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HomeMy WebLinkAbout05-1626IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. Joseph P. Martinec Wesley D. Vander Ark, M.D. 3517 Belair Road 1857 Center Street Harrisburg, Dauphin Camp Hill, Cumberland County, County, Pennsylvania Pennsylvania ENT Facial Plastic Surgery Group, P.C. versus 1857 Center Street Camp Hill, Cumberland County, Pennsylvania Plaintiff(s) & Defendant(s) & Address(es) Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. XXX Writ of Summons shall be issued and forwarded to ( ) Attorney ( XX ) Sheriff Charles E. Wasilefski. Esauire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 (7171 238-7555 Name/Address/Telephone No. of Attorney Signature of Attorney Supreme Court ID No: 21027 Date: r' L 7 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. Date: Prothonotaly BY Deputy ( ) Check here if reverse is issued for additional information 12 n? ?a Cn i C ^ ?,..t L ,7 ?..J i •-S i _ Lc - -77 s DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 ATTORNEY FOR DEFENDANTS: BY: THOMAS M. CHAIRS, ESQUIRE WESLEY D. VANDER ARK, M.D., ATTORNEY I.D. NO. 78565 AND ENT FACIAL PLASTIC 1200 Camp Hill Bypass, Suite 205 SURGERY GROUP, P.C., Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803(Fax) JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Francis E. Marshall, Jr., Esquire on behalf of Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., with respect to the above-captioned matter. Respectfully submitted, Date: April 7, 2005 DICKIE, MCCAMEY & CHILCOTE, P.C. All By: Y /l`l FrancisV. Marshall, Jr., Esquire Supreme Court I. D. #27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, Wesley D. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P. C. CERTIFICATE OF SERVICE AND NOW, this 7"' day of April, 2005, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing Entry of Appearance for Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C. upon all counsel of record or parties involved by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 Dated: April 7, 2005 Z/) je Franci Y. N rshall, Jr., Esquire f? C7 ?a -rt t? s ri} f? .? i ??? ? r ^'% ?>' ,. ??. ? `.J -!.?? •'".?? ?.!'1 .? _? ? DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY I.D. NO. 78565 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803(Fax) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT/RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please issue a Rule on Plaintiff to file a Complaint in the above case within twenty (20) days after service of the Rule or suffer a judgment of non pros. Respectfully submitted, ATTORNEY FOR DEFENDANTS: WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., DICKIE, Date: April 7, 2005 P.C. By: t? Frans . Marshall, Jr., Esquir Sup jege Court I. D. #27594 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011-370 (717) 731-4800 Attorney for Defendants, WesleyD. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P. C. DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY I.D. NO. 78565 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803(Fax) JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants ATTORNEY FOR: DEFENDANTS WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED RULE TO FILE COMPLAINT AND NOW, THIS -?? DAY OF 2005, A RULE IS HEREBY ISSUED AGAINST THE PLAINTIFF TO FILE A COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OF THIS RULE OR SUFFER JUDGMENT OF NON PROS. Prothonotary Deputy CERTIFICATE OF SERVICE AND NOW, this 7`h day of April, 2005, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record or parties involved by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 Dated: April 7, 2005 i cn r? SHERIFF'S RETURN - REGULAR CASE NO: 2005-01626 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARTINEC JOSEPH P VS ARK WESLEY D VANDER MD ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn accordi says, the within WRIT OF SUMMONS was served upon ARK WESLEY D VANDER MD DEFENDANT , at 1224:00 HOURS, on the 31st day of March at 1857 CENTER STREET CAMP HILL, PA 17011 by handing to to law, , 2005 DENEEN BAKER, OFFICE MANAGER a true and attested copy of WRIT OF SUMMONS together and at the same time directing Her attention to the contents t] with Sheriff's Costs: Docketing 18.00 Service 11.10 Postage .37 Surcharge 10.00 So Answers: 04/01/2005 PETERS & WASILEFSKI Sworn and Subscribed to before By: me this day of Deputy Sher A.D. ns? - 7 _ Prothonotary CASE NO: 2005-01626 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARTINEC JOSEPH P VS ARK WESLEY D VANDER MD ET AL RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn accordinc says, the within WRIT OF SUMMONS was served upon to law, ENT FACIAL PLASTIC SURGERY GROUP PC t e DEFENDANT , at 1224:00 HOURS, on the 31st day of March 2005 at 1857 CENTER STREET CAMP HILL, PA 17011 by handing to DENEEN BAKER, OFFICE MANAGER ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together ith and at the same time directing Her attention to the contents th*eof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit 00 Surcharge 10.00 .00 16.00 So Answers: R. Thomas Kline 04/01/2005 PETERS & WASILEFSKI Sworn and Subscribed to before By: me this _ day of i A.D. Y?o Pro honotary 61 ty JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED 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, Counsel for Defendants certify 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) this certificate, (3) (4) a copy of the Notice of Intent, including the proposed subpoena, is attached to no objection to the subpoena has been received; the subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the subpoena. DICKIE, MCCAMEY & CHILCOTE, P.C. Date: 7 By: Y m"? ? acv Francis E. Marshall, Jr., Esquire Atty I.D. 427594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Counsel for Defendants LAW OFFICES OF DICKIE, MCCAMEY & CHILCOTE, P.C. 1200 CAMP HILL BYPASS SUITE 205 CAMP HILL, PmNSYI.vAmA 17011-3700 TEL. 717(131-0800 FAx. 717/731-4803 W W W.DMCLAW.COM Francis E. Marshall, Jr. Attorney-at-Law September 22, 2005 Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 Re: Martinec v. Wesley D. Vander Ark, M.D., et al. Cumberland County Docket No.: 05-1626 CIVIL - MM Our File No.: TDC-105, DMC File No. 0051707.0289378 Dear Mr. Wasilefski: m shat@dmclaw.com Enclosed please find two (2) Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 and a Notice of Intent in connection with the above-referenced matter. If I do not receive any objections to the subpoena within 20 days from the date of this letter, I will forward the Subpoenas to the Records Custodian for Holy Spirit Hospital and Tristan Associates. Thank you for your anticipated cooperation in this matter. If you have any questions or wish to discuss this matter in detail, please do not hesitate to contact me at your convenience. Very truly yours, Francis E. Marshall, Jr. FEM/cac Enclosures PITTSBURGH PHILADELPIBA I WASImJ mm D.C. m NEW JERSEY P NORTHCAROLINA v OHIO ar WEST VIRGINIA 412281-7272 2151925-2289 888-434-5566 856/988-5473 704/334-1108 740/284-1682 304/233-1022 JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants intend to serve a Subpoena identical to the Subpoena attached to this Notice, addressed to the following: Tristan Associates, 2808 Old Post Road, Suite 100, Harrisburg, PA 17110 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. DICKIE, MCCAMEY & CHILCOTE, P.C. Date: n) C G? By. Z it ?l f?(? 1. ? ??/ll L (' ?? ? ' L ; Francis E. Marshall, Jr., Esquire f ' Atty I.D. #27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Counsel for Defendants COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Tristan Associates 2808 Old Post Road, Suite 100 Harrisburg, PA 17110 Within twenty (20) days after service of this Subpoena, you are ordered by the court to produce the following documents or things: any and all medical records to include any and all films such as but not limited to MRIs, CT Scans and x-rays pertaining to Joseph Martinec, Account No.: 358934, SS#: 211-22-0954, DOB: 6/22/1930, Address, 3517 Belair Road, Harrisburg, PA 17109 at: DICKIE, MCCAMEY & CHILCOTE, P.C., 1200 CAMP HILL BYPASS, SUITE 205, CAMP HILL, PA 17011. You may deliver or mail legible copies of the documents or produce things by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Francis E. Marshall, Jr., Esquire ADDRESS: 1200 Camp Hill Bypass, Suite 205, Camp Hill, PA 17011 TELEPHONE: 717-7314800 SUPREME COURT ID#: 27594 ATTORNEY FOR: Defendants By the Court DATE:I1?, 2 Seal of the Court Prothonotary GJl c? T-n Co C__J T. ?l C-J -rn1 { VJ JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED 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, Counsel for Defendants certify 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; (4) the subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the subpoena. DICKIE, MCCAMEY & CHILCOTE, P.C. 7 / By: \ *P??-J ( P"? Date: off Francis E. Marshall, Jr., Esquire ?w Atty I.D. #27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Counsel for Defendants JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants intend to serve a Subpoena identical to the Subpoena attached to this Notice, addressed to the following: Records Custodian, Holy Spirit Hospital, 503 North 2181 Street, 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. DICKIE, MCCAMEY & CHILCOTE, P.C. Date:'? G ByGL1?C?i.1 Francis E. Marshall, Jr., Esquire Atty I.D. #27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Counsel for Defendants COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants TO: Records Custodian Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED Within twenty (20) days after service of this Subpoena, you are ordered by the court to produce the following documents or things: any and all medical records to include any and all films such as but not limited to MRh, CT Scans and x-rays pertaining to Joseph Martinec, Patient#: MR# 498216 SS#: 211-22-0954, DOB: 6/22/1930, Address, 3517 Belair Road, Harrisburg, PA 17109 at: DICIGE, MCCAMEY & CBILCOTE, P.C., 1200 CAMP 113LL BYPASS, SUITE 205, CAMP HILL, PA 17011. You may deliver or mail legible copies of the documents or produce things by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Francis E. Marshall, Jr., Esquire ADDRESS: 1200 Camp Hill Bypass, Suite 205, Camp Hill, PA 17011 TELEPHONE: 717-7314800 SUPREME COURT ID#: 27594 ATTORNEY FOR:Defendants By the Court DATE: 'Q Prothoirot Seal of the Court N t7 r? ;? -;, ?? <<, ..A Pii? ';'?: ??_ W , ?;? n ?,n PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 17171 238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff VS. WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants : IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - L AW No. 05-1626 CIVIL -MM JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [7171249-3166 800-990-9108 AVISO USTED HA SIDO DEMANDADIO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuesde la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defenses de, y objeciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en ]a demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra soya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes Para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABORGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [7171249-3166 800-990-9108 PETERS & WASILEFSKI By: Charles E. Wasilefsla, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [7171238-7555 Attorneys for Plaintiffs, Joseph P. Marinee JOSEPH P. MARTINEC, Plaintiff, V. WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 - 1626 CIVIL ACTION - LA W JURY TRIAL DEMANDED COMPLAINT NOW COMES, Plaintiff, Joseph P. Martinec ("Mr. Martinec"), by and through his attorneys, Peters & Wasilefski, and files this Complaint against Defendants, Wesley D. Vander Ark, M.D. ("Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), as follows: 1, Plaintiff, Mr. Martinec, is an adult individual who currently resides at 3517 Belair Road, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, Vander Ark, is an adult individual, who, currently has a place of business at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. At all times relevant, Defendant, Vander Ark, was licensed to practice medicine in the Commonwealth of Pennsylvania. 3. Defendant, ENT Group, is a corporation organized and registered in the Commonwealth of Pennsylvania for the purpose of providing medical services to patients with its principle place of business located at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. Defendant, ENT Group, is a professional corporation that has been organized for the purpose of providing and maintaining facilities and professional and/or paraprofessional personnel for the medical and surgical care and treatment of patients. Said Defendant, ENT Group, specifically provides medical and surgical services related to the ear, nose and throat. Defendant, ENT Group, employs other professional and/or paraprofessional staff to provide assistance to the physicians and physician's assistants in the medical care and treatment of patients and in the performance of surgery and post-surgical care. 4. Plaintiff, Mr. Martinec, was first seen at Defendant, ENT Group, by Defendant, Vander Ark, on or about February 10, 2003. with complaints of chronic hearing loss in his left ear. 5. On or about February 10, 2003, Defendant, Vander Ark, saw Plaintiff, Mr. Martinec, and performed a physical examination and audiogram and rendered the following assessment: Flaccid tympanic membrane with incur-stapedial joint erosion and stapedial pexy and mixed conductive hearing loss in the left ear. He also has an effusion on that side and sinonasal polyps. 2 6. On or about February 10, 2005, Defendant, Vander Ark, recommended that Plaintiff, Mr. Martinec, have a CT scan of the sinuses and his left temporal bone to rule out cholesteatoma in that ear. 7. On or about February 18, 2003, the CT scan was performed and the following interpretation of the CT Scan was rendered: Sinuses Pansinusitis with probable sino-nasal polyposis. Coronal images only were performed through the paranasal sinuses, as the patient was unable to comply with the supine positioning of the axial. Mastoid Concern for cholesteatoma on the left, with the floor of the middle cranial fossa appearing disrupted at the level of the mastoid air cells. 8. On or about February 21, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, who prescribed a repeat CT scan of Plaintiff, Mr. Martinec's, temporal bone and endoscopic sinus surgery to attempt to improve the Eustachian tube function prior to performing surgery on the ear. 9. At no time did Defendant, Vander Ark, discuss with Plaintiff, Mr. Martinec, any alternative conservative treatment for the sinuses nor any of the risks or complications of the proposed sinus surgery. Plaintiff, Mr. Martinec, was never apprised nor given the option of conservative medical care for his sinuses prior to surgery nor that the proposed surgery may cause brain damage. 