLAIMS FOR SURVIVAL DAMAGES IN HIS INDIVIDUAL CAPACITY. 15. Admitted. 16. The Complaint is a written document that speaks for itself. 17. The Complaint is a written document that speaks for itself. 18. Admitted. The parties entered into a Stipulation to Strike Gary D. Wolfe's Claims in an Individual Capacity. 19. Admitted. WHEREFORE, the Stipulation entered into by all parties in this matter renders this Preliminary Objection moot. Date: April 16, 2014 By: 4 RHOADS & SINON,LLP -Y1. WeAteivt d B. Dowling Ji Weikert One South Market Square P. 0. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this /6 day of April, 2014, a true and correct copy of the foregoing Plaintiff's Answer to Preliminary Objections of Defendants Manor Care Health Services- Carlisle and Lucinda C. Bender, C.R.N.P., was served by means of United States mail, first class, postage prepaid, upon the following: William J. Mundy, Esquire John M. Skrocki, Esquire Sean P. O'Mahoney, Esquire Burns White LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorneys for Defendants, Manor Care Health Services-Carlisle and Lucinda C. Bender, C. R. N. P. Andrew H. Foulkrod, Esquire Jennifer M. Heilman, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendant, Darryl Guistwite, D.O. FOULKROD ELLIS Paadea¢io ca€ eazfiazatioa Andrew H. Foulkrod, Esquire Attorney I.D. #77394'i 4000 Market Street Camp Hill, PA 17011. Phone: (717) 909-7006 Fax: (717) 909-6955 '' / /r' Vit+ h / tri I /OiN(� f; '. HAY i 3 j; r -11 t, , F� Y PENNSY' Cf�LJ ,/- ',, A�1/f Attorney for Defendant, Darryl Guistwite, D.O. GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS Executor of the Estate of Violet M. Ward, CUMBERLAND COUNTY Plaintiff v. NO. 2014-1002 MANOR CARE HEALTH SERVICES - CARLISLE; DARRYL GUISTWITE, CIVIL ACTION — MEDICAL D.O.; and LUCINDA C. BENDER, PROFESSIONAL LIABILITY ACTION C.R.N.P., Defendants JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Jennifer M. Heilman, Esquire on behalf of Defendant, Darryl Guistwite, D.O., in the above -captioned action. Jenni er M. Heilman, Esquire Court I.D. No. 82305 PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Eric Lauerman, Esquire on behalf of Defendant, Darryl Guistwite, D.O., in the above -captioned action. Date: s - f Respectfully submitted, FOULKROD ELLIS Professional Corporation By: Eric Lauerman, Esquire Court I.D. No. 316180 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this ( day of , 2014, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108 (Counsel for PlaintifD John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Counsel for Manor Care and Lucinda Bender, CRNP) By: FOULKROD ELLIS PROFESSIONAL CORPORATION Crystal L. Nemetz, Secretary OF THE PROTHONG i, F ( GARY D. WOLFE, Individually and anito HA 19 AM it: Oc' Executor of the Estate of VIOLET M. WARD, CUMBE"L; Plaintiff PEN ' i�l�� �iA v. MANORCARE HEALTH SERVICES — CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., Defendants Countp of itumbtrtanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 14-1002 CIVIL ACTION IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS, MANOR CARE HEALTH SERVICES — CARLISLE AND LUCINDA C. BENDER, C.R.N.P., TO PLAINTIFF'S COMPLAINT Q► ORDER OF COURT AND NOW, this l-1 day of May 2014, upon consideration of the Preliminary Objections of Defendants, Manor Care Health Services — Carlisle and Lucinda C. Bender, C.R.N.P., to Plaintiff's Complaint, Plaintiff's Answer thereto, briefs filed by both parties, and following argument held on 9 May 2013, IT IS HEREBY ORDERED AND DIRECTED that: 1. This matter is assigned to Hubert X. Gilroy, Esquire, Discovery Master, who shall meet with the parties in an attempt to resolve their discovery issues. Discovery Master Gilroy will be compensated by the Parties at the rate of $230.00 per hour. 2. The Discovery Master shall file with the Court a brief status report on the Parties discovery progress every 45 days from the date of this Order. 3. The Discovery Master shall file with the Court a final report indicating that the parties have resolved their discovery issues or listing those issues which remain unresolved and will require court hearing. Additionally, the final report shall make warranted against any party. The final recommendation may include but is not limited to an award of counsel fees, and allocation of the Master's fee. This recommendation shall be based on the Master's determination of whether any party violated the discovery rules or has taken action made in bad faith or for the purpose of delay. BY THE COURT, Thomas A. Placey Distribution: Jill Weikert, Esquire Sean P. O'Mahoney, Esquire Court Administrator Aubert X. Gilroy, Esquire 4) Discovery Master 0/eb cw-Lb it.crukol ric \oerrnon,Es . 7-s'em\cse \--\emoaN,Esq 2 C.P.J. f$ David B. Dowling, Esquire Attorney ID No. 25452 Jill N. Weikert, Esquire Attorney ID No. 208055 Rhoads & Sinon LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Tele: (717) 233-5731 Fax: (717) 238-8622 E: ddowling(u�rhoads-sinon.com jweikert(arhoads-sinon. com Attorneys for Plaintiff GARY D. WOLFE, Individually and : as Executor of the Estate of VIOLET M. WARD, Plaintiff v. MANORCARE HEALTH SERVICES - CARLISLE, DARRYL GUTSTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2014-1002 Defendants : JURY TRIAL DEMANDED PLAINTIFF'S OBJECTIONS TO DEFENDANT DARRYL GUISTWITE, D.O.'S SUBPOENAS DIRECTED TO GEORGE KUNKEL, M.D., PA GASTROENTEROLOGY, AND PINNACLE FAMILY CARE CENTER NOW COMES Plaintiff, Gary D. Wolfe, Individually and as Executor of the Estate of Violet M. Ward, by and through his attorneys, Rhoads & Sinon LLP, and objects to the proposed subpoenas that are attached to these objections as Exhibit "A", for the following reasons: 1. On or about June 9, 2014, Defendant, Darryl Guistwite, D.O. served a Notice of Intent to Serve Subpoenas to Produce Documents for Discovery Directed to (1) George Kunkel, M.D.; (2) PA Gastroenterology; and (3) Pinnacle Family Care Center. 955242.1 2. The Notice of Intent to Serve Subpoena to Produce Documents for Discovery Directed to (1) George Kunkel, M.D.; and (3) Pinnacle Family Care Center has no date restriction and asks for "Complete medical records, billing records, and radiology images from the first date of treatment to the present..." 3. The Notice of Intent to Serve Subpoena to Produce Documents for Discovery Directed to (2) PA Gastroenterology has a date restriction and asks for "Complete medical records, billing records, and radiology images from 11/2003 to 07/2012. 4. Specifically, Defendant Darryl Guistwite, D.O.'s Subpoena (1) to George Kunkel, M.D. and (3) to Pinnacle Family Care Center, as above described, request the following: "Complete medical records, billing records, and radiology images from the first date of treatment to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: documents, medical reports, doctor's entries, nurse's notes, progress notes, cardiology reports, radiology reports, x-ray reports, MRI reports, lab reports, pathology report, monitor strips, physical therapy records, case history, emergency records, diagnosis, prognosis, condition, admit and discharge records, charges, explanation of benefits, payments, adjustments, write-offs, balances due, itemized billing charges, X-rays, MRI's, CT's myelograms, tomograms, MRA's, PET scans, CAT scans, fluoroscopy, documents including sign -out sheets or communications which demonstrate that any items were checked out from or removed from your facility, radiology reports, x-ray reports, MRI reports, CT reports, myelogram reports, cardiology reports, and any other radiology reports. All approved radiology images must be produced on film or on a DICOM compliant CD only. Prior to duplication, please provide a breakdown of all radiology images in your possession, custody, or control. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. 5. Specifically, Defendant Darryl Guistwite, D.O.'s Subpoena (2) to PA Gastroenterology, as above described, requests the following: "Complete medical records, billing records, and radiology images from 11/2003 to 07/2012, including but not limited to any records/documents that may be stored digitally and/or electronically: documents, medical reports, doctor's entries, nurse's notes, progress notes, cardiology reports, radiology reports, x-ray reports, MRI reports, lab reports, pathology report, monitor strips, physical therapy records, case history, emergency records, diagnosis, prognosis, condition, admit and discharge records, charges, explanation of benefits, payments, adjustments, write-offs, balances due, itemized billing charges, X-rays, MRI's, CT's myelograms, tomograms, MRA's, PET scans, CAT scans, fluoroscopy, documents including sign -out sheets or communications which demonstrate that any items were checked out from or removed from your facility, radiology reports, x-ray reports, MRI reports, CT reports, myelogram reports, cardiology reports, and any other radiology reports. All approved radiology images must be produced on film or on a DICOM compliant CD only. Prior to duplication, please provide a breakdown of all radiology images in your possession, custody, or control. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. To include any and all of these records from Louis Leite, D.O. 6. Plaintiff objects to the subpoenas issued to the aforementioned providers because the method by which the records have been requested is improper and contrary to Pennsylvania law. The correct method is outlined in Beaston v. Benaknin, PICS Case No. 11-4170 (C.P. Lebanon Sept. 19. 2011), attached hereto as Exhibit "B". In Beaston, the court examined this issue. Defense counsel argued that plaintiff should be required to sign authorizations allowing defense counsel to obtain plaintiff's medical records 1. 1 There is no material difference between a subpoena to the Plaintiff's healthcare providers, and requiring Plaintiff to sign an authorization allowing access to the same records. Relying upon Slayton v. Biebel and Deluca v. Leon, the court concluded that a defendant cannot compel the plaintiff to sign a blanket authorization and he outlined the proper procedure: "When a Defendant desires medical records, a request for production of documents should be submitted. If the Plaintiff does not have the requested documents already in hand, the Plaintiffs lawyer can obtain those documents via a medical authorization release form signed by his client. Once in hand, the Plaintiff's lawyer can review the documents and disclose everything that he deems to be relevant. More germane to the issue at hand, the Plaintiff's lawyer will also be required to identify all documents not produced "with reasonable particularity together with the basis for non -production." In this way, the Defendant will be advised of what is being withheld. Should the Defendant's perception regarding the relevance of these documents differ from that of Plaintiff, the issue can be submitted to a Court which can, if necessary, examine the document in camera before rendering a decision." Judge Charles' Opinion is attached hereto as Exhibit "C". It is therefore respectfully submitted that this Court should follow the precedent in Slayton v. Biebel, 37 Pa. D.&C. 4th 140,142 (C.P. 1998); Deluca v. Leon, 1 Pa. D.&C.3d 185 (1977 WL 684); and Beaston v. Benaknin, PICS Case No. 11-4170 (C.P. Lebanon Sept. 19, 2011). This procedure requires Plaintiff's counsel to first obtain the records and assuming the documents are relevant 2. proceed in the fashion outlined by the court in Beaston. This would require any documents not produced to be identified with reasonable particularity in a privilege log and provide to Defense counsel. See also, 2 The above -captioned medical malpractice occurred in August, 2012. Records dating back to 11/2003 may not be relevant. Appleman, et al. v. Feathers, et al., 79 Pa. D.&C. 4th 353 (Blair County, 2006), attached hereto as Exhibit "D". The Court of Common Pleas of Dauphin County has adopted a similar procedure. In the attached Order, Exhibit "E", the trial court in Reed v. Tyson allowed the Defense to send subpoenas to the medical providers, however, the records first had to be sent to Plaintiff's counsel, which preserved the privilege and allowed for an in -camera inspection should that be necessary. More recently, this issue was before the Court of Common Pleas in Franklin County in Rosenberry v. Webber. President Judge Herman held, consistent with other courts which have examined this issue, that the Defendant is not entitled to direct access to the Plaintiff's medical records. The remedy fashioned by President Judge Herman required the medical records to be sent to Plaintiff's counsel who would then have thirty (30) days to review the documents and redact any information which may be privileged. Thereafter, a privileged log must be produced. A copy of President Judge Herman's Order is attached hereto and marked as Exhibit "F". An injured victim is allowed to enjoy confidentiality with respect to medical information that is both personal and irrelevant to the litigation at hand. RHOADS & SIN® LP B Date: June 17, 2014 avid B. Dowling Jill N. Weikert One South Market Square, P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this 10 day of June, 2014, a true and correct copy of the foregoing "Plaintiff's Objections to Defendant Darryl Guistwite, D.O.'s Subpoenas Directed to George Kunkel, M.D., PA Gastroenterology and Pinnacle Family Care Center" was served by means of United States mail, first class, postage prepaid, upon the following: Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 (Attorneys for Defendant Darryl Guistwite, D.O.) John Skrocki, Esquire Law Office of John Skrocki 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorneys for Defendant Manor Care Health Services and Lucinda Bender, CRNP) ,sdid&.406 /614-i COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s) v. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s) Court of Common Pleas CIVIL ACTION Case Number: 14-1002 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), intends to serve a subpoena identical to the one that is attached to this notice. To: Custodian Of Records, George Kunkel, M.D., 2405 Linglestown Rd., Harrisburg, PA 17110 Custodian Of Records, PA Gastroenterology Associates, 899 Poplar Church Rd., Camp Hill, PA 17011 Custodian Of Records, Pinnacle Family Care Center, 506 S. State Rd., Marysville, PA 17053 You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Date: 6/9/2014 /S/ Andrew H. Foulkrod Andrew H. Foul trod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Daryl Guistwite, D.O. W.O. # 286805 pu noi_145 2 14-1002 Page 1 of 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Notice of Intent to Serve Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was delivered to: David B. Dowling, Esquire Rhoads & Sinon, LLP One S. Market Sq., 12th Flr. Harrisburg, PA 17101 Attorney for Plaintiffs) John Skrocki, Esquire Law Office of John Skrocki 100 Four Falls, Suite 515, 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorney for Defendant(s) Manor Care Health Services and Lucinda Bender, CRNP Date: 6/9/2014 X First Class Mail Fax Certified Mail _Overnight Express Personal Service X First Class Mail Fax Certified Mail _Overnight Express Personal Service /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O. # 286805 pans 14$1 14-1002 Page 2 of 2 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14-1002 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian Of Records, Pinnacle Family Care Center, 506 S. State Rd., Marysville, PA 17053 Re: Violet M. Ward DOB: 09/18/1958 SSN: XXX -XX -3546 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Billing Records; Medical Records; X -Rays / MRIs / CT scans; See "Attachment A." at Second Image National, 1805 Monument Ave., Ste. 208, Richmond, VA 23220, Fax: (800) 611-4555 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 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: Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. BY THE COURT: Date: Prothonotary/Clerk, Civil Division Seal of the Court W.O_ # 286805-001 14_1(117 �Re t .1 Attachment A Re: Name: Violet M. Ward DOB: 09/18/1958 SSN: XXX -XX -3546 Complete medical records, billing records, and radiology images from the first date of treatment to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: documents, medical reports, doctor's entries, nurse's notes, progress reports, cardiology reports, radiology reports, x-ray reports, MRI reports, lab reports, pathology reports, monitor strips, physical therapy records, case history, emergency records, diagnosis, prognosis, condition, admit and discharge records, charges, explanation of benefits, payments, adjustments, write-offs, balances due, itemized billing charges, X-rays, MRI's, CT's, myelograms, tomograms, MRA's, PET scans, CAT scans, fluoroscopy, documents including sign -out sheets or communications which demonstrate that any items were checked out from or removed from your facility, radiology reports, x-ray reports, MRI reports, CT reports, myelogram reports, cardiology reports, and any other radiology reports. All approved radiology images must be produced on film or on a DICOM compliant CD only. Prior to duplication, please provide a breakdown of all radiology images in your possession, custody, or control. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. To include any and all records from Kendra Davis, M.D. W.O. # 286805-001 14-1001 P2rtr -sf 7 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14-1002 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian Of Records, PA Gastroenterology Associates, 899 Poplar Church Rd., Camp Hill, PA 17011 Re: Violet M. Ward DOB: 09/18/1958 SSN: XXX -XX -3546 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Billing Records; Medical Records; X -Rays / MRIs / CT scans; See "Attachment A." at Second Image National, 1805 Monument Ave., Ste. 208, Richmond, VA 23220, Fax: (800) 611-4555 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 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: Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. BY THE COURT: Date: Prothonotary/Clerk, Civil Division Seal of the Court W.O. # 286805-002 14-1002 Pave 1 of 2 Attachment A Re: Name: Violet M. Ward DOB: 09/18/1958 SSN: XXX -XX -3546 Complete medical records, billing records, and radiology images from 11/2003 to 07/2012, including but not limited to any records/documents that may be stored digitally and/or electronically: documents, medical reports, doctor's entries, nurse's notes, progress reports, cardiology reports, radiology reports, x-ray reports, MRI reports, lab reports, pathology reports, monitor strips, physical therapy records, case history, emergency records, diagnosis, prognosis, condition, admit and discharge records, charges, explanation of benefits, payments, adjustments, write-offs, balances due, itemized billing charges, X-rays, MRI's, CT's, myelograms, tomograms, MRA's, PET scans, CAT scans, fluoroscopy, documents including sign -out sheets or communications which demonstrate that any items were checked out from or removed from your facility, radiology reports, x-ray reports, MRI reports, CT reports, myelogram reports, cardiology reports, and any other radiology reports. All approved radiology images must be produced on film or on a DICOM compliant CD only. Prior to duplication, please provide a breakdown of all radiology images in your possession, custody, or control. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. To include any and all of these records from Louis Leite, D.O. W.C) # ?86805-00'' n _ - COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14-1002 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian Of Records, George Kunkel, M.D., 2405 Linglestown Rd., Harrisburg, PA 17110 Re: Violet M. Ward DOB: 09/18/1958 SSN: XXX -XX -3546 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Billing Records; Medical Records; X -Rays / MRIs / CT scans; See "Attachment A." at Second Image National, 1805 Monument Ave., Ste. 208, Richmond, VA 23220, Fax: (800) 611-4555 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 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: Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. BY THE COURT: Date: Prothonotary/Clerk, Civil Division Seal of the Court y1n #''RfS8(15-qft 14-1qm Pa or 1 of Attachment A Re: Name: Violet M. Ward DOB: 09/18/1958 SSN: XXX -XX -3546 Complete medical records, billing records, and radiology images from the first date of treatment to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: documents, medical reports, doctor's entries, nurse's notes, progress reports, cardiology reports, radiology reports, x-ray reports, MRI reports, lab reports, pathology reports, monitor strips, physical therapy records, case history, emergency records, diagnosis, prognosis, condition, admit and discharge records, charges, explanation of benefits, payments, adjustments, write-offs, balances due, itemized billing charges, X-rays, MRI's, CT's, myelograms, tomograms, MRA's, PET scans, CAT scans, fluoroscopy, documents including sign -out sheets or communications which demonstrate that any items were checked out from or removed from your facility, radiology reports, x-ray reports, MRI reports, CT reports, myelogram reports, cardiology reports, and any other radiology reports. All approved radiology images must be produced on film or on a DICOM compliant CD only. Prior to duplication, please provide a breakdown of all radiology images in your possession, custody, or control. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. N n # 1R68(15 -0O 14- I (1(17 7 F 1 1 ENTERED & FILED 11011 SEP I P 14: 2b PROTHONOTARY OFFICE LEBANON,PA IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA CIVIL ACTION — LAW • Tamyra Beaston Plaintiff vs. : NO. 2008-02169 • Joseph Benaknin, D.O., • CHRISTOPHER STARK, D.O., and MILTON S. HERSHEY MEDICAL CENTER, d/b/a PENN STATE MILTON : S. HERSHEY MEDICAL CENTER, and : d/b/a MILTON S. HERSHEY MEDICAL CENTER PHYSICIANS GROUP, Defendants • ORDER OF COURT • AND NOW, this 19th day of September, 2011, upon consideration of the arguments submitted by both parties, and in accordance with the attached opinion, the Defendants' request to compel Plaintiff to sign a blank medical authorization form is denied. BY THE COURT: BRADFORD H. CHARLES BHC/slh IN THE COURT OF COMMON PLEAS OF' LEBANON COUNTY, PENNSYLVANIA CIVIL ACTION — LAW Tamyra Beaston Plaintiff Vs. • • : NO. 2008-02169 Joseph Benaknin, D.O., CHRISTOPHER STARK, D.O., and . MILTON S. HERSHEY MEDICAL • CENTER, d/b/a PENN STATE MILTON : S. HERSHEY MEDICAL CENTER, and : d/b/a MILTON S. HERSHEY MEDICAL : CENTER PHYSICIANS GROUP, • Defendants APPEARANCES: Richard P. Abraham, Esquire YOUNG RICCHIUTI CALDWELL & HELLER, LLC For Plaintiff Erin Dragann, Esquire For Defendants McQUAIDE BLASKO, INC. OPINION BY CHARLES, J., September 19, 2011 If litigation is a test', it should be an open book one. To promote openness and prevent surprise, the rules governing civil discovery are "necessarily broad by definition and everything is presumed to be discoverable unless subject to a proscription set forth in the rules". Slayton v. Weibel, 37 Pa. D & C 4th 140, 142 (C.P. 1998). Neither party to the above -captioned litigation seriously disputes the precepts outlined In many ways, litigation is indeed a test. It is a test of the facts. It is a test of counsel's skill, diligence and ethics. It is also a test of parties' credibility. above. However, they vigorously contest the methodology by which "open book" litigation, should be accomplished. The Defendant argues that Plaintiff should be required to sign a blanket authorization form so that the Defendant can obtain records directly from medical providers. Plaintiff argues that the procedure sought to be invoked by Defendant is invasive and unnecessary for the defense to obtain its desired "open book test". With one qualification, we agree with Plaintiffs. I. FACTS This • is a medical malpractice claim filed . by Tamyra Beaston (hereafter "BEASTON") against the Hershey Medical Center ("HMC") and doctors performing services at MHC. BEASTON alleges that she presented to the HMC Emergency Room on November 23, 2007 with "the worst headache of my •life". Following an examination and testing, Dr. Joseph Benaknin performed a lumbar puncture procedure. (Complaint at ¶¶ 9-11). As BEASTON was being prepped for this procedure, she experienced a "sudden syncopal episode" and fell forward. (Complaint at 13). As a result, BEASTON fell to the ground. BEASTON alleges that she suffered serious injuries as a result of this fall. (Complaint at ¶¶ 13- 15). BEASTON filed the above -captioned litigation on September 29, 2008. The Defendants filed their Answer to the Complaint on March 30, 2 2009. Thereafter, the discovery phase of the above -referenced case commenced. During discovery, the Defendants learned that BEASTON had been seen and treated by various medical providers both before and after the fall at HMC. On April 1, 2011, the Defendants sent blank medical authorization forms to the Plaintiff in an effort to obtain records directly from each medical provider, While BEASTON's counsel agreed to procure records and forward them "asap", he refused to provide the blank medical authorization forms requested by the defense. A status conference was conducted before the undersigned jurist on May 27, 2011. At this status conference, *the parties raised the question of whether the defense should be entitled to blank written authorization forms. As part of our status conference order; we included the following: The Defendants desire that Plaintiff sign blank, authorization forms that would enable the Defendants to obtain information directly from source entities. The Plaintiff indicates that the rules do not authorize the process as requested by the Defendants. We are not familiar with the current state of the law on this issue. Therefore, we direct that both parties file briefs in support of their perspective positions on the issue of whether the Defendants should be permitted to obtain written authorization forms from Plaintiff in order to procure documents on their own. These briefs are to be filed within 30 days from today's date. (Status Conference Order at pgs. 2-3). Both sides have filed briefs in support of their respective positions. The issue raised by the Defendant is now before us. II. DISCUSSION As noted at the outset of this opinion, a litigant's right to discovery is necessarily broad. Pa.R.C.P. 4003.1(a) provides that a party to civil litigation may obtain discovery "regarding any matter not privileged, which is relevant to the subject matter involved in the pending action..." The right of discovery extends not only to directly relevant information, but also to information that could conceivably lead to the discovery of relevant information. See, e.g. Pa.R.C.P. 4003.1(b); Schwab v. Milks, 8 Pa. D & C 4th 557 (C.P. 1990). While necessarily broad, a civil litigant's right to discovery is not absolute. Pa.R.C.P. 4011 is entitled "Limitation of Scope of Discovery" and states: No discovery or deposition shall be permitted which (a) is sought in bad faith; (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the d.eponent.of any person or party; (c) is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6; (d) is prohibited by law barring disclosure of mediation communications and mediation documents; or (e) would require the making of a reasonable investigation by the deponent or any party or witness. Pa.R.C.P. 4011. Within the context of personal injury litigation, a plaintiff's medical records and medical history are unquestionably relevant. Moreover, our 4 appellate courts have clearly ruled that confidentiality rules applicable to doctors are deemed waived when a patient initiates civil litigation. Moses v. McWilliams, 549 A.2d 950 (Pa.. Super. 1988) ("the Pennsylvania physician -patient privilege statute reflects the concept that there is a reduction in a patient's privacy interest and right to confidentiality when he or she files suit for personal injuries". Id. at 955). On the other hand, a plaintiff's desire to keep clearly irrelevant medical information confidential is a privacy interest that we cannot ignore. See, e.g. Walen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1976). It is within the context provided by the above that we will turn to the specific issue now before us, namely, whether Plaintiff can be required to provide blank authorization forms to a party he/she has sued. While this issue involves procedure, its resolution will necessarily impact the scope of discovery to which a defendant is entitled. We are without appellate precedent that would control our decision. However, several Common Pleas Courts have spoken on the issue. Two in particular are persuasive. In. Slayton v. Biebel, 37 Pa. D & C 4th 140 (C.P. 1998), the Court began its analysis by recognizing: There can be no question but that some part of the Plaintiff's extensive medical history may be of substantial relevance to the issue at hand. In the same light, however, there can also be no question but that some parts of the Plaintiff's medical history may be not only irrelevant to the present action but also of a highly private and personal nature. 5 Id. at 144. Emphasizing that a plaintiff should retain a right of privacy in irrelevant medical information, the Court held that the plaintiff should not be compelled to sign a blank medical authorization form. In so holding, the Court dismissed the policy argument submitted by the defense: The Defendant suggests that to [rely on a process that puts Plaintiff in control of disclosing information] is tantamount to allowing the Plaintiff to try the Defendant's case. We cannot agree. Such an argument would not likely be made were records in the possession of the Plaintiff. That they are instead in the possession of another, but under his control, should not change the analysis. The concern of the Defendant is legitimate. The concern is, however, endemic to both circumstances. In either circumstance, there is an understandable concern that certain materials may be withheld for the benefit of the withholding party...should a misguided attorney endeavor upon a foolish course of withholding discoverable matters, there will be no distinctions made which will be based on whether the material withheld was first in the possession or the control of the client. The second concern of the Defendant that the Plaintiff may in good faith remove a part of the record which is in fact pertinent, is equally legitimate. This concern alone, however, will not allow Defendant the overreaching scope of his discovery request.... Id. at 146-147. In Deluca v. Leon, 1 Pa. D & C 3d 185 (C.P. 1977), the Court similarly rejected efforts by the defense to force a plaintiff to sign a blank medical authorization. The Court stated: The broad authorization herein being sought by the Defendants is so overreaching as to invade the Plaintiffs' doctor -patient privilege because it is unlimited as to the records that might be inspected... The discovery rules do not permit a party to inspect the records (herein Medical Records) of a non-party. Under the 6 rules only the records of an adverse party are amenable to discovery by inspection on petition and motion to the Court. Pa.R.C.P. 4007. What the petitioner requests in the present petition is that he be permitted to do that which the rules by implication forbid: inspect records of a non-party...if defendants are not satisfied with copies of records supplied by plaintiffs and are desirous of a more ample discovery of plaintiffs' medical condition, they will have to revert to oral deposition of the doctor as provided by Pa.R.C.P. 4007 and limit themselves to discovery of all information relevant to plaintiff's personal injuries allegedly suffered at the hands of defendants' negligence. (Slip Opinion at pgs. 1-2). We find that the reasoning of the Courts in Slayton and DeLuca is persuasive, but only to a point. We agree that a plaintiff should be permitted to enjoy confidentiality with respect to medical information that is both personal and irrelevant to the litigation at hand. As an example, suppose that a woman suffers a broken shoulder and soft tissue injuries to her neck as a result of a motor vehicle accident. Should that woman's gynecological and sexual history contained in the medical records be disclosed? We think not. Therefore, we conclude that,a privacy right does exist for a plaintiff that should •circumscribe the extent of medical documentation to which a civil defendant should be entitled. Having reached this conclusion, logic requires us to deny the Defendant's blanket request for medical authorization forms. With the above being said, we are unwilling to dismiss the concerns of the Defendant as cavalierly as did the Court. in Slayton, supra. Perhaps the practice of law has changed since 1998; or perhaps we are simply more cynical than the Slayton Court. Our fear is that if we place a 7 plaintiff's lawyer in exclusive control of what medical documentation is or is not provided, potentially relevant information could remain hidden. We are not saying that Plaintiffs' lawyers are unethical. Quite the contrary. Our experience is that most Plaintiffs' lawyers, including BEASTON's lawyer, are aware of and comply with their ethical obligations. Still, the perception of documentary relevance will undoubtably be colored by the plaintiff -oriented perspective of even the most ethical plaintiffs' lawyers.2 It is because perspective often colors perception that we are unwilling to simply cede total control of the medical document relevancy question to counsel for the Plaintiff. Fortunately, a process exists by which open book litigation can be achieved without jeopardizing a Plaintiff's right to confidentiality with respect to private non -relevant medical information. Pa.R.C.P. 4009.12 is entitled "Answer to Request Upon a Party for Production of Documents and Things". This rule requires a responding party to produce all documents "described in the request to which there is no objection". Pa.R.C.P. 4009.12(a)(2). When an objection exists, the responding party is required to "identify all documents or things not produced or made available because of the objection...documents or things not produced shall be identified with reasonable particularity together with the basis for non -production". Pa.R.C.P. 4009.12(b)(2). As we see it, strict compliance 2 The practical reality of today's personal injury litigation climate is that Plaintiffs' lawyers are compensated on a contingency basis. Therefore, these lawyers have a vested financial interest in framing a dispute in a manner beneficial to their clients. with the above rules will solve the dilemma communicated to us by these parties. When a Defendant desires medical records, a request for production of documents should be submitted. If the Plaintiff does not have the requested documents already in hand, the Plaintiff's lawyer can obtain those documents via a medical authorization release form signed by his client. Once in hand, the Plaintiff's lawyer can review the documents and disclose everything that he deems to be relevant. More germane to the issue at hand, the Plaintiff's lawyer will also be required to identify all documents not produced "with reasonable particularity together with the basis for non -production". In this way, the Defendant will be advised of what is being withheld. Should the Defendant's perception regarding the relevance of these documents differ from that of Plaintiff, the issue can be submitted to a Court which can, if necessary, examine the documents in camera before rendering a decision. Will the above process defeat all possibility of fraud? No it will not. However, strict compliance with Rule 4009 takes a final decision regarding documentary relevance away from Plaintiff's counsel and provides a pathway via which the Defendant can obtain a ruling from the Court regarding documentation of disputed relevance. 9 , III. CONCLUSION In John Grisham's novel "The Firm", Mitch McDeere found his way out of a seemingly impossible dilemma by strictly adhering to his ethical requirements as a lawyer and the mandates of "the law". In this case, we have found a similar answer to the difficult dilemma presented by these parties. Strict compliance with Pa.R.C.P. 4009.12 by ethical lawyers will ultimately result in the disclosure of all medical information that is relevant to a lawsuit. Essentially, the concept of "open book litigation" will be preserved. So too will a Plaintiff's privacy right to truly personal and non -relevant medical information. An Order will be entered this date denying the Defendant's request for signed blank authorization forms. Although our Order will not so state, we expect that Plaintiff will comply strictly with the mandate of Rule 4009.12. If Plaintiff's counsel already has or will in the future withhold documentation based upon medical irrelevance, a description of the documentation withheld together with the reason for non -production will have to be communicated in a formal manner to the defense pursuant to Pa.R.C.P. 4009.12. 10 Westlaw. 1998 WL 1004641, 37 Pa. D. & C.4th 140 (Cite as: 1998 WL 1004641 (Pa.Com.PI.), 37 Pa. D. & C.4th 140) C Court of Common Pleas of Pennsylvania, Crawford County. Slayton v. Biebel No. 1993-127. June 4, 1998. VARDARO, J. **141 Irving M. Portnoy, for plaintiffs. William L. Walker, for defendant Biebel. Gary A. Fabian, for defendant Okuma. William A. Dopierala, deputy attorney general, for additional defendant PennDOT, E. May Weiss, for additional defendant Bearce. DISCUSSION *2 The limits of the scope of discovery are set forth in Pa.R.C.P. 4003.1(a) which provides in mate- rial part that "a party may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action ...." The scope of discovery is necessarily broad by definition and everything is presumed to be discoverable unless subject to a proscription set forth in the rules. Moun- tain View Condominium Owners' Ass'n v. Mountain View Associates, 9 Pa. D. & C.4th 8 1 (1991). A party then may "obtain discovery of any matter, not privi- leged, which is relevant to the subject matter in- volved in the pending action ... if the information Page 1 sought appears reasonably calculated to lead to the discovery of admissible evidence." Lindsey v. Penn - DOT, 23 Pa. D. & C.3d 202 (1982). The facts and circumstances of each particular cause of action will frame the proper scope of discovery. See Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 609 A.2d 796 (1992). A court will only place limitations on the scope of discovery when it concludes that a matter which is sought as discoverable is privileged, irrelevant, or specifically prohibited by the rules. While a litigant's right to discovery is far- reaching, this right is not absolute. Taylor v. West Penn Hospital, 48 Pa. D. & C.3d 178 (1987). The limitations contained in Pa.R.C.P. 4011 define the bounds of the scope of discovery. Specifically, Pa.R.C.P. 4011(b) prohibits any **143 discovery which could cause "unreasonable annoyance, embar- rassment, oppression, burden, or expense to a depo- nent or any person or party," and Rule 401I(e) pro- hibits the making of an "unreasonable investigation by the deponent or any party or witness." In the province of discovery, Pennsylvania case law recognizes an individual's interest in avoiding the disclosure of personal matters which are within a constitutionally protected sphere of privacy. In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980).FNI The United States Supreme Court in GValen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, 73 (1976), found that an individual's right to privacy necessarily embodies two types of privacy interests, "[o]ne is the individual's interest in avoiding disclo- sure of personal matters, and another is the interest in independence in making certain kinds of important decisions." This protection in avoiding the disclosure of personal matters, however, is also not absolute, and the competing interests of each party must, there- fore, be balanced. See United States v. Westinghouse C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 1998 WL 1004641, 37 Pa. D. & C.4th 140 (Cite as: 1998 WL 1004641 (Pa.Com.P1.), 37 Pa. D. & C.4th 140) Electric Corp., 638 F.2d 570 (3d Cir. 1980) (employ- ee medical records are within ambit of materials enti- tled to privacy protection but this right must be bal- anced against society's public health concerns); Fabio v. Civil Service Commission of the City of Philadel- phia, 489 Pa. 309, 414 A.2d 82 (1980) (in Pennsyl- vania, only a compelling state interest will override one's privacy rights). FN 1. "It is acknowledged that court orders which compel, restrict or prohibit discovery constitute state action which is subject to constitutional limitations." Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 435 n.8, 609 A.2d 796, 801 n.8 (1992), citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). *3 **144 There can be no question but that some part of the plaintiffs extensive medical history may be of substantial relevance to the issue at hand. In the same light, however, there can also be no question but that some parts of the plaintiffs medical history may be not only irrelevant to the present action but also of a highly private and personal nature. The de- fendant's counsel in argument has so admitted. There- fore, it is agreed by both parties that within the rec- ords which are subject to the subpoena are matters which are fully discoverable and matters which are fully undiscoverable. The plaintiffs counsel obvious- ly seeks to keep the matters which are fully undis- coverable from the opposing counsel's review. Op- posing counsel concedes that he has no use for these undiscoverable matters, but makes known his con- cern that fully discoverable matters may be well be kept from him in the mistaken belief that they are undiscoverable. The question becomes whether there can be a reconciliation of both, the defendant's need for all relevant, non -privileged matters and the plain- tiff's right to keep private all of her medical records which contain intimate matters of a personal nature which are not germane to the present action. Page 2 We began an analysis of this matter by first not- ing that the plaintiff is impliedly considered to have consented to the disclosure of information which is considered confidential in "civil matters brought by such patient, for damages on account of personal in- juries." 42 Pa.C.S. §5929. The defendant would in- terpret this as allowing for the discovery of every- thing in the plaintiff's medical records irrespective of the fact that information which will be discovered will admittedly have no significance or relationship to the present action. We consider such an interpreta- tion to be unacceptable and overreaching. See DeLu- ca v. Leon, 1 Pa. D. & C.3d 185 (1977) (request to compel production of all plaintiffs medical records refused). The purpose underlying the **145 implied waiver policy is that "it is inconsistent for a patient to base a claim upon his medical condition and then use the privilege to prevent the opposing party from ob- taining and presenting conflicting evidence pertaining to that condition." Moses v. McWilliams, 379 Pa. Super. 150, 181, 549 A.2d 950, 966 (1988) (Cirillo, P.J., concurring and dissenting), citing Bond v. Dis- trict Court, 682 P.2d 33, 38 (Colo. 1984). To allow the defendant the discovery of every shred of the plaintiffs medical records, including that which will be unquestionably impertinent, does not further this policy. We also make note of Pa.R.C.P. 4009 which al- lows a court to order a party to produce records which are in the "possession, custody or control of the party upon whom the request is served." For pur- poses of the application of Rule 4009, an individual's medical records may be considered as within the "control of the party." Greyhound v. McAllister, 130 P.L.J. 414, 415 (1982) (since patient can direct phy- sician to make their medical records available for review by the patient or any designated third party, the records are effectively in the control of the pa- tient). That is, while a party's medical records may not be in his possession, they may properly be deemed to be in his control. Nothing in Rule 4009 requires that a party have both possession and control © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 1998 WL 1004641, 37 Pa. D. & C.4th 140 (Cite as: 1998.WL 1004641 (Pa.Com.Pl.), 37 Pa. D. & CAth 140) of his records in order for a court to order their pro- duction. As such, a party may be ordered to produce medical records which are in his control but not in his possession. The question becomes, for our purposes, whether the production of records which are not in a party's possession but are within his control should be afforded disparate treatment. *4 A party which has received a motion to pro- duce documents or records in their possession is af- forded the opportunity to inspect these documents and records and remove that which is considered to be not properly **146 the subject of the discovery motion. The party's counsel performs this discretion- ary function before turning over the records to the opposing party. This is an acceptable, necessary and well-established procedure. Matters which the coun- sel in good faith considers to have absolutely no ma- teriality to the action are properly removed. There is no convincing reason to treat records which are under the control of a party but not in his possession in