3 10. On or about April 1, 2003, Plaintiff, Mr. Martinec, underwent surgery of the anterior and posterior ethmoidectomy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy. 11. Following surgery, Plaintiff, Mr. Martinec, was allowed to wake up fully extubated and taken to the recovery room. He was discharged home on Dyazide. 12. Following discharge, it was noted that Plaintiff, Mr. Martinec, was unable to urinate so he was taken to the Emergency Room where a Foley catherter was placed and he was discharged from the Emergency Room with the instruction to follow up with the urologist in one week. 13. On or about April 2, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, for a post operative follow up. Defendant, Vander Ark, examined Plaintiff, Mr. Martinec, and it was noted that the packs were in place and were removed, ethmoid bowls were clear and there was more crusting on the right side which was removed. Septa Gel was placed bilaterally and Plantiff, Mr. Martinec, was told to follow up in one week. 14. On or about April 4, 2003, two days following the first post operative visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, developed neck pain, headache and significant nasal drainage. He was becoming confused and was not eating as well as normal. 4 15. As a result of the symptoms described above in Paragraph 14, Mrs. Martinec telephoned Defendant, Vander Ark's, office and alerted them to the symptoms and complaints of Plaintiff, Mr. Martinec. Defendant, Vander Ark, did not see Plaintiff, Mr. Martinec, as a result of this call. Mrs. Martinec was merely told to give Plaintiff, Mr. Martinec, Tylenol for his headache. No further recommendations were made. 16_ Plaintiff, Mr. Martinec's, condition continued to become worse and on or about April 5, 2003, Mrs. Martinec again called Defendant, Vander Ark's, office and spoke to the answering service and again told them about Plaintiff, Mr. Martinec's, worsening symptoms and further expressed that she believed that such symptoms and complaints were the result of the surgery. Neither Mrs. Martinec nor Plaintiff, Mr. Martinec, received a call back. Plaintiff, Mr. Martinec, spent April 5 and April 6, 2003 in bed with ice packs on his head and was taking Tylenol every 4-6 hours for his headache. 17. On or about April 6, 2003, Plaintiff, Mr. Martinec's, condition deteriorated to the point that he was unable to get out of bed. Neither Defendant, Vander Ark, nor anyone from his office returned the call on this day. 18. Finally, on April 7, 2003, Defendant, Vander Ark's, office returned the call and informed Mrs. Martinec that there had been an appointment scheduled for Plaintiff, Mr. Martinec, to be seen at 8:30 a.m. Mrs. Martinec had not been previously informed of the alleged appointment. 5 19. However, on April 7, 2003, Plaintiff, Mr. Martinec, was seen by Defendant, Vander Ark, later that morning. At that time, Plaintiff, Mr. Martinec, was accompanied by Mrs. Martinec and she informed Defendant, Vander Ark, that Plaintiff, Mr. Martinec, was confused, had difficulty walking, was experiencing nasal drainage and that he had complained of neck pain and headache for three days and that this had been reported to his office. At the time of this visit, Plaintiff, Mr. Martinec, had to be assisted into the office. 20. On April 7, 2003, Defendant, Vander Ark, performed a physical examination, endoscopic examination and debridement of the ethmoid bowls. With regard to the complaints of confusion, neck pain and headache, Defendant, Vander Ark, did nothing except indicated to Mrs. Martinec that if this persisted, she should take Plaintiff, Mr. Martinec, to the emergency room for evaluation and blood work. 21. Upon returning home after his visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, continued to experience confusion and weakness and Mrs. Martinec took him to the emergency room. 22. On April 7, 2003, Plaintiff, Mr. Martinec, was taken to the emergency room and admitted into the hospital with a diagnosis of: altered mental status, sepsis, urinary tract infection, and rule out meningitis. A CT scan of the brain showed that he had pneumocephalus and a lumbar puncture resulted in four samples containing blood. 6 23. Additional CT Scans were ordered and the Ct Scan of the sinuses revealed a hole in the cruciform plate posteriorly and the posterieor superior ethmoid region, approximately 4mm anterior to the sphenoid. Plaintiff, Mr. Martinec, was also noted to have increased air in his head and underwent ventriculostomy. 24. After being examined by the Emergency Room physician and the diagnosis of meningitis was made, Mrs. Martinec called Defendant, Vander Ark, and told him that Plaintiff, Mr. Martinec, had been diagnosed as having meningitis and that he was being admitted into the hospital. Defendant, Vander Ark, came to the Emergency Room but did not examine Plaintiff, Mr. Martinec. He did, however, indicate to Mrs. Martinec that "I must have nicked his sinus when I was cleaning it out. " 25. The conditions described in the previous paragraphs were all caused by the negligent performance of the sinus surgery by Defendant, Vander Ark. 26. While in the hospital, on April 11, 2003, Plaintiff, Mr. Martinec, underwent nasal endoscopy and repair of the cerebral spinal fluid leak with turbinate graft. 27. Plaintiff, Mr. Martinec, remained hospitalized until May 30, 2003, when he was transferred to a rehab facility for rehabilitation necessitated by the brain injury sustained as a result of Defendant, Vander Ark, and Defendant, ENT Group, negligent and substandard medical care. 7 28. Plaintiff, Mr. Martinec, after being discharged from the hospital, was transferred to the Mechanicsburg Rehab Hospital where he was hospitalized for the period May 30, 2003 through July 16, 2003. At the rehab facility, he was given physical therapy to learn to walk, speech therapy, occupational therapy, and had to be fed with a gastrostomy tube. He needed total rehabilitation. 29. Upon discharge from the rehab facility, Plaintiff, continued to receive care and treatment until August 27, 2003 at which time he had outpatient care at the rehab facility until October 30, 2003. 30. Upon his discharge on May 30, 2003, Plaintiff, Martinec, had the following discharge diagnosis: Meningitis, presumptively staph, following complex sinus surgery; Systemic Candidiasis; Methansone resistant staph aureus traceal aspirate; Pneumocephalus; Aspiration pneumonia, possible MRSA; Cerebrospinal fluid leak; placement of ventriculostomy to relieve air and act as a drain for possible stoppage of CSF leak. All of these conditions were legally caused by the negligent and substandard medical treatment that had been provided by Defendant, Vander Ark, and Defendant, ENT Group. 31. As a direct and proximate result of the negligent and substandard medical care and treatment provided by Defendant, Vander Ark, and Defendant, ENT Group, Plaintiff, Martinec, in addition to the injuries described above in Paragraph 27, suffered serious central nervous system infection resulting in frontal lobe dysfunction. This has left Plaintiff, Mr. Martinec, with significant mental and emotional 8 dysfunctions, including but not limited to: inattention, lack of motivation, sleepiness and lack of energy and interests. 32. Defendant, Vander Ark, and Defendant, ENT Group, provided substandard medical care and treatment to Plaintiff, Mr. Martinec, that was below the standard of care required for the appropriate treatment of Plaintiff, Mr. Martinec, resulting in the conditions described above. 33. As a direct and proximate result of the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, he has suffered permanent irreparable injury resulting in continued pain and discomfort„ and restriction in activity. 34. Further, the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, increased the risk of harm to him. 35. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff to incur substantial medical expenses in the past, present and the future and claim is made therefore. 36. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to be permanently disabled. 9 37. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to incur other miscellaneous expenses in an effort to live as normal a life as possible under the circumstances and claim is made therefore. 38. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer a loss of income and a loss of earning capacity and claim is made therefore. 39. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer in the past, present and future great mental and physical pain and suffering, great inconvenience and an inability to carry out his normal daily activities, great embarrassment and humiliation and loss of life's pleasures and enjoyment, and claim is made therefore. COUNT I JOSEPH P. MARTINEC V WESLEY D. VANDER ARK, M.D. MEDICAL MALPRACTICE 40. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 36 above as if fully rewritten herein. 10 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligence, carelessness, gross negligence, and willful and wanton careless conduct of Defendant, Vander Ark, as follows: a. Failing to evaluate Plaintiff, Mr. Martinec's, condition and to provide proper treatment or involve a physician experienced with treating Plaintiff's condition; b. Failing to advise and prescribe to Plaintiff, Mr. Martinec, alternative conservative medical treatment for any sinus condition that he had that could have and should have been used prior to surgical treatment prescribed by Defendant, Vander Ark. c. Performing the sinus surgery without using medical treatment as a first option; d. Failing to warn Plaintiff, Mr. Martinec, of the complications that could occur as a result of the sinus surgery, including but not limited to puncturing the wall of the sinus allowing spinal fluid to leak, causing infection into the brain that would cause brain injury; e. Failing to take the necessary precautions to protect Plaintiff, Mr. Martinec, from infection that resulted in the brain injury; 11 f. Recommending surgery that was neither indicated or necessary; g. Performing sinus surgery that was not indicated and not necessary since Plaintiff, Mr. Martinec, was asymptomatic regarding his sinuses; h. Negligently recommending and performing the sinus surgery and follow up care without consulting a physician or other specialist and without prescribing antibiotic therapy to prevent infection following the procedure when he knew that doing so would increase the risk to Plaintiff, Mr. Martinec, and expose him to life threatening conditions and brain damage; i. Negligently recommending and performing the sinus surgery when he knew or should have known that it would increase the risk of injury to Plaintiff, Mr. Martinec; j. Failing to return telephone calls from Plaintiff, Mr. Martinec, following sinus surgery when neurological symptoms were being performed thereby increasing the risk that Plaintiff, Mr. Martinec, would be subjected to life threatening conditions and brain damage; 12 k. Failing to see and examine and provide definitive treatment to Plaintiff, Mr. Martinec, at a time when the life threatening condition and brain injury could have been prevented; 1. Negligently failing to promptly recognize the complications of the sinus surgery and not instituting prompt treatment thereby increasing the risk that Plaintiff, Mr. Martinec, would be exposed to life threatening conditions and brain damage; m. Negligently and carelessly setting in motion a series of events commenced with his negligent treatment of Plaintiff, Mr. Martinec, that resulted in exposing him to life threatening conditions and brain damage; n. Failing to properly care and treat Plaintiff, Mr. Martinec, following the negligent performance of the sinus surgery; o. Failing to properly care and treat Plaintiff, Mr. Martinec, for the obvious conditions that resulted from Defendant, Vander Ark, negligently puncturing the sinus cavity allowing infection to occur in the central nervous system by not providing proper care and treatment at a time when he knew or should have known that improper treatment would increase the risk of developing life threatening conditions and brain injury; 13 p. Failing to possess adequate knowledge, training and experience to treat Plaintiff, Mr. Martinec, once obvious nerurological symptoms developed as a result Defendant, Vander Ark, negligently puncturing the sinus cavity so that prompt and appropriate treatment could be administered at a time that the risk of injury could have been lessened; q. Failing to obtain appropriate consultation in a timely fashion prior to commencing treatment that was contraindicated for Plaintiff, Mr. Martinec's, condition and/or continue a course of treatment when it became apparent that such treatment was increasing the risk of life threatening conditions and Plaintiff's condition was deteriorating; r. Failing to or delaying the transfer of Plaintiff, Mr. Martinec, to the care of physicians who had sufficient knowledge, education and experience to diagnose and treat his condition; and s. Being otherwise careless and negligent as may be discovered during the discovery proceedings in this case. 42. Defendant, Vander Ark's, negligent and careless actions in providing substandard care and treatment of Plaintiff, Mr. Martinec, resulted in his sustaining brain injury and conditions related to the brain injury. Defendant, Vander 14 Ark, is liable for all subsequent consequences of his negligent and careless sub-standard care and treatment that he provided to Plaintiff, Mr. Martinec. The negligent and careless sub-standard care and treatment provided by Defendant, Vander Ark, is a substantial factor and legal cause of Plaintiff's injuries and damages as more fully set forth above; and/or increased the risk that Plaintiff, Mr. Martinec, would suffer such injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, Vander Ark, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY VICARIOUS LIABILITY 43. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 39 above as if fully rewritten herein. 44. At all times material hereto, Defendant, ENT Group, employed physicians, physicians' assistants, nurses and other professionals and paraprofessionals, including but not limited to Defendant, Vander Ark, to provide and/or assist in providing medical and surgical care and treatment to patients of Defendant, ENT Group. 45. At all times material hereto, Defendant, ENT Group, acted through its agents, ostensible agents, servants, and/or employees and is responsible for 15 all actions or inactions of its agents, ostensible agents, servants, and/or employees and is vicariously liable for all of their negligence and carelessness, including that of Defendant, Vander Ark, as described above. 46. Defendant, ENT Group, through its agents, ostensible agents, servants and employees was otherwise careless and negligent as may be determined after discovery is complete in this case. 47. As a result of the negligent and careless medical care and treatment rendered by the agents, ostensible agents, servants and employees of Defendant, ENT Group, said Defendant, ENT Group, is vicariously liable for all of Plaintiff's injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY CORPORATE LIABILITY 48. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 44 above as if fully rewritten herein. 49. Defendant, ENT Group, owed an non-delegable duty to Plaintiff, Mr. Martinec, to insure his safety and well-being while he was receiving medical care 16 while being treated by its staff physicians, physicians' assistants, other paraprofessionals, agents, ostensible agents, servants and employees. 50. Defendant, ENT Group, failed to uphold and assur that its staff physicians, physicians' assistants and other paraprofessionals and staff and its agents, ostensible agents, servants and employees provided the appropriate standard of medical care and treatment to Plaintiff, Mr. Martinec, in the following respects: a. Failing to properly select and retain physicians and physicians' assistants and other staff to provide timely and adequate care and treatment to its patients treated by its office, including, Plaintiff, Mr. Martinec, as set forth herein above; b. Failing to properly the physicians, physicians assistants, and healther care professionals and paraprofessionals and other staff in providng medial care and treatment to its patients so as to assure the rendering of good, timely, appropriate and adequate medical care to its patients, including Plaintiff, Mr. Martinec; c. Failing to properly formulate, adopt and enforce adequate rules, policies and procedures to insure quality medical care for its patients, including Plaintiff, Mr. Martinec. 17 51. Defendant, ENT Group, through its administration, agents, ostensible agents, servants or employees, had actual or constructive notice of the negligent and careless medical treatment provided to Plaintiff, Mr. Martinec. 52. Defendant, ENT Group's, negligence and carelessness either caused or increased the risks that Plaintiff, Mr. Martinec, would suffer the premanten disabilities as a result of the failure to appropriately terat and care for his physical condition as previously set forth above. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. PETERS & WASILEFSKI By:? Charles E. Wasilefski, Esquyr Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Ext. 110 Attorneys for Plaintiff, Joseph P. Martinec Date: 18 VERIFICATION I hereby affirm that the following facts are correct: I, Joseph P. Martinec am the Plaintiff in the foregoing action and the attached Complaint is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation of the prosecution of the lawsuit. The language of the Complaint is that of counsel and not of me. I have read the Complaint and to the extent that the Complaint is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Joseph P. Martinec ,$? Date: 01'Ucl) y 0 CERTIFICATE OF SERVICE This is to certify that 1, Pamela J. Crum, a legal assistant in the law offices of Peters & Wasilefski, have this cj,, y-) day ot????l? , 2005, served a true and correct copy of the foregoing COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum ,. , a n -; ...i ..: -n ?„ .I ` t ? DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY I.D. NO. 78565 BY: AARON S. JAYMAN, ESQUIRE ATTORNEY I.D. NO. 85651 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803(Fax) JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants ATTORNEY FOR: DEFENDANTS WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, come Defendants, Wesley D. Vander Ark, M. D. ("Dr. Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), by and through their counsel, Dickie, McCamey & Chilcote, P.C., and preliminarily object to Plaintiff's Complaint, as follows: Plaintiff, Joseph Martinec, commended this action by way of Writ of Summons filed on March 29, 2005. Plaintiff's Complaint was filed on November 30, 2005. A copy of Plaintiff's Complaint is attached hereto as Exhibit "A." The underlying basis of Plaintiff's Complaint involves the alleged negligent recommendation and performance of sinus surgery resulting in alleged frontal lobe symptoms with memory loss and cognitive defects. 4. The averments specific to Dr. Vander Ark are set forth in Count I of Plaintiff's Complaint. 5. The averments specific to ENT Group are set forth in Counts II and III of Plaintiffs Complaint. L THE DEFENDANTS PRELIMINARILY OBJECT TO PLAINTIFF'S COMPLAINT PURSUANT TO PA.R.C.P. 1028(a)(2) IN THAT THE COMPLAINT FAILS TO COMPLY WITH PA.R C. P. 1042.2(a). 6. The Defendants hereby incorporate by reference Paragraphs 1 though 5 as if herein set forth at length. 7. Plaintiff s Complaint purports to set forth professional liability claims against Dr. Vander Ark and ENT Group. However, Plaintiff has not alleged that he is asserting professional liability claims against any Defendant as required by Pa.R.C.P. 1042.2(a). 9. Pa.R.C.P. 1042.2(a) states that "[a] complaint shall identify each defendant against whom the plaintiff is asserting a professional liability claim." 10. Nowhere in Plaintiff s Complaint does Plaintiff identify that a professional liability claim is being asserted against the Defendants. 11. Pa.R.C.P. 1042.2(b) states that "[a] defendant may raise by preliminary objections, the failure of the complaint to comply with subdivision (a) of this rule." 2 12. Since Plaintiff s Complaint fails to comply with Pa.R.C.P. 1042.2(a), it should be dismissed, or in the alternative, Plaintiff should be required to file an amended complaint specifically asserting professional liability claims against the Defendants. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court dismiss Plaintiff s Complaint, or in the alternative, order Plaintiff to file an amended complaint specifically asserting professional liability claims against the Defendants II. THE DEFENDANTS PRELIMINARILY OBJECT TO PLAINTIFF'S COMPLAINT PURSUANT TO PA.R.C.P. 1028(a)(2) IN THAT THE COMPLAINT FAILS TO IDENTIFY. OR OTHERWISE ATTEMPT TO IDENTIFY, THE AGENTS, OSTENSIBLE AGENTS, SERVANTS AND EMPLOYEES OF ENT GROUP. 13. The Defendants hereby incorporate by reference Paragraphs 1 though 12 as if herein set forth at length. 14. In Counts 11 and III of the Complaint, Plaintiff alleges that ENT Group was vicariously and corporately liable for the actions of its agents, ostensible agents, servants and employees, including Dr. Vander Ark. 15. At no point in the First Amended Complaint, however, does Plaintiff specifically allege, or even attempt to allege, which agent, servant and employee was allegedly negligent other than Dr. Vander Ark. 16. Nor does Plaintiff allege what specific acts of negligence may be attributable to such unidentified individual. 17. Absent specific names of individuals and the specific acts of negligence these alleged individuals committed, the Defendants have not been provided with the facts upon which Plaintiffs cause of action is based. 3 18. While it is unnecessary to plead all the various details of an alleged agency or relationship, a complainant must allege, at a minimum, facts which: a. Identify the agent by name or appropriate description; and b. Set forth the agent's authority and how the tortuous acts of the agent either fall within the scope of that authority, or, if unauthorized, were ratified by the principal. (Citations omitted.) More importantly, an agent who is not a servant is not subject to any right of control by his principal over the details of his conduct, and the principal is not liable for harm caused by the agent's unauthorized negligent physical conduct. (Citations omitted.) Alumni Association, Delta Zeta Zeta of Lambada Chi Alpha Fraternity v. Sullivan, 535 A.2d 1095 (Pa. Super. 1987). 19. In the case at hand, Plaintiff has failed to allege, as required as a minimum by the Alumni Association court, the agent, servant/or employee to have acted on behalf of the Defendants and the alleged agent, servant and/or employee's authority to act. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court enter an Order striking Counts 11 and III of Plaintiff's Complaint or, in the alternative, require Plaintiff to file a more specific pleading with respect to the aforesaid Counts pursuant to Pa.R.Civ.P. 1028(a)(3). III. THE DEFENDANTS PRELIMINARILY OBJECT TO PLAINTIFF'S COMPLAINT PURSUANT PA.R.C.P. 1028(a)(4) BEING LEGALLY INSUFFICIENT IN THAT THE PLAINTIFF ALLEGES A THEORY OF CORPORATE NEGLIGENCE AGAINST THE ENT GROUP WHICH IS NOT RECOGNIZED BY LAW 20. The Defendants hereby incorporate by reference Paragraphs 1 though 20 as if herein set forth at length. 21. In Count III of his Complaint, the Plaintiff pleads a claim against ENT Group based on a theory of direct corporate liability. 4 22. Corporate negligence involves the direct negligence of an entity, as opposed to the vicarious liability for the acts of employees. Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997). 23. hi Count III of the Complaint, the Plaintiff avers direct corporate negligence against ENT Group as follows: (a) Failing to properly select and retain physicians and physicians' assistants and other staff to provide timely and adequate care and treatment to its patients treated by its office, including, Plaintiff, Mr. Martinec, as set forth herein above; (b) Failing to properly (sic) the physicians, physicians' assistants, and healther (sic) care professionals and paraprofessionals and other staff in providing medical care and treatment to its patients so as to assure the rendering of good, timely, appropriate and adequate medical care to its patients, including, Plaintiff, Mr. Martinec: (c) Failing to properly formulate, adopt and enforce adequate rules, policies and procedures to insure quality medical care for its patients, including, Plaintiff, Mr. Martinec. 24. Accordingly, in the aforesaid Count, the Plaintiff alleges liability on the part of ENT Group under a theory of corporate negligence. 25. The theory of corporate negligence has been extended to apply to a hospital, which, according to this theory of liability, owes the following duty to its patients: a. A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; b. A duty to select and retain only competent physicians; C. A duty to oversee all persons who practice medicine within its walls as to patient care; and d. A duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991). 5 26. Under the theory of corporate negligence, a hos ital is liable if it fails to uphold the proper standard of care owed to its patients. Moser v. Heistand, 601 A.2d 1322, 1325 (Pa. 1996). 27. The Pennsylvania Supreme Court, however, has recently specifically declined to extend the corporate negligence principles of Thompson to a physician practice group. Sutherland v. Monogahela Valley Hospital, 856 A.2d 55 (Pa. Super. 2004). 28. In rejecting the extension of the theory of corporate negligence to physician offices, the Superior Court stated as follows: "We note that the policy considerations underlying the Pennsylvania Supreme Court's creation of the theory of corporate liability for hospitals are not present in the situation of a physicians' office. In Thompson, the Supreme Court recognized that `[t]he corporate hospital of today has assumed the role of a comprehensive health center with responsibility for arranging and coordinating the total healthcare of its patients.' Thompson, supra at 706. The same cannot be said for a physicians' practice group." Sutherland, supra at 61-62. 29. Moreover, in Angeloff v. Armstrong et al., Cumberland County Docket No. 2004-4743, a panel consisting of Judge Hoffer, Judge Oler and Judge Guido, sustained a defendant physician group's preliminary objections and refused to extend the theory of corporate negligence to a physician practice group based on the Superior Court's holding in Sutherland. A copy of the opinion and order are attached hereto as Exhibit "B." 30. The question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Warner v. Plater v. Zvverk, 799 A.2d 776 (Pa. Super. 2002). 6 31. At present, no recovery under a theory of corporate negligence is possible with respect to ENT Group because that theory has been specifically rejected by the Pennsylvania Superior Court relative to a physician practice groups. Sutherland, supra. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court strike Plaintiffs corporate negligence claim against Facial Plastic Surgery Group, P.C., from Plaintiff's Complaint for failing to state a cause of action upon which relief may be granted. IV. THE DEFENDANTS PRELIMINARILY OBJECT TO THE ALLEGATIONS ASSERTED IN PARAGRAPHS 41(m), 41(n) and 41(s) OF PLAINTIFF'S COMPLAINT FOR FAILURE TO COMPLY WITH THE FACTUAL SPECIFICITY REQUIREMENT OF PA.R.C.P. 1019(a) AS INTERPRETED BY CONNOR Y. ALLEGHENY GENERAL HOSPITAL. 461 A.2D 600 (Pa. 1983). 32. The Defendants hereby incorporate by reference Paragraphs 1 though 32 as if herein set forth at length. 33. The particular language in Plaintiff's Complaint at issues is contained in paragraphs 41(m), 41(n) and 41(s) and reads as follows: 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligence, carelessness, gross negligence and willful and wanton careless conduct of Defendant, Vander Ark, as follows: (m) Negligently and carelessly setting in motion a series of events commenced with is negligent treatment of Plaintiff, Mr. Martinec, that resulted in exposing him to life threatening conditions and brain damage; (n) Failing to properly care and treat Plaintiff, Mr. Martinec, following the negligent performance of the sinus surgery; (s) Being otherwise careless and negligent as may be discovered during the discovery proceedings in this case. 7 34. Pa.R.C.P. 1019(a) requires a plaintiff to state in the complaint, in concise and summary form, the material facts upon which a cause of action is based. The purpose of this rule is to require the pleader to disclose in the complaint the specific facts upon which the plaintiffs cause of action is based so that plaintiffs proof may be confined to such actions, thus enabling the defendant to reasonably prepare his defense. Baker v. Ranges, 229 Pa.Super. 333, 324 A.2d 498 (1974). 35. The Supreme Court of Pennsylvania in the case of Connor v. Allegheny General Hospital, supra., attached great significance to the use of nebulous boilerplate language in the provisions of pleadings. The Connor decision places the onus on the defendant to preliminarily object to such "catch all" language in order to properly prevent a Plaintiff from introducing new theories of negligence and new causes of action beyond the statute of limitations. Connor, 229 Pa. at 310, n.3, 461 A.2d at 603, n.3. 36. The above-quoted averments do not contain the "concise and material facts" required by Pa.R.C.P. 1019 or the factual specificity required by Pa.R.C.P. No. 1028(a)(3). 37. Plaintiff uses such broad and generic terminology within paragraphs 41(m), 41(n) and 41(s) from which any number of interpretations could be derived, which would allow Plaintiff to amend his Complaint to add new allegations of negligence at a later date, well after the statute of limitations has run. 38. Defendants should not be required to anticipate every potential theory which Plaintiff might subsequently contend is within the scope of the generic allegations of the Complaint. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court strike paragraphs 41(m), 8 41(n) and 41(s) from the Complaint as stated, or in the alternative, require Plaintiff to file a more specific pleading with respect to the aforesaid paragraphs pursuant to Pa.R.Civ.P. 1028(a)(3). V. THE DEFENDANTS PRELIMINARILY OBJECT TO THE ALLEGATIONS OF WILLFUL AND WANTON CARELESS CONDUCT ON THE PART OF DR. VANDER ARK AND ANY EXPRESSED OR IMPLIED CLAIM FOR PUNITIVE DAMAGES FOR FAILURE TO PLEAD ANY UNDERLYING FACTS SUFFICIENT TO SUSTAIN SUCH A CLAIM. 39. The Defendants hereby incorporate by reference Paragraphs 1 though 38 as if herein set forth at length. 40. Without pleading any underlying facts to support such claims, Plaintiff's Complaint baldly asserts at paragraph 41 that the acts of Dr. Vander Ark were grossly negligent as well as willful and wanton. See 141, Exhibit "A." 41. Although a separate count for punitive damages is not asserted, the language contained in paragraph 41 is indicative of, or may be construed to represent, a claim for punitive damages against Dr. Vander Ark. 42. Under Pennsylvania law, punitive damages may only be awarded for conduct that is the result of healthcare provider's willful or wanton or reckless indifference to the rights of others. 40 P.S. §1303.505 (2002). As a result, punitive damages are only available in extremely limited circumstances in Pennsylvania. 43. Punitive damages may not be awarded for ordinary negligence, even gross negligence. Hutchison v. Luddv, 763 A.2d 826, 827 (Pa.Super. 2000). 44. As the Superior Court has stated: It is well settled that punitive damages will lie only in cases of outrageous behavior, where defendant's egregious conduct shows either an evil motive or reckless indifference to the rights of others. Punitive damages are appropriate when an individual's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct. 9 Slappo v. J's Development Associates, Inc. 791 A.2d 409, 417 (Pa.Super. 2002) quoting from Bannar v. Miller. 701 A.2d 232, 242 (Pa.Super. 1997). 45. Also, as is this case here, where a complaint contains nothing but conclusory statements that the conduct of the defendants was willful, wanton, or reckless, without allegations of fact to support the same, the plaintiffs claim for punitive damages is properly dismissed. Facts supporting a claim of outrageous conduct must be found in a plaintiffs complaint. Smith v. Brown, 423 A.2d 743, 745 (Pa.Super. 1980). 46. This Honorable Court has consistently dismissed punitive damage claims in medical malpractice actions for failure to plead material facts to support the proposition that a healthcare provider acted wilfully, wantonly, outrageously, with an evil motive or with reckless or conscious indifference to a plaintiffs well-being. Angeloff v. Armstrong, No. 2004-4743 (Ct. Com. Pl. Cumberland County, May 13, 2005); Garrity v. Macaluso, No. 01-1300 Civil Term, (Ct. Com. Pl. Cumberland County, July 31, 2001), Dorsey v. Pinker, No. 98-3107 Civil Term, (Ct. Com. Pl. Cumberland County, August 4, 1999) Townsend-Ensor v. Entwistle, No. 98-5606 Civil Term, (Ct. Com. Pl. Cumberland County, June 17, 1999) Gordon v. Taggart, No. 97-6684 Civil Term, (Ct. Com. Pl. Cumberland County, July 2, 1998). 47. In the instant matter, Plaintiff has not plead material facts to support a claim for punitive damages. Rather, the underlying facts of Plaintiffs Complaint involve the alleged negligent recommendation and performance of sinus surgery resulting in alleged frontal lobe symptoms with memory loss and cognitive defects. There are not facts plead to support claims of wilful or wanton behavior on the part of Dr. Vander Ark with respect to his care and treatment of Plaintiff. 10 48. As such, it is submitted that there is absolutely no basis for the imposition of punitive damages against the Dr. Vander Ark and such claim should be dismissed as a matter of law at this juncture. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court strike all references to willful or wanton conduct as well as any expressed or implied claim for punitive damages. Respectfully submitted, Date: jZl?plb'? DICKIE, MCC? & CHILCOTE, P.C. By: Franc? s111, Jr., Esquire Supr o mmI. D. #27594 Aaron 'S. Esquire Supreme Court I.D. #85651 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, WesleyD. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P. C. 11 ,Cx?) to; 7- 4 PETERS & WASILEFSHI By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [7 1 71 23 8-7 555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff VS. WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants : IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - L AW No. 05-1626 CIVIL -MM JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims,set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [7171249-3166 800-990-9108 AVISO USTED HA SIDO DEMANDADIO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6sde la notificacidn de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defenses de, y objeciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede set dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABORGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [717] 249-3166 800-990-9108 PETERS & WASILEFSIQ By: Charles E. Wasilefski, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Attorneys for Plaintiffs, Joseph P. Martinet JOSEPH P. MARTINEC, Plaintiff, V. ; WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 - 1626 CIVIL ACTION - LA W JURY TRIAL DEMANDED COMPLAINT NOW COMES, Plaintiff, Joseph P. Martinet ("Mr. Martinet'), by and through his attorneys, Peters & Wasilefski, and files this Complaint against Defendants, Wesley D. Vander Ark, M.D. ("Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), as follows: 1, Plaintiff, Mr. Martinet, is an adult individual who currently resides at 3517 Belair Road, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, Vander Ark, is an adult individual, who, currently has a place of business at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. At all times relevant, Defendant, Vander Ark, was licensed to practice medicine in the Commonwealth of Pennsylvania. 3. Defendant, ENT Group, is a corporation organized and registered in the Commonwealth of Pennsylvania for the purpose of providing medical services to patients with its principle place of business located at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. Defendant, ENT Group, is a professional corporation that has been organized for the purpose of providing and maintaining facilities and professional and/or paraprofessional personnel for the medical and surgical care and treatment of patients. Said Defendant, ENT Group, specifically provides medical and surgical services related to the ear, nose and throat. Defendant, ENT Group, employs other professional and/or paraprofessional staff to provide assistance to the physicians and physician's assistants in the medical care and treatment of patients and in the performance of surgery and post-surgical care. 4. Plaintiff, Mr. Martinec, was first seen at Defendant, ENT Group, by Defendant, Vander Ark, on or about February 10, 2003. with complaints of chronic hearing loss in his left ear. 5. On or about February 10, 2003, Defendant, Vander Ark, saw Plaintiff, Mr. Martinec, and performed a physical examination and audiogram and rendered the following assessment: Flaccid tympanic membrane with incus-stapedial joint erosion and stapedial pexy and mixed conductive hearing loss in the left ear. He also has an effusion on that side and sinonasal polyps. 2 6. On or about February 10, 2005, Defendant, Vander Ark, recommended that Plaintiff, Mr. Martinec, have a CT scan of the sinuses and his left temporal bone to rule out cholesteatoma in that ear. 7. On or about February 18, 2003, the CT scan was performed and the following interpretation of the CT Scan was rendered: Sinuses Pansinusitis with probable sino-nasal polyposis. Coronal images only were performed through the paranasal sinuses, as the patient was unable to comply with the supine positioning of the axial. Mastoid Concern for cholesteatoma on the left, with the floor of the middle cranial fossa appearing disrupted at the level of the mastoid air cells. 8. On or about February 21, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, who prescribed a repeat CT scan of Plaintiff, Mr. Martinec's, temporal bone and endoscopic sinus surgery to attempt to improve the Eustachian tube function prior to performing surgery on the ear. 9. At no time did Defendant, Vander Ark, discuss with Plaintiff, Mr. Martinet, any alternative conservative treatment for the sinuses nor any of the risks or complications of the proposed sinus surgery. Plaintiff, Mr. Martinet, was never apprised nor given the option of conservative medical care for his sinuses prior to surgery nor that the proposed surgery may cause brain damage. 3 10. On or about April 1, 2003, Plaintiff, Mr. Martinec, underwent surgery of the anterior and posterior ethmoidectomy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy. 11. Following surgery, Plaintiff, Mr. Martinec, was allowed to wake up fully extubated and taken to the recovery room. He was discharged home on Dyazide. 12. Following discharge, it was noted that Plaintiff, Mr. Martinec, was unable to urinate so he was taken to the Emergency Room where a Foley catherter was placed and he was discharged from the Emergency Room with the instruction to follow up with the urologist in one week. 13. On or about April 2, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, for a post operative follow up. Defendant, Vander Ark, examined Plaintiff, Mr. Martinec, and it was noted that the packs were in place and were removed, ethmoid bowls were clear and there was more crusting on the right side which was removed. Sepra Gel was placed bilaterally and Plantiff, Mr. Martinec, was told to follow up in one week. 14. On or about April 4, 2003, two days following the first post operative visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, developed neck pain, headache and significant nasal drainage. He was becoming confused and was not eating as well as normal. 4 15. As a result of the symptoms described above in Paragraph 14, Mrs. Martinet telephoned Defendant, Vander Ark's, office and alerted them to the symptoms and complaints of Plaintiff, Mr. Martinet. Defendant, Vander Ark, did not see Plaintiff, Mr. Martinet, as a result of this call. Mrs. Martinet was merely told to give Plaintiff, Mr. Martinet, Tylenol for his headache. No further recommendations were made. 16. Plaintiff, Mr. Martinet's, condition continued to become worse and on or about April 5, 2003, Mrs. Martinet again called Defendant, Vander Ark's, office and spoke to the answering service and again told them about Plaintiff, Mr. Martinet's, worsening symptoms and further expressed that she believed that such symptoms and complaints were the result of the surgery. Neither Mrs. Martinet nor Plaintiff, Mr. Martinet, received a call back. Plaintiff, Mr.. Martinet, spent April 5 and April 6, 2003 in bed with ice packs on his head and was taking Tylenol every 4-6 hours for his headache. 17. On or about April 6, 2003, Plaintiff, Mr. Martinet's, condition deteriorated to the point that he was unable to get out of bed. Neither Defendant, Vander Ark, nor anyone from his office returned the call on this day. 18. Finally, on April 7, 2003, Defendant, Vander Ark's, office returned the call and informed Mrs. Martinet that there had been an appointment scheduled for Plaintiff, Mr. Martinet, to be seen at 8:30 a.m. Mrs. Martinet had not been previously informed of the alleged appointment. 5 19. However, on April 7, 2003, Plaintiff, Mr. Martinec, was seen by Defendant, Vander Ark, later that morning. At that time, Plaintiff, Mr. Martinec, was accompanied by Mrs. Martinec and she informed Defendant, Vander Ark, that Plaintiff, Mr. Martinec, was confused, had difficulty walking, was experiencing nasal drainage and that he had complained of neck pain and headache for three days and that this had been reported to his office. At the time of this visit, Plaintiff, Mr. Martinec, had to be assisted into the office. 20. On April 7, 2003, Defendant, Vander Ark, performed a physical examination, endoscopic examination and debridement of the ethmoid bowls. With regard to the complaints of confusion, neck pain and headache, Defendant, Vander Ark, did nothing except indicated to Mrs. Martinec that if' this persisted, she should take Plaintiff, Mr. Martinec, to the emergency room for evaluation and blood work. 21. Upon returning home after his visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, continued to experience confusion and weakness and Mrs. Martinec took him to the emergency room. 22. On April 7, 2003, Plaintiff, Mr. Martinec, was taken to the emergency room and admitted into the hospital with a diagnosis of: altered mental status, sepsis, urinary tract infection, and rule out meningitis. A CT scan of the brain showed that he had pneumocephalus and a lumbar puncture resulted in four samples containing blood. 6 23. Additional CT Scans were ordered and the Ct Scan of the sinuses revealed a hole in the cruciform plate posteriorly and the posterieor superior ethmoid region, approximately 4mm anterior to the sphenoid. Plaintiff, Mr. Martinec, was also noted to have increased air in his head and underwent ventriculostomy. 24. After being examined by the Emergency Room physician and the diagnosis of meningitis was made, Mrs. Martinec called Defendant, Vander Ark, and told him that Plaintiff, Mr. Martinec, had been diagnosed as having meningitis and that he was being admitted into the hospital. Defendant, Vander Ark, came to the Emergency Room but did not examine Plaintiff, Mr. Martinec. He did, however, indicate to Mrs. Martinec that "I must have nicked his sinus when I was cleaning it out. " 25. The conditions described in the previous paragraphs were all caused by the negligent performance of the sinus surgery by Defendant, Vander Ark. 26. While in the hospital, on April 11, 2003, Plaintiff, Mr. Martinec, underwent nasal endoscopy and repair of the cerebral spinal fluid leak with turbinate graft. 27. Plaintiff, Mr. Martinec, remained hospitalized until May 30, 2003, when he was transferred to a rehab facility for rehabilitation necessitated by the brain injury sustained as a result of Defendant, Vander Ark, and Defendant, ENT Group, negligent and substandard medical care. 7 28. Plaintiff, Mr. Martinec, after being discharged from the hospital, was transferred to the Mechanicsburg Rehab Hospital where he was hospitalized for the period May 30, 2003 through July 16, 2003. At the rehab facility, he was given physical therapy to learn to walk, speech therapy, occupational therapy, and had to be fed with a gastrostomy tube. He needed total rehabilitation. 29. Upon discharge from the rehab facility, Plaintiff, continued to receive care and treatment until August 27, 2003 at which time he had outpatient care at the rehab facility until October 30, 2003. 