a different manner."' FN2. As noted persuasively in Talarico v. Talarico v. Montefiore Hospital, 138 P.L.J. 213 (1990), "[t}here is no reason to treat a request for the production of medical rec- ords in a different fashion from, for exam- ple, a request from a plaintiff directed to a hospital for the production of any records in its possession, custody, or control concern- ing the incident that is the subject of the lawsuit. Obviously, we would not permit the plaintiff's counsel to sort through all records of the hospital to be sure that the hospital has complied with the plaintiffs request for the production of documents." The defendant suggests that to allow such like treatment is tantamount to allowing the plaintiff to try the defendant's case. We cannot agree. Such an ar- gument would not likely be made were records in the possession of the plaintiff. That they are instead in Page 3 the possession of another, but under his control, should not change the analysis. The concern of the defendant is legitimate. This concern is, however, endemic to both circumstances. In either circum- stance, there is an understandable concern that certain materials may be withheld for the benefit of the with- holding party. There is no reason for the concern to be greater, however, in one circumstance over the other. Should a misguided attorney endeavor upon a foolish course of withholding discoverable matters, there will be no distinctions made which will be based on whether the material withheld was first in the possession or the control of the client. **147 The second concern of the defendant that the plaintiff may in good faith remove a part of the record which is in fact pertinent, is equally legiti- mate. This concern alone, however, will not allow defendant the overreaching scope of his discovery request. Pa.R.C.P. 4012(a)(2) allows that a court may make an order that, "the discovery or deposition shall only be on specified terms and condition, including a designation of the time and place." This rule affords a court with the means to provide for the defendant's concerns for the full disclosure of all discoverable matters without the need to compromise the plaintiffs protected privacy concerns. See Arnone v. Acme Markets Inc., 1 Pa. D. & C.4th 281 (1987) (court ordered that responding party list and briefly describe all parts of the record which were withheld). *5 Therefore, the plaintiff's objection to the de- fendant's issuance of subpoenas will be granted and any discovery of these subpoenaed documents and records may only be accomplished according to the following order. ORDER And now, June 4, 1998, consistent with the fore- going memorandum, counsel for the defendant, Rich- ard T. Biebel, as administratrix of the estate of Ruth E. Peterson, may serve each subpoena he wishes to serve upon medical providers so long as the records © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 1998 WL lOO464\'37Pa. D. & C.4th 140 requested by each such subpoena are required to be forwarded directly to counsel for the plaintiff. Counsel for the plaintiff shall promptly review all such subpoenaed records and documents and for- ward to counsel for defendant Biebel all records nhich plaintiff's counsel deems to be those relevant to this proceeding, along with a brief description of the records **148 not provided and an explanation as to why those records were not provided. Furthermore, plaintiffs counsel shall forward to counsel for Biebel an affidavit providithat the rec- ords produced and those expressly withheld com- promised the whole of the subpoenaed records and documents. Thereafter, if there are any unresolved disputes regarding the discovery of the subpoenaed records and documents, counsel for defendant Biebel may file an appropriate motion with the court asking that there be an in camera inspection regarding any rec- ords that cc'nrdsMhut may be in dispute so that the court may de - tel mine o'mnuinc if there is anything that is further discovera- ble. Pa.Com.Pii998. Slayton v. Biebel )V98WL|O0464l.37Pa. D.8tC.4tbl40 END OF DOCIJMENT © 2014 Thomson Reuters. No Ciairn to Orig. US Gov.Works. Page 4 n 7 itli\1)!= Rh � 353 (2006) 353 Appleman v. Feathers L/iscovay--Poductionoj medical records -- Pa. 8C 4009./2 The court deriied defendants' motion to compel plaintiff rosign fonis authorizing defense counsel to obtain plaintiff's medical and employment records directly from the records custodians because Pa.R.C.P. 4009. 12 provides the proper procedure for sLlch access. Mo- tion to compel o'honzucumpc| denied. Plaintiff Douglas Morgan alleged that he was totally disabled as the result af personal injuries that he suffered in an automobile accident. Defendants filed a motion to compel plaintiffto sign authorizations that would pcnnicdctendamts to obtain plaintiff's medical and employment records directly from the individuals having custody ofthern. Plaintiff asserted that it was improper to allow defense counsel to see his medical records before his own lawyer saw them. The court agreed. It noted that Pa.R,C.P, 4009.12 provides adequate protection for parties who are concerned that they might not receive all o[the discoverable records. Under the rule, counsel must respond N a request for production by providing copies of records to which there is rio objection, and by identifying. with particularity, documents that are not produced. The court said that the rule would better protect plaintiff's right to privacy in any medical condition riot put at issue in the case. The court observed, however, that nasmuch as plaintiff clairned total disability, defendants were entitled to more than records relating to injuries resulting from this accident. The scope of discovery in- cluded "medical records relating to any individual characteristics of [plaintiff] that rnightaffect the length ofhioproduoivcnmck|iMe,^dhe court said. In additiori. the court ruled that other plairitiffs could no//rspnnd to entire sections ofdefendants' interrogatories with a general state- meut that investigation was continuing. The court acknowledged that where a party does not have sufficient information to answer a par- ticular question, ar-kcu|arqucnhon. the party may so repond, and then would be under a duty to supplement the answer. The court struck plaintiffs' general response and ordered plaintiffs to provide ftill and complete answers to the interrogatories. C./!ofBlair County, nos. 2005 GN 1901; 2005 GN 354 Appleman v. Feathers 79 DAC. 4th John Daley, for plaintiffs Appleman. Jason Mums, for plaintiffs Morgan. Kenneth Newman and Dennis J Stew, for defendants. DOYLE, J., February 23, 2006—This matter comes before the court on three motions filed by defendants Donald Feathers and Barnes Petroleum Products Inc. The motions include: motion to compel signing of medical, employment, and workers' compensation authorizations directed to plaintiff/additional defendant Douglas Mor- gan; motion to compel directed to the Appleman plain- tiffs; and motion to strike the Appleman plaintiffs' insufficient answers to defendants' third set of interroga- tories and to compel appropriate responses thereto. The court has reviewed the motions and their accompanying briefs as well as plaintiff Morgan's objection to the mo- tion regarding authorizations. The court heard oral argu- ment on the motions on February 14, 2006. The motions are ready for disposition. MOTION TO COMPEL SIGNING OF MEDICAL, EMPLOYMENT, AND WORKERS' COMPENSATION AUTHORIZATIONS DIRECTED TO PLAINTIFF/ADDITIONAL DEFENDANT DOUGLAS MORGAN Defendants' first motion asks the court to require plain- tiff/additional defendant Douglas Morgan to sign author- izations that would allow the defendants to obtain Morgan's medical and employment records directly from the individuals having custody of those records. Defen- dants argue that it is insufficient for Morgan's counsel to obtain the records and then provide Morgan's counsel 353 (2006) Appleman v. Feathers 355 with copies of the "relevant" documents because Mor- gan has placed his medical and employment status at is- sue. Further, defendants argue that because Morgan claims total disability, his entire medical history is sub- ject to discovery. Morgan argues that it is improper procedure to allow defense counsel to review his medical records before his own counsel does. Morgan cites various common pleas decisions where judges rejected requests for the signing of broad medical releases in support of his position. Morgan indicates that he is not opposed to providing the defendants with the information they seek. The defen- dants concede that Morgan's counsel offered to provide them with the "relevant" documents after having re- viewed them; however, they maintain that the scope of what is relevant to this case is broader than the scope of what Morgan's counsel intends to provide. The scope of discovery in Pennsylvania is very broad. Pa.R.C.P. 4003.1(a) allows discovery of any matter, not privileged, which is relevant to the subject matter of the trial. Pa.R.C.P. 4003.1(b) further allows information to be discovered so long as it is reasonably calculated to lead to the discovery of admissible evidence. In cases where the plaintiff seeks damages for a personal injury, the plaintiffputs his medical condition at issue. Specifi- cally, in this case, because Morgan is claiming total dis- ability as the result of involvement in a car accident with defendants, any health issues that might have affected his ability to work the standard amount of years for a person of the same demographic are relevant to the ac- tion. Kraus v. Taylor 710 A.2d 1142, 1143-44 (Pa. Su- per. 1998). Furthermore, the party claiming total disabil- 356 Appleman v. Feathers 79 D.&C. 4th ity implicitly waives statutory privileges pertaining to the confidentiality of information relevant to his condi- tion. Id. at 1145. (citations omitted) For these reasons, medical and employment information beyond informa- tion specifically related to Morgan's treatment for inju- ries arising out of this action is discoverable in this case. To the extent that Morgan is concerned that certain dis- coverable information may cause embarrassment to him, he is free to seek a protective order under Pa.R.C.P. 4012 to have certain information sealed if it is to be included in the public record of the case. Merely declaring that the information sought by de- fendants is discoverable does not mean that the court is free to compel the signing of the authorizations. The court must first determine whether such authorizations are the proper method of obtaining the information. Although it is unclear whether the cases cited by Morgan in sup- port of his contention that his attorney should be able to review the records in question before turning them over involved situations in which permanent disability was claimed, the court feels that they are very persua- sive. Even in cases where a permanent disability is claimed, there are likely to be some medical records, which pertain neither to the injuries in question nor to the ability of the party in question to work. Hence, al- lowing unfettered access to an opposing party's health records risks allowing access to information that is not discoverable. Cases cited by Morgan suggest that the proper proce- dure for discovery of medical records in cases where the right to confidentiality in those records has been waived is to allow the counsel for the plaintiff to review the docu- 353 (2006) Appleman v. Feathers 357 ments and then provide the discoverable documents to the defendant. See e.g., Greynolds v. McAllister, 130 P.L.J. 414 (Allegheny Cty. 1982); Arnone v. Acme Markets Inc., 1 D.