30. Upon his discharge on May 30, 2003, Plaintiff, Martinec, had the following discharge diagnosis: Meningitis, presumptively staph, following complex sinus surgery; Systemic Candidiasis; Methansone resistant staph aureus traceal aspirate; Pneumocephalus; Aspiration pneumonia, possible MRSA; Cerebrospinal fluid leak; placement of ventriculostomy to relieve air and act as a drain for possible stoppage of CSF leak. All of these conditions were legally caused by the negligent and substandard medical treatment that had been provided by Defendant, Vander Ark, and Defendant, ENT Group. 31. As a direct and proximate result of the negligent and substandard medical care and treatment provided by Defendant, Vander Ark, and Defendant, ENT Group, Plaintiff, Martinec, in addition to the injuries described above in Paragraph 27, suffered serious central nervous system infection resulting in frontal lobe dysfunction. This has left Plaintiff, Mr. Martinec, with significant mental and emotional 8 dysfunctions, including but not limited to: inattention, lack of motivation, sleepiness and lack of energy and interests. 32. Defendant, Vander Ark, and Defendant, ENT Group, provided substandard medical care and treatment to Plaintiff, Mr. Martinec, that was below the standard of care required for the appropriate treatment of Plaintiff, Mr. Martinec, resulting in the conditions described above. 33. As a direct and proximate result of the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, he has suffered permanent irreparable injury resulting in continued pain and discomfort, and restriction in activity. 34. Further, the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, increased the risk of harm to him. 35. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff to incur substantial medical expenses in the past, present and the future and claim is made therefore. 36. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to be permanently disabled. 9 37. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to incur other miscellaneous expenses in an effort to live as normal a life as possible under the circumstances and claim is made therefore. 38. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer a loss of income and a loss of earning capacity and claim is made therefore. 39. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer in the past, present and future great mental and physical pain and suffering, great inconvenience and an inability to carry out his normal daily activities, great embarrassment and humiliation and loss of life's pleasures and enjoyment, and claim is made therefore. COUNT I JOSEPH P. MARTINEC V WESLEY D. VANDER ARK, M.D. MEDICAL MALPRACTICE 40. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 36 above as if fully rewritten herein. 10 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligence, carelessness, gross negligence, and willful and wanton careless conduct of Defendant, Vander Ark, as follows: a. Failing to evaluate Plaintiff, Mr. Martinec's, condition and to provide proper treatment or involve a physician experienced with treating Plaintiffs condition; b. Failing to advise and prescribe to Plaintiff, Mr. Martinec, alternative conservative medical treatment for any sinus condition that he had that could have and should have been used prior to surgical treatment prescribed by Defendant, Vander Ark. c. Performing the sinus surgery without using medical treatment as a first option; d. Failing to warn Plaintiff, Mr. Martinec, of the complications that could occur as a result of the sinus surgery, including but not limited to puncturing the wall of the sinus allowing spinal fluid to leak, causing infection into the brain that would cause brain injury; e. Failing to take the necessary precautions to protect Plaintiff, Mr. Martinec, from infection that resulted in the brain injury; 11 f. Recommending surgery that was neither indicated or necessary; g. Performing sinus surgery that was not indicated and not necessary since Plaintiff, Mr. Martinec, was asymptomatic regarding his sinuses; h. Negligently recommending and performing the sinus surgery and follow up care without consulting a physician or other specialist and without prescribing antibiotic therapy to prevent infection following the procedure when he knew that doing so would increase the risk to Plaintiff, Mr. Martinec, and expose him to life threatening conditions and brain damage; i. Negligently recommending and performing the sinus surgery when he knew or should have known that it would increase the risk of injury to Plaintiff, Mr. Martinec; j. Failing to return telephone calls from Plaintiff, Mr. Martinec, following sinus surgery when neurological symptoms were being performed thereby increasing the risk that Plaintiff, Mr. Martinec, would be subjected to life threatening conditions and brain damage; 12 k. Failing to see and examine and provide definitive treatment to Plaintiff, Mr. Martinec, at a time when the life threatening condition and brain injury could have been prevented; 1. Negligently failing to promptly recognize the complications of the sinus surgery and not instituting prompt treatment thereby increasing the risk that Plaintiff, Mr. Martinet, would be exposed to life threatening conditions and brain damage; m. Negligently and carelessly setting in motion a series of events commenced with his negligent treatment of Plaintiff, Mr. Martinet, that resulted in exposing him to life threatening conditions and brain damage; n. Failing to properly care and treat Plaintiff, Mr. Martinec, following the negligent performance of the sinus surgery; o. Failing to properly care and treat Plaintiff, Mr. Martinec, for the obvious conditions that resulted from Defendant, Vander Ark, negligently puncturing the sinus cavity allowing infection to occur in the central nervous system by not providing proper care and treatment at a time when he knew or should have known that improper treatment would increase the risk of developing life threatening conditions and brain injury; 13 p. Failing to possess adequate knowledge, training and experience to treat Plaintiff, Mr. Martinec, once obvious nerurological symptoms developed as a result Defendant, Vander Ark, negligently puncturing the sinus cavity so that prompt and appropriate treatment could be administered at a time that the risk of injury could have been lessened; q. Failing to obtain appropriate consultation in a timely fashion prior to commencing treatment that was contraindicated for Plaintiff, Mr. Martinec's, condition and/or continue a course of treatment when it became apparent that such treatment was increasing the risk of life threatening conditions and Plaintiff's condition was deteriorating; r. Failing to or delaying the transfer of Plaintiff, Mr. Martinec, to the care of physicians who had sufficient knowledge, education and experience to diagnose and treat his condition; and s. Being otherwise careless and negligent as may be discovered during the discovery proceedings in this case. 42. Defendant, Vander Ark's, negligent. and careless actions in providing substandard care and treatment of Plaintiff, Mr. Martinec, resulted in his sustaining brain injury and conditions related to the brain injury. Defendant, Vander 14 Ark, is liable for all subsequent consequences of his negligent and careless sub-standard care and treatment that he provided to Plaintiff, Mr. Martinec. The negligent, and careless sub-standard care and treatment provided by Defendant, Vander Ark, is a substantial factor and legal cause of Plaintiff's injuries and damages as more fully set forth above; and/or increased the risk that Plaintiff, Mr. Martinec, would suffer such injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, Vander Ark, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT H JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY VICARIOUS LIABILITY 43. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 39 above as if fully rewritten herein. 44. At all times material hereto, Defendant, ENT Group, employed physicians, physicians' assistants, nurses and other professionals and paraprofessionals, including but not limited to Defendant, Vander Ark, to provide and/or assist in providing medical and surgical care and treatment to patients of Defendant, ENT Group. 45. At all times material hereto, Defendant, ENT Group, acted through its agents, ostensible agents, servants, and/or employees and is responsible for 15 all actions or inactions of its agents, ostensible agents, servants, and/or employees and is vicariously liable for all of their negligence and carelessness, including that of Defendant, Vander Ark, as described above. 46. Defendant, ENT Group, through its agents, ostensible agents, servants and employees was otherwise careless and negligent as may be determined after discovery is complete in this case. 47. As a result of the negligent and careless medical care and treatment rendered by the agents, ostensible agents, servants and employees of Defendant, ENT Group, said Defendant, ENT Group, is vicariously liable for all of Plaintiff's injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT HI JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY CORPORATE LIABILITY 48. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 44 above as if fully rewritten herein. 49. Defendant, ENT Group, owed an non-delegable duty to Plaintiff, Mr. Martinec, to insure his safety and well-being while he was receiving medical care 16 while being treated by its staff physicians, physicians' assistants, other paraprofessionals, agents, ostensible agents, servants and employees. 50. Defendant, ENT Group, failed to uphold and assur that its staff physicians, physicians' assistants and other paraprofessionals and staff and its agents, ostensible agents, servants and employees provided the appropriate standard of medical care and treatment to Plaintiff, Mr. Martinec, in the following respects: a. Failing to properly select and retain physicians and physicians' assistants and other staff to provide timely and adequate care and treatment to its patients treated by its office, including, Plaintiff, Mr. Martinec, as set forth herein above; b. Failing to properly the physicians, physicians assistants, and healther care professionals and paraprofessionals and other staff in providng medial care and treatment to its patients so as to assure the rendering of good, timely, appropriate and adequate medical care to its patients, including Plaintiff, Mr. Martinec; c. Failing to properly formulate, adopt and enforce adequate rules, policies and procedures to insure quality medical care for its patients, including Plaintiff, Mr. Martinec. 17 51. Defendant, ENT Group, through its administration, agents, ostensible agents, servants or employees, had actual or constructive notice of the negligent and careless medical treatment provided to Plaintiff, Mr. Martinec. 52. Defendant, ENT Group's, negligence and carelessness either caused or increased the risks that Plaintiff, Mr. Martinec, would suffer the premanten disabilities as a result of the failure to appropriately terat and care for his physical condition as previously set forth above. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. PETERS & WASILEFSKI By. ` Z ylX Cs 4 ?? h?sr Charles E. Wasilefski, Esqur Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Ext. 110 Attorneys for Plaintiff, Joseph P. Martinec Date: 18 VERIFICATION I hereby affirm that the following facts are correct: I, Joseph P. Martinec am the Plaintiff in the foregoing action and 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 the prosecution of the 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 upon 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. Section 4904 relating to unworn falsification to authorities. Joseph P. Martinec Date: aE t lo 5? CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a legal assistant in the law offices of Peters & Wasilefski, have thisa% day o l? 2005, served a true and correct copy of the foregoing COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum FRANCES M. ANGELOFF, IN THE COURT OF COMMON PLEAS OF Individually and as Administratrix CUMBERLAND COUNTY, PENNSYLVANIA Of the Estate of SELENA M. ANGELOFF, deceased : V. JACK L. ARMSTRONG, M.D., NO. 2004 - 4743 CIVIL TERM et al IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS JACK L. ARMSTRONG. M.D., JOAN M MONTELLO, M.D. AND MEDICAL ARTS. ALLERGY P.C. BEFORE HOFFER, P.J., OLER, GUIDO ORDER OF COURT AND NOW, this 13TH day of MAY, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. The Preliminary Objections to the claim for punitive damage and corporate negligence are GRANTED. The remaining preliminary objections are DENIED. Peter M. Villoxi, Esquire Paul D. Brandes, Esquire Marianne K. Currie, Esquire Leigh A.J. Ellis, Esquire Francis E. Marshall, Esquire Thomas M. Chairs, Esquire By Court, Edward E. Guido, J. in T ti-wity whweai, 1 Wu u= sti my hand and the seal M said Cunt at Cwiisle, Pa. i (his_ 7 3 7-1 V ..... Yz n nOCI. , A PffL Prathnndtrrv FRANCES M. ANGELOFF, Individually and as Administratrix Of the Estate of SELENA M. ANGELOFF, deceased : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JACK L. ARMSTRONG, M.D., et al NO. 2004 - 4743 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS JACK L. ARMSTRONG, M.D., JOAN M. MONTELLO, M.D. AND MEDICAL ARTS. ALLERGY ]?.C. BEFORE HOFFER, P.J., OLER, GU ]DO JJ. OPINION AND ORDER OF COURT Defendants have filed numerous preliminary objections. For the reasons hereinafter set forth we will 1) grant the objections to the claim for punitive damages and to the claim based upon the theory of corporate negligence and. 2) dismiss the preliminary objection to the claim for damages in the wrongful death action. The remaining preliminary objections will be dismissed without discussion. The tragic incident giving rise to this action occurred on August 14, 2003. Defendants had developed an anti-allergy regimen for plaintifl's decedent approximately 9 months earlier. Pursuant to that regimen she had received a series of allergy specific immunotherapy shots in progressively larger dosages. The shots were typically administered by nurse practitioner Defendant Jodi Johnson. On August 14, 2003, nurse practitioner Johnson administered a shot and left plaintiff's decedent sitting alone in the examination room. Within a few minutes she emerged with signs of an allergic reaction to the shot. The nurse immediately NO. 2004 - 4743 CIVi TERM administered drugs to counter the reaction. When plaintiff's decedent collapsed, 911 was called immediately. Attempts to resuscitate her at defendants' office were futile. She eventually died at Holy Spirit Hospital later that day. Punitive Damages Punitive damages may not be awarded for ordinary negligence, even gross negligence. Hutchison v. Luddy, 763 A.2d 826, 827 (Pa.Super. 2000). As the Superior Court has stated: It is well settled that punitive damages will lie only in cases of outrageous behavior, where defendant's egregious conduct shows either an evil motive or reckless indifference to the rights of others. Punitive damages are appropriate when an individual's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct. Slappo v. J's Development Associates, Inc. 791 A.2d 409, 417 (Pa.Super. 2002) quoting from Bannar v. Miller, 701 A.2d 232, 242 (Pa.Super. 1997). In the instant case plaintiffs' counsel contends that punitive damages are justified for the following reasons: • The defendants knew of decedent's history of uncontrolled asthma. • They knew she had previously experienced allergic reactions to the shots. • They left her alone in an examination room without observation. • The nurse practitioner administered the shot with no physician on the premises. • The resuscitative equipment on premises was not adequate for this type of emergency. NO. 2004 - 4743 CIVI_ i ERM The above allegations amount to no more than negligence or gross negligence. They do not evidence "an evil motive or reckless indifference to the rights of others". Therefore, the claim for punitive damages cannot stand. Corporate Negligence In Thompson v. Nason Hospital, 27 Pa. 330, 591 A.2d'703 (1991) the Pennsylvania Supreme Court adopted a "corporate negligence" theory of liability for hospitals. As the Supreme Court stated: Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party. 591 A.2d at 707. In the recent case of Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa. Super. 2004) the Superior Court refused to extend the theory of corporate negligence to physician practice groups. Consequently, we must sustain the demurrer to the claim of corporate negligence against Defendant Medical Arts Allergy, P.C.' Wrongful Death Damages In paragraph 92 of the complaint plaintiff avers the following: Plaintiff claims on behalf of the above statutory beneficiary(ies), all damages available under the Pennsylvania Wrongful Death Act, such as pecuniary losses, loss of society, tutelage, advice, assistance and counsel, funeral and/or burial expenses, as well as costs of administration. ' We note that plaintiffs have pled a valid claim against Defendant Medical Arts Allergy, P.C. based upon its vicarious liability for the acts of its employees. That claim is not affected by this decision. NO. 2004 - 4743 CfV. PERM The statutory beneficiary is identified as the decedent's nine year old son.2 Defendants object to the claim for "loss of society, advice and assistance and counsel."3 To the extent that the plaintiffs' claim includes the type of loss of comfort and society normally associated with a loss of consortium claim, defendant is correct. Pennsylvania does not recognize a claim for "loss of parental consortium". Machado v. Kunkel, 804 A.2d 1238, 1245. However, as the Machado court also stated: Under Pennsylvania law, a child can recover in a wrongful death action for the loss of companionship, comfort, society and guidance of a parent. This element of damages had also been described as "loss of guidance, tutelage, and moral upbringing." 804 A.2d at 1245 quoting from Walton v. Avco Corp., 383 Pa.Super. 518 557 A.2d 372, 388 (1989). (citations omitted). Therefore, defendants' objection must fail. ORDER OF COURT AND NOW, this 13TH day of MAY, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. The Preliminary Objections to the claim for punitive damage and corporate negligence are GRANTED. The remaining preliminary objections are DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Peter M. Villari, Esquire Paul D. Brandes, Esquire Marianne K. Currie, Esquire Leigh A.J. Ellis, Esquire Francis E. Marshall, Esquire Thomas M. Chairs, Esquire z Complaint, paragraph 5. 3 See Preliminary Objections, paragraph 44. CERTIFICATE OF SERVICE AND NOW, this 19th day of December, 2005, I, Aaron S. Jayman., Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record or parties involved by depositing, or causing to be deposited., same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 Dated: December 19, 2005 12 J ^Y ? c-? .T. -n -c,?; ,_;,? r?;? -, _- ;.., c ,; . ?: s.. , ., ,?1`'A ?. ?. ?? ?'? A40 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court, CAPTION OF CASE Joseph P. Martinec, (Plaintiff) VS. Wesley D. Vander Ark, M.D., and ENT Facial Plastic Surgery Group, P.C., (Defendant) No. 2005-1626, Civil Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs Complaint. 2. Identify counsel who will argue cases: (a) for plaintiff: Charles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1250 (b) for defendant Aaron S. Jayman, Esquire 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: First Available Date: i? 7 1 0? Signa Aaron S. Jayman Print your name Aaron S. Javman, Esquire Attorney for Defendant Wesley D. Vander Ark, M.D. & ENT Facial Plastic Surgery Group, P.C. i CERTIFICATE OF SERVICE I, Aaron S. Jayman, Esquire, hereby certify that I am this day serving a copy of the foregoing document 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, as follows: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 AL, Aar(on a an, Esquire h. n? VI CD `j fll?l C?j C7 r '1 r IT'i PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 17171 238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - L AW WESLEY D. VANDER ARK, M.D., : No. 05-1626 CIVIL -MM And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [717] 249-3166 800-990-9108 AVISO USTED HA SIDO DEMANDADIO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuesde la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defenses de, y objeciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acei6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado per el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABORGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [7171249-3166 800-990-9108 PETERS & WASILEFSKi By: Charles E. Wasilefski, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [7171238-7555 Attorneys for Plaintiffs, Joseph P. Martinee JOSEPH P. MARTINEC, Plaintiff, V. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants No. 2005 - 1626 CIVIL - MM CIVIL ACTION - LA W JURY TRIAL DEMANDED AMENDED COMPLAINT NOW COMES, Plaintiff, Joseph P. Martinec ("Mr. Martinec"), by and through his attorneys, Peters & Wasilefski, and files this Amended Complaint against Defendants, Wesley D. Vander Ark, M.D. ("Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), as follows: 1, Plaintiff, Mr. Martinec, is an adult individual who currently resides at 3517 Belair Road, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, Vander Ark, is an adult individual, and a licensed professional, who, currently has offices and a place of business at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. At all times relevant, Defendant, Vander Ark, was licensed to practice medicine in the Commonwealth of Pennsylvania. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant. 3. Defendant, ENT Group, is a corporation organized and registered in the Commonwealth of Pennsylvania for the purpose of providing medical services to patients with its office and principle place of business located at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. Defendant, ENT Group, is a professional corporation that has been organized for the purpose of providing and maintaining facilities and professional and/or paraprofessional personnel for the medical and surgical care and treatment of patients. Said Defendant, ENT Group, specifically provides medical and surgical services related to the ear, nose and throat. Defendant, ENT Group, employs other professional and/or paraprofessional staff to provide assistance to the physicians and physician's assistants in the medical care and treatment of patients and in the performance of surgery and post-surgical care. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant, as more specifically set forth in Counts II and III below. 4. Plaintiff, Mr. Martinec, was first seen at Defendant, ENT Group, by Defendant, Vander Ark, on or about February 10, 2003. with complaints of chronic hearing loss in his left ear. 5. On or about February 10, 2003, Defendant, Vander Ark, saw Plaintiff, Mr. Martinec, and performed a physical examination and audiogram and rendered the following assessment: Flaccid tympanic membrane with incus-stapedial joint erosion and stapedial pexy and mixed conductive hearing loss in the left ear. 2 He also has an effusion on that side and sinonasal polyps. 6. On or about February 10, 2005, Defendant, Vander Ark, recommended that Plaintiff, Mr. Martinec, have a CT scan of the sinuses and his left temporal bone to rule out cholesteatoma in that ear. 7. On or about February 18, 2003, the CT scan was performed and the following interpretation of the CT Scan was rendered: Sinuses Pansinusitis with probable sino-nasal polyposis. Coronal images only were performed through the paranasal sinuses, as the patient was unable to comply with the supine positioning of the axial. Mastoid Concern for cholesteatoma on the left, with the floor of the middle cranial fossa appearing disrupted at the level of the mastoid air cells. 8. On or about February 21, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, who prescribed a repeat CT scan of Plaintiff, Mr. Martinec's, temporal bone and endoscopic sinus surgery to attempt to improve the Eustachian tube function prior to performing surgery on the ear. 9. At no time did Defendant, Vander Ark, discuss with Plaintiff, Mr. Martinec, any alternative conservative treatment for the sinuses nor any of the risks or complications of the proposed sinus surgery. Plaintiff, Mr. Martinec, was never apprised nor given the option of conservative medical care for his sinuses prior to surgery nor that the proposed surgery may cause brain damage. 10. On or about April 1, 2003, Plaintiff, Mr. Martinec, underwent 3 surgery of the anterior and posterior ethmoidectomy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy. 11. Following surgery, Plaintiff, Mr. Martinec, was allowed to wake up fully extubated and taken to the recovery room. He was discharged home on Dyazide. 12. Following discharge, it was noted that Plaintiff, Mr. Martinec, was unable to urinate so he was taken to the Emergency Room where a Foley catheter was placed and he was discharged from the Emergency Room with the instruction to follow up with the urologist in one week. 13. On or about April 2, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, for a post operative follow up. Defendant, Vander Ark, examined Plaintiff, Mr. Martinec, and it was noted that the packs were in place and were removed, ethmoid bowls were clear and there was more crusting on the right side which was removed. Septa Gel was placed bilaterally and Plaintiff, Mr. Martinec, was told to follow up in one week. 14. On or about April 4, 2003, two days following the first post operative visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, developed neck pain, headache and significant nasal drainage. He was becoming confused and was not eating as well as normal. 15. As a result of the symptoms described above in Paragraph 14, Mrs. Martinec telephoned Defendant, Vander Ark's, office and alerted them to the 4 symptoms and complaints of Plaintiff, Mr. Martinec. Defendant, Vander Ark, did not see Plaintiff, Mr. Martinec, as a result of this call. Mrs. Martinec was merely told to give Plaintiff, Mr. Martinec, Tylenol for his headache. No further recommendations were made. 16. Plaintiff, Mr. Martinet's, condition continued to become worse and on or about April 5, 2003, Mrs. Martinec again called Defendant, Vander Ark's, office and spoke to the answering service and again told them about Plaintiff, Mr. Martinet's, worsening symptoms and further expressed that she believed that such symptoms and complaints were the result of the surgery. Neither Mrs. Martinec nor Plaintiff, Mr. Martinec, received a call back. Plaintiff, Mr. Martinec, spent April 5 and April 6, 2003 in bed with ice packs on his head and was taking Tylenol every 4-6 hours for his headache. 17. On or about April 6, 2003, Plaintiff, Mr. Martinet's, condition deteriorated to the point that he was unable to get out of bed. Neither Defendant, Vander Ark, nor anyone from his office returned the call on this day. 18. Finally, on April 7, 2003, Defendant, Vander Ark's, office returned the call and informed Mrs. Martinec that there had been an appointment scheduled for Plaintiff, Mr. Martinec, to be seen at 8:30 a.m. Mrs. Martinec had not been previously informed of the alleged appointment. 19. However, on April 7, 2003, Plaintiff, Mr. Martinec, was seen by Defendant, Vander Ark, later that morning. At that time, Plaintiff, Mr. Martinec, was 5 accompanied by Mrs. Martinec and she informed Defendant, Vander Ark, that Plaintiff, Mr. Martinec, was confused, had difficulty walking, was experiencing nasal drainage and that he had complained of neck pain and headache for three days and that this had been reported to his office. At the time of this visit, Plaintiff, Mr. Martinec, had to be assisted into the office. 20. On April 7, 2003, Defendant, Vander Ark, performed a physical examination, endoscopic examination and debridement of the ethmoid bowls. With regard to the complaints of confusion, neck pain and headache, Defendant, Vander Ark, did nothing except indicated to Mrs. Martinec that if this persisted, she should take Plaintiff, Mr. Martinec, to the emergency room for evaluation and blood work. 21. Upon returning home after his visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, continued to experience confusion and weakness and Mrs. Martinec took him to the emergency room. 22. On April 7, 2003, Plaintiff, Mr. Martinec, was taken to the emergency room and admitted into the hospital with a diagnosis of: altered mental status, sepsis, urinary tract infection, and rule out meningitis. A CT scan of the brain showed that he had pneumocephalus and a lumbar puncture resulted in four samples containing blood. 23. Additional CT Scans were ordered and the CT Scan of the sinuses revealed a hole in the cruciform plate posteriorly and the posterieor superior ethmoid region, approximately 4mm anterior to the sphenoid. Plaintiff, Mr. Martinec, 6 was also noted to have increased air in his head and underwent ventriculostomy. 24. After being examined by the Emergency Room physician and the diagnosis of meningitis was made, Mrs. Martinec called Defendant, Vander Ark, and told him that Plaintiff, Mr. Martinec, had been diagnosed as having meningitis and that he was being admitted into the hospital. Defendant, Vander Ark, came to the Emergency Room but did not examine Plaintiff, Mr. Martinec. He did, however, indicate to Mrs. Martinec that "I must have nicked his sinus when I was cleaning it out. " 25. The conditions described in the previous paragraphs were all caused by the negligent performance of the sinus surgery by Defendant, Vander Ark. 26. While in the hospital, on April 11, 2003, Plaintiff, Mr. Martinec, underwent nasal endoscopy and repair of the cerebral spinal fluid leak with turbinate graft. 27. Plaintiff, Mr. Martinec, remained hospitalized until May 30, 2003, when he was transferred to a rehab facility for rehabilitation necessitated by the brain injury sustained as a result of Defendant, Vander Ark, and Defendant, ENT Group, negligent and substandard medical care. 28. Plaintiff, Mr. Martinec, after being discharged from the hospital, was transferred to the Mechanicsburg Rehab Hospital where he was hospitalized for the period May 30, 2003 through July 16, 2003. At the rehab facility, he was given physical therapy to learn to walk, speech therapy, occupational therapy, and had to be 7 fed with a gastrostomy tube. He needed total rehabilitation. 