&C.4th 281 (Phildelphia Cty. 1987); and Talarico v. Montefiore Hospital, 138 P.L.J. 210 (Allegheny Cty., 1990). Pa.R.C.P. 4009.12(b) provides adequate protec- tion for parties who are concerned that opposing counsel's review of the documents might not result in all of the relevant documents being turned over. Under Rule 4009.12(a) and (b), counsel must respond to the request for documents by providing copies of the documents to which there is no objection, identify what documents were produced, identify what documents were not pro- duced with reasonable particularity, indicate why those documents were not produced, and provide information respecting whether the documents provided and the docu- ments identified but not provided constitute the' entire group of documents responsive to the request that is in the responding party's control. It is the opinion of this court that the procedure out- lined in Rule 4009.12 should be sufficient in this case to precipitate the discovery of information concerning Morgan's medical and employment records. Addition- ally, the use of Rule 4009.12 is preferable to compelling Morgan to sign a release because it better preserves Morgan's right to privacy in any medical conditions he has not put at issue in this case and allows Morgan's counsel to carry out his duty to protect his client. How- ever, the procedures of Rule 4009.12 will only work if Morgan's counsel recognizes that defendants are entitled to discovery of more than just those records relating to injuries suffered as a result of the instant car accident. 358 Appleman v. Feathers 79 D.&C. 4th For this reason, the court emphasizes that medical records concerning both injuries resulting from this incident and medical records relating to any individual characteris- tics of Morgan that might affect the length of his pro- ductive work life are within the scope of discovery in this case. For the foregoing reasons, the order below was en- tered with respect to the motion to compel the signing of medical, employment, and workers' compensation au- thorizations directed to David Morgan. MOTION TO COMPEL DIRECTED TO TFIE, APPLEMANS Defendant's second motion is directed toward the Appleman plaintiffs. Defendant initially requested that the court order plaintiffs to supply complete answers to seven parts of the first set of interrogatories, five parts of the second set of interrogatories, and five parts of the request for production of documents. At oral argument, the parties indicated that all the issues had been resolved except with respect to questions 10, 11, and 12 of the first set of interrogatories, and questions 19 and 20 of the request for production of documents. The parties were able to resolve all of the issues raised with respect to the second set of interrogatories. Questions 10, 11, and 12 of the first set of interrogato- ries deal with various expenses incurred by the dece- dent, Ja'Net Appleman. Question 10 asks for an itemiza- tion of expenses from medical, hospital and funeral expenses. Question 11 asks for the amount per week the decedent spent on personal maintenance. Question 12 353 (2006) Appleman v. Feathers 359 asks for the amount of other costs, expenses, and amounts regularly paid by the decedent. The information requested in these three questions is all within the scope of discov- ery. Pa.R.C.P. 4003.1. For this reason, the order below was entered with respect to the first set of interrogato- ries. Questions 19 and 20 of the request for production of documents deal with information about Ja'Net Apple - man's automobile insurance. Question 19 asks for docu- ments relating to claims filed with the insurance carrier as a result of the accident. Question 20 asks for copies of any insurance policies in effect at the time of the acci- dent. The information requested in these two questions is within the scope of discovery. Pa.R.C.P. 4003.1. For this reason the order below was entered with respect to the request for production of documents. MOTION TO STRIKE THE APPLEMAN PLAINTIFFS' INSUFFICIENT ANSWERS TO DEFENDANTS' THIRD SET OF INIERROGATORIES AND TO COMPEL APPROPRIATE RESPONSES THE,RETO Defendants' third motion is also directed to the Appleman plaintiffs. Defendant alleges that it was inap- propriate for the Appleman plaintiffs to respond to the entire third set of interrogatories by saying that discov- ery is continuing and they reserve the right to amend their answers. The Appleman plaintiffs' response is that it is premature for them to answer the questions that are asked at this stage of the proceedings. The third set of interrogatories requested infoi mation about the facts, 360 Appleman v. Feathers 79 D.&C. 4th witnesses, and documents that the Appleman plaintiffs are relying on in support of the allegations in their com- plaint at paragraph 8, subparts (a) through (1), and para- graph 9, subparts (a) and (b). Defendants cite Frisby v. Zinner, 49 D.&C.3d 115 (1987), for the proposition that it is inappropriate for a plaintiff to answer interrogatories with "investigation continuing." Although Frisby is not binding precedent on this court, the Frisby opinion cites to Royster v. McGowen Ford Inc., a Superior Court case from 1982. Royster dealt with a situation in which a party failed to identify an expert witness and the substance of that expert's report. 294 Pa. Super. 160, 168, 439 A.2d 799, 803 (1982). The court in Royster specifically noted that a plaintiff might not have sufficient information to an- swer interrogatories that ask for the basis of their con- tentions during the early stages of discovery. Id. at 166. The Royster court also discussed the fact that Pa.R.C.P. 4007.4 placed a duty on the plaintiff to seasonably supple- ment the responses to interrogatories in cases where the plaintiff did not have sufficient information to answer an interrogatory at the time it was served. Id. at 167-68. The information requested in the defendant's third set of interrogatories directed to the Appleman plaintiffs was discoverable. The Appleman plaintiffs should have pro- vided full and complete answers to the third set of inter- rogatories because they did not object to them. See Pa.R.C.P. 4006(a)(2). Referring to the complaint and stat- ing that discovery is ongoing does not constitute full and complete answers. It is permissible for the Appleman plaintiffs to state that they do not have information about specific subparts of the interrogatories if that is the case. 353 (2006) Appleman v. Feathers 361 However, they are under a duty to supplement their re- sponses when the information requested becomes avail- able. See Pa.R.C.P. 4007.4. It is appropriate for the Appleman plaintiffs to respond to the third set of inter- rogatories as completely as they can at this stage of the proceedings. For these reasons, the order below was en- tered with respect to the defendants' motion to strike the Appleman plaintiffs' responses to the third set of inter- rogatories and compel appropriate responses thereto. ORDER And now, February 23, 2006, it is hereby ordered, di- rected, and decreed as follows: (1) Defendant's motion to compel signing of medical, employment, and workers' compensation authorizations directed to plaintiff/additional defendant Douglas Mor- gan is denied. The court notes that after reviewing his client's medical, employment, and workers' compensa- tion information, counsel for plaintiff/additional defen- dant is obligated to turn over all discoverable informa- tion related to both the injuries from the car accident arid any information that could affect the length of Mr. Morgan's productive life because he is claiming total disability. Counsel for plaintiff/additional defendant is further obligated to comply with Pa.R.C.P. 4009.12(a) and (b) in all respects. Plaintiff/additional defendant shall serve the discoverable portion of his medical, employ- ment, and workers' compensation records on the defen- dants within 60 days from the date of this order. (2) Defendant's motion to compel directed to the Appleman plaintiffs is granted with respect to questions 362 International Surface Prep. Corp. 79 4th 10, 11. and 12 of the first set of interrogatories. The Applemans are directed to serve complete responses to questions 10, 11. and 12 of the first set of interrogatories on the defendants within 30 days of the date of this or- der. (3) Defendant's motion to compel directed to the Appleman plaintiffs is Granted with respect to questions 19 and 20 of the request for production of documents. The Applemans are directed to serve complete responses to questions 19 and 20 on the defendants within 30 days of the date of this order. (4) Defendant's motion to strike the Appleman plain- tiffs' insufficient answers to defendants' third set of in- terrogatories and to compel appropriate responses thereto is granted. The• Appleman plaintiffs' responses to the defendants' third set of interrogatories are hereby stricken. The Appleman plaintiffs are directed to file full and complete answers to the third set of interrogatories. verified in accordance with Pa.R.C.P. 4006(a)(1) within 30 dans from the date of this order. Leyva V. International Surface Preparation Corp. f prdiws — Remittinrr — Prodzrets liahilin Cast'— Pluintiff s cd11 - Llititu? The court denied defendant's motion for judgment n.o.V.. but re- mitted the jur\'s verdict from 520 million to 53.75 million. \where plain- tiff suffered significant injur\ to her arm, but the injur\ did not render her arm useless or paralyzed. Post -trial motions granted in part, de- nied in part. Plaintiff vas injured during the course of her employment when a fellow emplo\ee. operating a forklift. crushed her right arm against PATRICIA A. REED, v. JACOB B. TYSON, Plaintiff : IN THE COURT OF COMMON PLEAS, : DAUPHIN COUNTY, PENNSYLVANIA : NO. 2008 CV 8860 Defendant : CIVIL ACTION ORDER OF COURT AND NOW, this 221d day of October, 2010, upon consideration of Oral Arguments -held October 21, 2010, it is hereby ORDERED as follows: 1) Plaintiffs Objections to Defendants Subpoenas to family Practice Center, P.C., Hershey Medical Center, Old Trail Imaging and Sun Orthopaedic Group, Inc. are SUSTAINED. If Defendant chooses to send a subpoena to those medical providers, they shall be for the 10 -year period prior to October 14, 2007 up to the present. 2) The subpoenas shall advise the medical providers that the records are required to be forwarded directly to counsel for the Plaintiff. Counsel for Plaintiff shall promptly review all such subpoenaed records and documents and forward to counsel for Defendants all records which Plaintiff's Counsel deems to be those relevant to these proceedings. Plaintiff's counsel shall provide a brief description of the records not provided and an explanation as to why those records were not provided. 