29. Upon discharge from the rehab facility, Plaintiff, continued to receive care and treatment until August 27, 2003 at which time he had outpatient care at the rehab facility until October 30, 2003. 30. Upon his discharge on May 30, 2003, Plaintiff, Martinec, had the following discharge diagnosis: Meningitis, presumptively staph, following complex sinus surgery; Systemic Candidiasis; Methansone resistant staph aureus traceal aspirate; Pneumocephalus; Aspiration pneumonia, possible MRSA; Cerebrospinal fluid leak; placement of ventriculostomy to relieve air and act as a drain for possible stoppage of CSF leak. All of these conditions were legally caused by the negligent and substandard medical treatment that had been provided by Defendant, Vander Ark, and Defendant, ENT Group. 31. As a direct and proximate result of the negligent and substandard medical care and treatment provided by Defendant, Vander Ark, and Defendant, ENT Group, Plaintiff, Martinec, in addition to the injuries described above in Paragraph 27, suffered serious central nervous system infection resulting in frontal lobe dysfunction. This has left Plaintiff, Mr. Martinec, with significant mental and emotional dysfunctions, including but not limited to: inattention, lack of motivation, sleepiness and lack of energy and interests. 32. Defendant, Vander Ark, and Defendant, ENT Group, provided substandard medical care and treatment to Plaintiff, Mr. Martinec, that was below the 8 standard of care required for the appropriate treatment of Plaintiff, Mr. Martinec, resulting in the conditions described above. 33. As a direct and proximate result of the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, he has suffered permanent irreparable injury resulting in continued pain and discomfort, and restriction in activity. 34. Further, the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, increased the risk of harm to him. 35. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff to incur substantial medical expenses in the past, present and the future and claim is made therefore. 36_ The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to be permanently disabled. 37. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to incur other miscellaneous expenses in an effort to live as normal a life as possible under the 9 circumstances and claim is made therefore. 38. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer a loss of income and a loss of earning capacity and claim is made therefore. 39. The careless and negligent mariner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer in the past, present and future great mental and physical pain and suffering, great inconvenience and an inability to carry out his normal daily activities, great embarrassment and humiliation and loss of life's pleasures and enjoyment, and claim is made therefore. COUNT I JOSEPH P MARTINEC V WESLEY D. VANDER ARK. M.D. MEDICAL MALPRACTICE 40. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 36 above as if fully rewritten herein. 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligence, carelessness, gross negligence, and willful and wanton careless conduct of Defendant, Vander Ark, as follows: 10 a. Failing to evaluate Plaintiff, Mr. Martinec's, condition and to provide proper treatment or involve a physician experienced with treating Plaintiff's condition; b. Failing to advise and prescribe to Plaintiff, Mr. Martinec, alternative conservative medical treatment for any sinus condition that he had that could have and should have been used prior to surgical treatment prescribed by Defendant, Vander Ark. c. Performing the sinus surgery without using medical treatment as a first option; d. Failing to warn Plaintiff, Mr. Martinec, of the complications that could occur as a result of the sinus surgery, including but not limited to puncturing the wall of the sinus allowing spinal fluid to leak, causing infection into the brain that would cause brain injury; e. Failing to take the necessary precautions to protect Plaintiff, Mr. Martinec, from infection that resulted in the brain injury; f. Recommending surgery that was neither indicated or necessary; g. Performing sinus surgery that was not indicated and not necessary since Plaintiff, Mr. Martinec, was asymptomatic 11 regarding his sinuses; It. Negligently recommending and performing the sinus surgery and follow up care without consulting a physician or other specialist and without prescribing antibiotic therapy to prevent infection following the procedure when he knew that doing so would increase the risk to Plaintiff, Mr. Martinec, and expose him to life threatening conditions and brain damage; i. Negligently recommending and performing the sinus surgery when he knew or should have known that it would increase the risk of injury to Plaintiff, Mr. Martinec; j. Failing to return telephone calls from Plaintiff, Mr. Martinec, following sinus surgery when neurological symptoms were being performed thereby increasing the risk that Plaintiff, Mr. Martinec, would be subjected to life threatening conditions and brain damage; k. Failing to see and examine and provide definitive treatment to Plaintiff, Mr. Martinec, at a time when the life threatening condition and brain injury could have been prevented; 1. Negligently failing to promptly recognize the complications of the sinus surgery and not instituting prompt treatment thereby increasing the risk that Plaintiff, Mr. Martinec, would be 12 exposed to life threatening conditions and brain damage; m. Negligently and carelessly setting in motion a series of events commenced with his negligent treatment of Plaintiff, Mr. Martinec, that resulted in exposing him to life threatening conditions and brain damage; n. Failing to properly care and treat Plaintiff, Mr. Martinec, following the negligent performance of the sinus surgery; o. Failing to properly care and treat Plaintiff, Mr. Martinec, for the obvious conditions that resulted from Defendant, Vander Ark, negligently puncturing the sinus cavity allowing infection to occur in the central nervous system by not providing proper care and treatment at a time when he knew or should have known that improper treatment would increase the risk of developing life threatening conditions and brain injury; p. Failing to possess adequate knowledge, training and experience to treat Plaintiff, Mr. Martinec, once obvious neurological symptoms developed as a result Defendant, Vander Ark, negligently puncturing the sinus cavity so that prompt and appropriate treatment could be administered at a time that the risk of injury could have been lessened; 13 q. Failing to obtain appropriate consultation in a timely fashion prior to commencing treatment that was contraindicated for Plaintiff, Mr. Martinec's, condition and/or continue a course of treatment when it became apparent that such treatment was increasing the risk of life threatening conditions and Plaintiff's condition was deteriorating; r. Failing to or delaying the transfer of Plaintiff, Mr. Martinec, to the care of physicians who had sufficient knowledge, education and experience to diagnose and treat his condition; and s. Being otherwise careless and negligent as may be discovered during the discovery proceedings in this case. 42. Defendant, Vander Ark's, negligent and careless actions in providing substandard care and treatment of Plaintiff, Mr. Martinec, resulted in his sustaining brain injury and conditions related to the brain injury. Defendant, Vander Ark, is liable for all subsequent consequences of his negligent and careless sub-standard care and treatment that he provided to Plaintiff, Mr. Martinec. The negligent and careless sub-standard care and treatment provided by Defendant, Vander Ark, is a substantial factor and legal cause of Plaintiff's injuries and damages as more fully set forth above; and/or increased the risk that Plaintiff, Mr. Martinec, would suffer such injuries and damages. 14 43. Additionally, Plaintiff, Mr. Martinec, was not given the opportunity to fully assess the risks involved in the procedure and therefore did not give a fully informed consent to the procedure resulting in Defendant, Vander Ark, committing a battery upon the person of Plaintiff, Mr. Martinec, causing him severe injury for which Defendant, Vander Ark, is liable. Plaintiff, Mr. Martinec, was injured and damaged as more fully set forth in the previous paragraphs and claim is made therefore. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, Vander Ark, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT H JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY VICARIOUS LIABILITY 44. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 39 above as if fully rewritten herein. 45. At all times material hereto, Defendant, ENT Group, employed physicians, physicians' assistants, nurses and other professionals and paraprofessionals, including but not limited to Defendant, Vander Ark, and the employees and agents related to Defendant, ENT Group, call service, and the nurses and clerical employees responsible for the communications with Plaintiff, Mr. Martinec, and/or his wife 15 regarding the medical and surgical care and treatment described above, to provide and/or assist in providing medical and surgical care and treatment to patients of Defendant, ENT Group. Specific names of the individuals involved are not now known but will be identified through discovery and further investigation. 46. At all times material hereto, Defendant, ENT Group, acted through its agents, ostensible agents, servants, and/or employees, as described above in Paragraph 45, and is responsible for all actions or inactions of said agents, ostensible agents, servants, and/or employees and is vicariously liable for all of their negligence and carelessness, including that of Defendant, Vander Ark, as described above. 47. Defendant, ENT Group, through its agents, ostensible agents, servants and employees, as described above in Paragraph 45, was otherwise careless and negligent as may be determined after discovery is complete in this case. 48. As a result of the negligent and careless medical care and treatment rendered by the agents, ostensible agents, servants and employees of Defendant, ENT Group, as described above in Paragraph 45, said Defendant, ENT Group, is vicariously liable for all of Plaintiff's injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. 16 COUNT III JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY CORPORATE LIABILITY 49. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 43 above as if fully rewritten herein. 50. Defendant, ENT Group, owed a non-delegable duty to Plaintiff, Mr. Martinec, to insure his safety and well-being while he was receiving medical care while being treated by its staff physicians, physicians' assistants, other paraprofessionals, agents, ostensible agents, servants and employees, including but not limited to Defendant, Vander Ark, and the employees and agents related to Defendant, ENT Group, call service, and the nurses and clerical employees responsible for the communications with Plaintiff, Mr. Martinec, and/or his wife regarding the medical and surgical care and treatment described above. 51. Defendant, ENT Group, failed to uphold and assure that its staff physicians, physicians' assistants and other paraprofessionals and staff and its agents, ostensible agents, servants and employees, as described above in Paragraph 50, provided the appropriate standard of medical care and treatment to Plaintiff, Mr. Martinec, in the following respects: a. Failing to properly select and retain physicians and physicians' assistants and other staff to provide timely and adequately provide care and treatment to its patients treated 17 by its office, including, Plaintiff, Mr. Martinec, as set forth herein above; b. Failing to properly oversee the physicians, physicians assistants, and health care professionals and paraprofessionals and other staff in providing medical care and treatment to its patients so as to assure the rendering of good, timely, appropriate and adequate medical care to its patients, including Plaintiff, Mr. Martinec; c. Failing to properly formulate, adopt and enforce adequate rules, policies and procedures to insure quality medical care for its patients, including Plaintiff, Mr. Martinec. 52. Defendant, ENT Group, through its administration, agents, ostensible agents, servants or employees, as described above in Paragraph 50, had actual or constructive notice of the negligent and careless medical treatment provided to Plaintiff. Mr. Martinec. 53. Defendant, ENT Group's, negligence and carelessness either caused or increased the risks that Plaintiff, Mr. Martinec, would suffer the permanent disabilities as a result of the failure to appropriately treat and care for his physical condition as previously set forth above. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars 18 ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. PETERS & WASILEFSKI By. CSi? Charles E. Wasilefski. Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 (717] 238-7555 Ext. 110 Attorneys for Plaintiff, Joseph P. Martinec Date: 19 VERIFICATION I hereby affirm that the following facts are correct: I, Joseph P. Martinec am the Plaintiff in the foregoing action and 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 the prosecution of the 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 upon 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. Section 4904 relating to unsworn falsification to authorities. P Joseph P. artinec Date :.2k' CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a legal assistant in the law offices of Peters & Wasilefski, have this a0 day of?? - 2006, served a true and correct copy of the foregoing AMENDED COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum - -, -? -? = ?, DICHIE, MCCAMEY & CHILCOTE, P.C BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY I.D. NO. 78565 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803 (Fax) JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants ATTORNEY FOR: DEFENDANTS WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PRAECIPE TO STRIKE FROM ARGUMENT COURT LIST TO THE PROTHONOTARY: Kindly strike Defendants' Preliminary Objections to Plaintiffs Complaint from Argument Court on February 15, 2006. Plaintiff filed an Amended Complaint on January 23, 2006. Defendants will file Preliminary Objections to Plaintiffs Amended Complaint and list these Preliminary Objections for disposition during the next available Argument Court. Respectfully submitted, DICHIE, Date: 1 /30/©/o P.C. By: v?-- Aaron S. J ym re Supreme ourt T'481 5651 1200 Camp 1 Bypass Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, WesleyD. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P. C. CERTIFICATE OF SERVICE AND NOW, this 30 0? day of January, 2006, I, Aaron S. Jayman, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record or parties involved by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 Aaron S. a an, As4uire -+n -T -n . trt r.