3) If there remain any unresolved disputes regarding the discovery of subpoenaed records and documents counsel for Defendants may file an appropriate motion with the Court asking that there be an in camera inspection regarding any records that may be in dispute so the Court may determine if there is anything that is further discoverable. OCT 2 2 2010 hereby certify that the foregoing is a true and correct copy of the original filed. Distribution: Prothonotary The Hon. Deborah Essis Curcillo a.k.,;x_Art/ BY -TEM COURT: Karen Salvemini, Esquire, Rhoads & Sinon, LLP, One South Market Square, 12th Floor, PO Box 1146, Harrisburg, PA 17108-1146 Karen W. Miller, Esquire, Caldwell & Kearns, P.C., 3631 North Front Street, Harrisburg, PA 17110-1533 4 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP • One South.Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 E-mail: ddowliu @rhoads-sinon.cotri Attorneys for Plaintiffs, Stephen E. Rosenberry and Donna Rosenberry STEPHEN E. ROSENBERRY and DONNA ROSENBERRY, H/'W, v. BRIANA WEBBER, Plaintiffs Defendant AND NOW, this PROTHONOTARY' FRANKLIN COUNTY PA 2013NOV 18 PH 1:5.1 LIHOA L. BARO PROTHOa0 TARY DEPUTY IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2013-168 JURY TRIAL DEMANDED ORDER day of ( V: , 2013, upon consideration. of the Parties' respective positions, it is hereby ORDERED and DECREED that Defendarit's Omnibus Motion to Strike Plaintiff's Objections to Subpoenas, to Impose Sanctions and Compel Discovery is DENIED. It is hereby ORDERED that Defendant may obtain the Plaintiffs medical records as follows: a) The Defendant, through counsel; may issue a subpoena directly to the healthcare provider with instructions that the records are to be sent to Plaintiffs' counsel; or b) The Defendant, through counsel, shall provide a list to Plaintiffs' counsel of any medical records he has not received which he deems relevant, and Plaintiff shall obtain those records from Plaintiffs healthcare provider. ATTEST A TRUE COPY c) Within thirty (30) days of receipt of the Plaintiff's medical records, Plaintiff shall furnish those records to the Defense. In the event Plaintiff deems any records to be privileged and/or otherwise not discoverable, it shall produce a privilege log to the Defense describing the documents not produced. BY THE COURT: Distribution Log: Scott D. McCarroll, Esquire, Thomas, Thomas & Hafer 999, Harrisburg, PA 17108 , 305 North Front Street, P.O. Box David B. Dowling, Esquire, Rhoads & Sinon LLP, One South Market Square, P.O. Box 1146, Harrisburg, PA 17108-1146 FOULKROD ELLIS PROFESSIONAL Fulkr aORPORATION Andrew H. LOJt� 3 Court I.D. No. 77394 CUNDERLAND coca Eric Lauerman PENNSYLWANP,q TY Attorney I.D. 316180 4000 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Attorneys for Defendant: Fax: (717) 909-6955 Darryl Guistwite, D.O. 4 GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS Executor of the Estate of Violet M. Ward, CUMBERLAND COUNTY Plaintiff v. NO. 2014-1002 MANOR CARE HEALTH SERVICES- CARLISLE; DARRYL GUISTWITE, CIVIL ACTION—MEDICAL D.O.; and LUCINDA C. BENDER, PROFESSIONAL LIABILITY ACTION C.R.N.P., Defendants JURY TRIAL DEMANDED DEFENDANT DARRYL GUISTWITE, D.O.'s MOTION TO STRIKE PLAINTIFF'S OBJECTIONS TO DEFENDANT'S NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS UNDER Pa.R.C.P. 4009.21 Defendant Darryl Guistwite, D.O. ("Dr. Guistwite"), through his undersigned counsel, moves this Court to enter an Order pursuant to Pa.R.C.P. 4009.21(d)(1) striking Plaintiff Gary D. Wolfe's objections to Dr. Guistwite's Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery, and in support thereof avers as follows: 1. This case has previously been before the Honorable Thomas A. Placey regarding preliminary objections, and Hubert X. Gilroy, Esquire, was assigned as Discovery Master. 2. On June 9, 2014, Dr. Guistwite gave notice of his intent to serve subpoenas on the following parties: George Kunkel, M.D., PA Gastroenterology Associates, and Pinnacle Family Care Center. (See, Plaintiff Objections, Exhibit A.) Said parties provided health care to Decedent Violet M. Ward. ("Ms. Ward"). 3. Plaintiff objects to the Subpoenas on the ground that Dr. Guistwite is not entitled to obtain Ms. Ward's medical records directly. Plaintiff Objections, ¶6. Rather, Plaintiff proposes a circuitous procedure for obtaining medical records through Pa.R.C.P. 4000.12, where Plaintiff becomes the facilitator of discovery, producing only those medical records that he believes Dr. Guistwite might need. Specifically, Plaintiff wants Dr. Guistwite to request production of medical records in lieu of subpoena, whereby Plaintiff will obtain the records, comb them for evidence he thinks Dr. Guiswite might need, produce the filtered records to Dr. Guistwite, and attach a description of all the records that were not produced and why. 4. Dr. Guistwite is entitled to discover"any matter, not privileged, which is relevant to the subject matter involved in the pending action ... if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Pa.R.C.P. 4003.1(a)(b). 5. Information is not discoverable if its discovery "would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party." Pa.R.C.P. 4011. 6. In his Objections, Plaintiff does not dispute that the medical records which Dr. Guistwite seeks are relevant and discoverable. Rather, Plaintiff objects to the method Dr. Guistwite is using to obtain them, suggesting that subpoenas are no longer permissible tools in discovery. Plaintiff Objections,¶6. 7. Plaintiff cites to Beaston v. Benaknin, (Plaintiff Objections, Exhibit B), a thoughtful opinion that recognizes that a plaintiff's privacy interests should be protected by 2 • Pa.R.C.P. 4000.12 when a defendant's requests for medical records are questionable as to their scope, relevance, and goodwill. Id., at 7. In other words, Pa.R.C.P. 4000.12 is the proper vehicle for discovery when the relevance of the desired medical records is suspect, e.g., seeking gynecological records in a case involving neck injury. Id. 8. But this being a wrongful death case, Dr. Guistwite's Subpoenas are undeniably aimed at relevant information. Unlike cases involving minor or isolated injuries, death expands the scope of discovery to capture any individual characteristics of the decedent that might have affected her life expectancy, earnings capacity, and ability to enjoy life's pleasures. (See, Plaintiff Objections, Exhibit D). The medical records sought by Dr. Guistwite are relevant to all such things. 9. Moreover, privacy concerns are limited in this case because Dr. Guistwite seeks the medical records of Ms. Ward,the Decedent. Plaintiff brought this lawsuit voluntarily and should understand that discovery encompasses more than what occurred at Manor Care. 10. Plaintiff's argument is artfully deceptive and aimed at obstructing Defendant's access to discoverable medical records. It renders subpoenas obsolete and all but guarantees routine trips to the courthouse to correct the whims of Plaintiff's counsel, who seeks to decide for Dr. Guistwite what is relevant. Plaintiff's theory is as unworkable as it is inapplicable to this case, where Dr. Guistwite seeks medical records that are unquestionably relevant, a point that Plaintiff does not deny. WHEREFORE, Defendant Dr. Guistwite requests this Court to overrule Plaintiff's Objections and allow Dr. Guistwite to serve Subpoenas upon George Kunkel, M.D., PA Gastroenterology Associates, and Pinnacle Family Care Center. 3 Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: By: Andrew H. Foulkrod, Esquire Court LD. No. 77394 Eric Lauerman Attorney I.D. 316180 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all • counsel of record this oiN day of , 2014, by depositing said copy in f the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108 (Counsel for Plaintiff) John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Counsel for Manor Care and Lucinda Bender, CRNP) Hubert X. Gilroy, Esquire Martson Law Office 10 East High Street Carlisle, PA 17013 (Discovery Master) FOULKROD ELLIS PROFESSIONAL CORPORATION By: A)c.4-7 ------- Cryst 1 L. Nemetz, Secreta FAL:liw� t M" UF:\FILES\Clients\12297 HXG\12297 Misc\] 2297.110 Discovery Master Wolfe v Manorcare\12297.110.Report of Discove'wj`Masr g PROTHONOTARY Revised: 7/18/14 8:29AM 211ft JUL 22 F 2; :4`8 Hubert X. Gilroy, Esquire CUMBERLAND CQUNTY MARTSON DEARDORFF WILLIAMS OTTO GILROY & FAL? NSYLVANIA MARTSON LAW OFFICES I.D. 24463 10 East High Street Carlisle, PA 17013 (717) 243-3341 GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD, : IN THE COURT OF COMMON PLEAS OF : COUNTY, PENNSYLVANIA Plaintiff v. : NO. 2014-1002 : CIVIL ACTION - LAW MANORCARE HEALTH SERVICES - CARLISLE, DARRYL GUISTWITE, D.O., and LUCINDA C. BENDER, C.R.N.P, Defendants REPORT OF THE DISCOVERY MASTER By Order of May 19, 2014, the undersigned was appointed Discovery Master in the above case. A telephone conference was held with the three attorneys involved in this case on June 25, 2014. The Discovery Master then conducted a conference with Judge Placey on June 30, 2014. The initial issue in this case is the request from Manorcare Health Services to take the deposition of Gary D. Wolfe. Counsel for Manorcare suggested that the primary purpose for the request for the deposition was to determine if Mr. Wolfe was designated as power-of-attorney for Violet M. Ward. Apparently, this issue came up during argument on the preliminary objections and will have relevance as to whether this case should be referred to arbitration or whether it may proceed with the Court of Common Pleas. In the telephone conference with the attorneys, counsel for the Plaintiff suggested that his position was discovery should not proceed because of the pending preliminary objections. After conferring with Judge Placey, it was clear that the Court anticipates resolution of the issue involving Mr. Wolfe's status as power-of-attorney needed to be accomplished before the Court could address the preliminary objections. Accordingly, it is the recommendation of the Discovery Master that Defendant Manorcare be afforded the opportunity to depose Mr. Wolfe relative to the issue of his status as power-of-attorney. However, it appears that there may be some simpler method to resovlve this rather simple issue. Either Mr. Wolfe was appointed as power-of- attorney by the Decedent, Violet M. Ward, or he was not, and it seems that the Plaintiff could readily disclose that information through an affidavit or some other procedure agreed upon by the parties rather than putting everyone to the task of taking a deposition limited to that sole issue. Also before the Court is a request from Defendant, Lucinda C. Bender, CRNP, to subpoena medical records of the Plaintiff's decedent. Plaintiff has filed objections to a Notice of Intent to Serve a Subpoena relative to those records, and Defendant Bender has filed a motion to strike those objections. It is the recommendation of the Master that resolution of this issue be stayed pending the Court's resolution of the preliminary objections issue. The Discovery Master recommends an Order in the form as attached. Dated: July) ( , 2014 Respectfully submitted, /1 Hu . ert X. Gilroy, Es„uire Martson Law Offic 10 East High Stre Carlisle, PA 17013 (717) 243-3341 ID #29943 Discovery Master Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 24463 10 East High Street Carlisle, PA 17013 (717) 243-3341 GARY D. WOLFE, Individually and as IN THE COURT OF COMMON PLEAS OF Executor of the Estate of VIOLET M. COUNTY, PENNSYLVANIA WARD, Plaintiff V. NO. 2014-1002 CIVIL ACTION - LAW c a _ rnt c MANORCARE HEALTH SERVICES- zrn C= rTl-- CARLISLE, DARRYL GUISTWITE, -<> C , D.O., and LUCINDA C. BENDER, r z —q c C.R.N.P, *C") 3 0 Defendants r 0�dday OR R OF OUR3 AND NOW, this of 14, upon consideration of the attached Report of the Discovery Master, it is ordered and directed as follows: 1. In the event the parties between themselves are unable to devise a procedure to resolve the issue of whether Gary D. Wolfe was power-of-attorney for Violet M. Ward within twenty (20) days of the date of this Order, Defendant Manorcare may proceed with scheduling the deposition of Gary D. Wolfe. The deposition shall be limited to inquiry regarding whether Gary D. Wolfe was an appointed power-of- attorney for Violet M. Ward and any related circumstances or facts pertaining to the power-of-attorney issue. 2. Upon conclusion of the discovery authorized in paragraph 1 above, Defendant Manorcare may supplement the record in this case as appropriate and is further directed to re-list this case for argument before the Court on the issue of the preliminary objections. 3. Pending resolution of the preliminary objections issues, further discovery by any party in this case is stayed. BY THE COURT: Thom . Placey, Judge cc: id B. Dowling, Esquire uire Jpkn M. Skrocki, Esquire ,�udrew H. Foulkrod, Esquire bert X. Gilroy, Esquire GARY D. WOLFE, as Individually and as Executor of the Estate of VIOLET M. moo WARD, Plaintiff 000 b. v Couatp of lCumbtfloub IN THE COURT OF COMMON PLEAS MANORCARE HEALTH SERVICES- OF THE NINTH JUDICIAL DISTRICT CARLISLE; DARRYL GUISTWITE, D.O.; and LUCINDA A. BENDER, 14-1002 CIVIL ACTION C.R.N.P. Defendants IN RE: DEFENDANT DARRYL GUISTWITE, D.O.'S MOTION TO STRIKE PLAINTIFF'S OBJECTIONS TO DEFENDANT'S NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS UNDER PA.R.C.P. 4009.21 ORDER OF COURT AND NOW, this 114day of July 2014, upon consideration of the Defendant Darryl Guistwite, D.O.'s Motion to Strike Plaintiff's Objections to Defendant's Notice of Intent to Serve a Subpoena to Produce Documents and Things Under Pa.R.C.P. 4009.21, and it appearing that the Discovery Master, Hubert Gilroy, Esq., has recommended that all discovery in this case be stayed pending resolution of the issue of whether Gary D. Wolfe had a Power of Attorney over Violet M. Ward, the Motion is hereby HELD IN ABEYANCE. COU RT, CD � Th(Vm4s A. Placey C.P.J. 4 t � w CL .77. ccv Com) Distribution: ✓Andrew H. Foulkrod, Esq. �hn M. Skrocki, Esq. ,/ David H. Dowling, Esq. �ubert X. Gilroy, Esquire Discovery Master 1-7� ,7?..I,'64C� 2 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s) Court of Common Pleas C c CIVIL ACTION rn co xc-,Case Number: 14-1002 wr" < NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), intends to serve a subpoena identical to the one that is attached to this notice. To: Custodian Of Records, West Shore EMS, 205 Grandview Ave., Ste. 211, Camp Hill, PA 17011 You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena maybe served. Date: 5/2/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O._# 284488 pa_nai_14E_2 14-1002 Page 1 of 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Notice of Intent to Serve Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was delivered to: David B. Dowling, Esquire X First Class Mail Rhoads & Sinon, LLP Fax One S. Market Sq., 12th Flr. Certified Mail Harrisburg, PA 17101 Overnight Express Attorney for Plaintiff(s) Personal Service John Skrocki, Esquire X First Class Mail Law Office of John Skrocki Fax 100 Four Falls, Suite 515, 1001 Conshohocken State Road Certified Mail West Conshohocken, PA 19428 Overnight Express Attorney for Defendant(s) Personal Service Manor Care Health Services and Lucinda Bender, CRNP Date: 5/2/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 170.11 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O. # 284488 14-1002 Pagc 2 of 2 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), vs. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case No.: 14-1002 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received, and; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 5/22/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O. # 284488 pa_cptss Page 1 of 1 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), vs. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CIVIL ACTION Case No.: 14-1002 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Andrew H. Foulkrod, Esquire, attomey for the Defendant(s), certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received, and; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 5/22/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O. # 284488 pa cptss Page 1 of 1 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), 1'. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas CiViL ACTION Case Number: 14-1002 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian Of Records, West Shore EMS, 205 Grandview Ave., Ste. 211, Camp Hill, PA 17011 Re: Violet M. Ward DOB: 9/18/1958 SSN: XXX -XX -3546 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Billing Records; Paramedic Records; See "Attachment A." at Second Image National, 1805 Monument Ave., Ste. 208, Richmond', VA 23220, Fax: (800) 611-4555 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 address listed above. You have the right to seek in advance the reasonable cost ofpreparing 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: Andrew 1-1. Foulkrod, Esquire Foulkrod Ellis _ 4000 Market Street Camp Hill, PA 17011. Phone: (717) 909-7006 Fax: (717) 909-6955 t SUPREME COURT 'Ir.:';7/7354 r1 Attorney for• efrnaan�r Darryl Guistwiite,-i?,;©rrha.pf'• '•eZ,°-rye=r r ;te , BY THE COURT: Date: ; j - •i ,. Seal of Prothonotary/Clerk, Civil Division W.O. 4 284488-001 i-1-1002 Page 1 of 2 Attachment A Re: Name: Violet M. Ward DOB: 9/18/1958 SSN: XXX -XX -3546 Complete paramedic records from the first date to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: paramedic records, ambulance/medical records, reports, notes, charts, dispatch transcripts, insurance records, invoices and itemized statements of billing charges pertaining to the initial dispatch, examination, care, treatment, and transportation of the patient. All emaits between physicians and the patient regarding physical complaints, symptoms, and treatment, including secure messages. Violet Ward was transferred from Manor Care Health Services in Carlisle to Holy Spirit Hospital on 8/30/12 and we are looking to obtain the transport records. Patient DOB: 09/18!58 and SS#:192-52-3546 (Violet M. Ward). W.O. #I 284488-U01 14-1002 Page 2 of 2 pr_wll_: of 1 Commonwealth of Pennsylvania County of Cumberland Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), v. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, On the Defendant(s). Court of Common Pleas CIVIL ACTION Case Number: 14-1002 eturn of Service day of / /4- , yr.R47// 1, Xelie 437m7re , served with e foregoing subpoena by (describe the method of service): EPersonally delivering a copy to: 1-3:1tec-tified mail to: Person served (name): Custodian of Records Address where served:E 1. -XV.. --est Shore EMS 205 Grandview Ave., Ste. 211 Camp Hill, PA 17011 I verify that the statements in this return of service are true and correct. 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. Name of Witness Name of Person Served 10-200 (Rev. 7/99) (Reverse) W.O. # 284488-001 pe_ros_ 140_1 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND Gary D. Wolfe, Ind. and as Executor of the Estate of Violet M. Ward, Plaintiff(s), V5. Manor Care Health Services -Carlisle; Darryl Guistwite, D.O.; and Lucinda C. Bender, CRNP, Defendant(s). Court of Common Pleas 3 .- 0 "` _ = Pi} G-) z. s--+ CIVIL ACTION cxnr` r...)7000 T' —c: Case No.: 14-1002 <c) -▪ C"':), -71 71:c, CO CI- ....- --i -t --< CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received, and; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 5/22/2014 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Darryl Guistwite, D.O. W.O. # 284488 pa_cptss Page 1 of 1 Hubert X. Gilroy, Esquire C. r MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER1Q n NO -A SE? 26 P.tA Ure, CANBERLAHO COUNT,: PEtINS`I'LVAJIIP, MARTSON LAW OFFICES I.D. 24463 10 East High Street Carlisle, PA 17013 (717) 243-3341 GARY D. WOLFE, Individually and as Executor of the Estate of VIOLET M. WARD, : IN THE COURT OF COMMON PLEAS OF : COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2014-1002 : CIVIL ACTION - LAW MANORCARE HEALTH SERVICES- : CARLISLE, DARRYL GUISTWITE, D.O., : and LUCINDA C. BENDER, C.R.N.P., : Defendants MOTION FOR PAYMENT OF FEES Hubert X. Gilroy, Esquire, Discovery Master in the above matter, sets forth the following: 1. The undersigned was appointed as Discovery Master in the above matter on May 19, 2014. 2. The undersigned has filed a final report with the Court and the Court has issued appropriate Orders in conjunction with that report. 3. Paragraph 3 of the May 19, 2014 Order directed the Discovery Master to suggest an allocation of Master's fees and a determination as to whether any of the parties were acting in bad faith in the discovery process. 4. The Discovery Master did not determine that any of the parties were acting in bad faith during the discovery process. 5. Attached is the invoice for the Discovery Master's services in this case and the undersigned recommends that the three parties split the bill equally. Dated: September , 2014 Res y sub ed, Hubert X. G. roy, Esquire Martson Lv Offices 10 East I4igh Street Carlisle, PA 17013 (717) 243-3341 ID #29943 Discovery Master MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER. MARTS ON LAW OFFICES 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 INTERNET www.martsonlaw.com TAX IDENTIFICATION NUMBER 23-2002197 September 26, 2014 Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Gary D. Wolfe v Manorcare et al 2014-1002 PROFESSIONAL SERVICES RENDERED 05/21/2014 PL11 05/21/2014 HXG 06/02/2014 HXG 06/07/2014 HXG 06/10/2014 PL11 06/25/2014 HXG 06/29/2014 HXG 06/30/2014 HXG 06/30/2014 HXG 07/16/2014 HXG 07/17/2014 PL11 07/18/2014 PL11 07/20/2014 HXG Page 1 Invoice # 59822 Our File # 12297-00110 Hours Open file, letter to counsel, call to counsel, HXG time, 0.50 review of docket Review Judges Order, Open file and letter to Attorneys 0.40 Review correspondence from Atty Dowling, memo to 0.10 Shelly File review and memo to Shelly 0.20 Scheduled Conference call 0.50 Phone call with three Attys 0.45 Review letter and memo to Peg 0.10 Phone call to Judge Placey chambers 0.10 Conference with Judge Placey 0.45 Work on draft Reort and Order 0.80 Report and Order 0.50 Revisions to Report and Order 0.20 Revise report, letter to Attys 0.40 INFORMATION • ADVICE • ADVOCACY SM l '1!', OCT -2 AM C: i_ i.. "'ENUSYLVA EA, GARY D. WOLFE, as Individually and as Executor of the Estate of VIOLET M. �.i i ►E 'h' ' ° a WARD, Plaintiff �1 4�; v. QCountp of eCambtrianb IN THE COURT OF COMMON PLEAS MANORCARE HEALTH SERVICES- OF THE NINTH JUDICIAL DISTRICT CARLISLE; DARRYL GUISTWITE, D.O.; and LUCINDA A. BENDER, 14-1002 CIVIL ACTION C.R.N.P. Defendants IN RE: MOTION OF THE DISCOVERY MASTER ORDER OF COURT AND NOW, this 1St day of October 2014, upon consideration of the Motion of the Discovery Master, it is hereby DIRECTED that the fees for the Discovery Master shall be split equally between the three parties and each party is hereby directed to make payment to Martson Law Offices the sum of$331.70 for a total payment of $995.10. BY THE COURT, Thomas A. Placey C.P.J. Dom' tribution: ✓Arew H. Foulkrod, Esq. ./Jon M. Skrocki, Esq. ,/David H. Dowling, Esq. /I4ubert X. Gilroy, Esq. Cori ks /12414 'LEL