- ID C aJ - ? w DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY I.D. NO. 78565 BY: AARON S. JAYMAN, ESQUIRE ATTORNEY I.D. NO. 85651 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803(Fax) ATTORNEY FOR: DEFENDANTS WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C. JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, come Defendants, Wesley D. Vander Ark, M.D. ("Dr. Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), by and through their counsel, Dickie, McCamey & Chilcote, P.C., and preliminarily object to Plaintiff's Amended Complaint, as follows: 1. Plaintiff, Joseph Martinec, commended this action by way of Writ of Summons filed on March 29, 2005. 2. Plaintiff's Complaint was filed on November 30, 2005. On December 19, 2005, Defendants timely preliminary objected to Plaintiffs original Complaint on the following five (5) grounds: a. Failure to comply with Pa.R.C.P. 1042.2(a); b. Improper general allegations of negligence because Plaintiff failed to specifically identify which agents, ostensible agents, servants, and employees were negligent and specify in what manner each was allegedly negligent; C. Demurrer to corporate negligence claim because that theory has been specifically rejected by the Pennsylvania Superior Court relative to physician practice groups as set forth in Sutherland v. Monogahela Valley Hospital, 856 A.2d 55 (Pa.Super. 2004); d. Failure of paragraphs 41(m), 41(n) and 41(s) to comply with the factual specificity requirement of Pa.R.C.P. 1019(a) as interpreted by Connor v. Allegheny General Hospital, 461 a.2d 600 (Pa. 1983); and C. Demurrer to allegations of willful and wanton conduct for failure to plead any underlying facts sufficient to sustain such claims. 4. On January 23, 2006, Plaintiff filed an Amended Complaint. A copy of the Amended Complaint is attached hereto as Exhibit "A." 5. Plaintiff s Amended Complaint is still deficient in many respects. 6. The underlying basis of Plaintiff s Amended Complaint involves the alleged negligent recommendation and performance of sinus surgery resulting in alleged frontal lobe symptoms with memory loss and cognitive defects. The averments specific to Dr. Vander Ark are set forth in Count I of Plaintiff's Amended Complaint. The averments specific to ENT Group are set forth in Counts II and III of Plaintiffs Amended Complaint. I. THE DEFENDANTS PRELIMINARILY OBJECT TO PLAINTIFF'S AMENDED COMPLAINT PURSUANT PA.R.C.P. 1028(a)(4) AS BEING LEGALLY INSUFFICIENT IN THAT THE PLAINTIFF ALLEGES A THEORY OF CORPORATE NEGLIGENCE AGAINST THE ENT GROUP WHICH IS NOT RECOGNIZED BY LAW 9. The Defendants hereby incorporate by reference Paragraphs 1 though 8 as if herein set forth at length. 10. In Count III of his Amended Complaint, the Plaintiff still pleads a claim entitled - Corporate Liability - against ENT Group 11. Corporate negligence involves the direct negligence of an entity, as opposed to the vicarious liability for the acts of employees. Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997). 12. In Count III of the Amended Complaint, the Plaintiff still avers direct corporate negligence against ENT Group as follows: (a) Failing to properly select and retain physicians and physicians' assistants and other staff to provide timely and adequate care and treatment to its patients treated by its office, including, Plaintiff, Mr. Martinec, as set forth herein above; (b) Failing to properly oversee the physicians, physicians' assistants, and health care professionals and paraprofessionals and other staff in providing medical care and treatment to its patients so as to assure the rendering of good, timely, appropriate and adequate medical care to its patients, including, Plaintiff, Mr. Martinec: (c) Failing to properly formulate, adopt and enforce adequate rules, policies and procedures to insure quality medical care for its patients, including, Plaintiff, Mr. Martinec. 13. Accordingly, in the aforesaid Count, the Plaintiff alleges liability on the part of ENT Group under a theory of corporate negligence. 14. The theory of corporate negligence has been extended to apply to a hospital, which, according to this theory of liability, owes the following duty to its patients: 3 a. A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; b. A duty to select and retain only competent physicians; C. A duty to oversee all persons who practice medicine within its walls as to patient care; and d. A duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991). 15. Under the theory of corporate negligence, a hospital is liable if it fails to uphold the proper standard of care owed to its patients. Moser v. Heistand, 601 A.2d 1322, 1325 (Pa. 1996). 16. The Pennsylvania Supreme Court, however, has recently specifically declined to extend the corporate negligence principles of Thompson to a physician practice group. Sutherland v. Monogahela Valley Hospital, 856 A.2d 55 (Pa. Super. 2004). 17. In rejecting the extension of the theory of corporate negligence to physician offices, the Superior Court stated as follows: "We note that the policy considerations underlying the Pennsylvania Supreme Court's creation of the theory of corporate liability for hospitals are not present in the situation of a physicians' office. In Thompson, the Supreme Court recognized that `[t]he corporate hospital of today has assumed the role of a comprehensive health center with responsibility for arranging and coordinating the total healthcare of its patients.' Thompson, supra at 706. The same cannot be said for a physicians' practice group." Sutherland, supra at 61-62. 18. Moreover, in Angeloff v. Armstrong, et al., Cumberland County Docket No. 2004-4743, a panel consisting of Judge Hoffer, Judge Oler and Judge Guido, sustained a defendant physician group's preliminary objections and refused to extend the theory of corporate 4 negligence to a physician practice group based on the Superior Court's holding in Sutherland. A copy of the opinion and order are attached hereto as Exhibit "B." 19. The question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Warner v. Plater v. Zvverk, 799 A.2d 776 (Pa. Super. 2002). 20. At present, no recovery under a theory of corporate negligence is possible with respect to ENT Group because that theory has been specifically rejected by the Pennsylvania Superior Court relative to a physician practice groups. Sutherland, supra. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court strike Plaintiffs corporate negligence claim against Facial Plastic Surgery Group, P.C., from Plaintiffs Amended Complaint for failing to state a cause of action upon which relief may be granted. H. THE DEFENDANTS PRELIMINARILY OBJECT TO THE ALLEGATIONS ASSERTED IN PARAGRAPHS 41(m), 41(n) and 41(s) OF PLAINTIFF'S AMENDED COMPLAINT FOR FAILURE TO COMPLY WITH THE FACTUAL SPECIFICITY REQUIREMENT OF PA.R.C.P. 1019(a) AS INTERPRETED BY CONNOR Y. ALLEGHENY GENERAL HOSPITAL. 461 A.2D 600 (Pa. 1983). 21. The Defendants hereby incorporate by reference Paragraphs 1 though 20 as if herein set forth at length. 22. The particular language in Plaintiffs Amended Complaint at issue is contained in paragraphs 41(m), 41(n) and 41(s) and reads as follows: 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligence, carelessness, gross negligence and willful and wanton careless conduct of Defendant, Vander Ark, as follows: (m) Negligently and carelessly setting in motion a series of events commenced with his negligent treatment of 5 Plaintiff, Mr. Martinec, that resulted in exposing him to life threatening conditions and brain damage; (n) Failing to properly care and treat Plaintiff, Mr. Martinec, following the negligent performance of the sinus surgery; (s) Being otherwise careless and negligent as may be discovered during the discovery proceedings in this case. 23. Pa.R.C.P. 1019(a) requires a plaintiff to state in the complaint, in concise and summary form, the material facts upon which a cause of action is based. The purpose of this rule is to require the pleader to disclose in the complaint the specific facts upon which the plaintiffs cause of action is based so that plaintiffs proof may be confined to such actions, thus enabling the defendant to reasonably prepare his defense. Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498 (1974). 24. The Supreme Court of Pennsylvania in the case of Connor v. Allegheny General Hospital, supra., attached great significance to the use of nebulous boilerplate language in the provisions of pleadings. The Connor decision places the onus on the defendant to preliminarily object to such "catch all" language in order to properly prevent a Plaintiff from introducing new theories of negligence and new causes of action beyond the statute of limitations. Connor, 229 Pa. at 310, n.3, 461 A.2d at 603, n.3. 25. The above-quoted averments do not contain the "concise and material facts" required by Pa.R.C.P. 1019 or the factual specificity required by Pa.R.C.P. No. 1028(a)(3). 26. Plaintiff uses such broad and generic terminology within paragraphs 41(m), 41(n) and 41(s) from which any number of interpretations could be derived, which would allow Plaintiff to again amend his Complaint to add new allegations of negligence at a later date, well after the statute of limitations has run. 6 27. Defendants should not be required to anticipate every potential theory which Plaintiff might subsequently contend is within the scope of the generic allegations of the Amended Complaint. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court strike paragraphs 41(m), 41(n) and 41(s) from the Amended Complaint as stated, or in the alternative, require Plaintiff to file a more specific pleading with respect to the aforesaid paragraphs pursuant to Pa.R.Civ.P. 1028(a)(3). III. THE DEFENDANTS PRELIMINARILY OBJECT TO THE ALLEGATIONS OF WILLFUL AND WANTON CARELESS CONDUCT ON THE PART OF DR. VANDER ARK AND ANY EXPRESSED OR IMPLIED CLAIM FOR PUNITIVE DAMAGES FOR FAILURE TO PLEAD ANY UNDERLYING FACTS SUFFICIENT TO SUSTAIN SUCH A CLAIM. 28. The Defendants hereby incorporate by reference Paragraphs 1 though 27 as if herein set forth at length. 29. Without pleading any underlying facts to support such claims, Plaintiff's Amended Complaint again baldly asserts at paragraph 41 that the acts of Dr. Vander Ark were grossly negligent as well as willful and wanton. See ¶41, Exhibit "A." 30. Although a separate count for punitive damages is not asserted, the language contained in paragraph 41 is indicative of, or may be construed to represent, a claim for punitive damages against Dr. Vander Ark. 31. Under Pennsylvania law, punitive damages may only be awarded for conduct that is the result of healthcare provider's willful or wanton or reckless indifference to the rights of others. 40 P.S. §1303.505 (2002). As a result, punitive damages are only available in extremely limited circumstances in Pennsylvania. 7 32. Punitive damages may not be awarded for ordinary negligence, even gross negligence. Hutchison v. Luddy, 763 A.2d 826, 827 (Pa.Super. 2000). 33. As the Superior Court has stated: It is well settled that punitive damages will lie only in cases of outrageous behavior, where defendant's egregious conduct shows either an evil motive or reckless indifference to the rights of others. Punitive damages are appropriate when an individual's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct. Slappo v. J's Development Associates, Inc. 791 A.2d 409, 417 (Pa.Super. 2002) quoting from Bannar v. Miller, 701 A.2d 232, 242 (Pa.Super. 1997). 34. Also, as is this case here, where a complaint contains nothing but conclusory statements that the conduct of the defendants was willful, wanton, or reckless, without allegations of fact to support the same, the plaintiffs claim for punitive damages is properly dismissed. Facts supporting a claim of outrageous conduct must be found in a plaintiffs complaint. Smith v. Brown, 423 A.2d 743, 745 (Pa.Super. 1980). 35. This Honorable Court has consistently dismissed punitive damage claims in medical malpractice actions for failure to plead material facts to support the proposition that a healthcare provider acted wilfully, wantonly, outrageously, with an evil motive or with reckless or conscious indifference to a plaintiffs well-being. Angeloff v. Armstrong, No. 2004-4743 (Ct. Com. Pl. Cumberland County, May 13, 2005); Garrity v. Macaluso, No. 01-1300 Civil Term, (Ct. Com. Pl. Cumberland County, July 31, 2001), Dorsey v. Pinker, No. 98-3107 Civil Term, (Ct. Com. Pl. Cumberland County, August 4, 1999) Townsend-Ensor v. Entwistle, No. 98-5606 Civil Term, (Ct. Com. Pl. Cumberland County, June 17, 1999) Gordon v. Taggart, No. 97-6684 Civil Term, (Ct. Com. Pl. Cumberland County, July 2, 1998). 8 36. In the instant matter, Plaintiff has not plead material facts to support allegations of recklessness or a claim for punitive damages. Rather, the underlying facts of Plaintiff's Amended Complaint involve the alleged negligent recommendation and performance of sinus surgery resulting in alleged frontal lobe symptoms with memory loss and cognitive defects. There are no facts plead to support claims of reckless, wilful or wanton behavior on the part of Dr. Vander Ark with respect to his care and treatment of Plaintiff. 37. As such, it is submitted that there is absolutely no basis for a claims of punitive damages against the Dr. Vander Ark and such claim should be dismissed as a matter of law at this juncture. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., respectfully request that this Honorable Court strike all references to willful or wanton conduct as well as any expressed or implied claim for punitive damages. Respectfully submitted, Date: Z 1 ? Qb DICKIE, MC,,C,J4"EY & CHILCOTE, P.C. By: hall, Jr., Esquire I. D. #27594 Aaron S. Jayman, Esquire Supreme Court I.D. #85651 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, WesleyD. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P.C. ?? ? ???? .ro C 10 5? PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [7171238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff : IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, : PENNSYLVANIA VS. : CIVIL ACTION - L AW WESLEY D. VANDER ARK, M.D., : No. 05-1626 CIVIL -MM And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [717] 249-3166 800-990-9108 AVISO USTED HA SIDO DEMANDADIO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dfas despu6sde la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de on abogado una comparencencia escrita y radicando en la Corte por escrito sus defenses de, y objeciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede set dictado en contra soya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABORGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [717] 249-3166 800-990-9108 PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Attorneys for Plaintiffs, Joseph P. Martinec JOSEPH P. MARTINEC, Plaintiff, V. WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 - 1626 CIVIL - MM CIVIL ACTION - LA W JURY TRIAL DEMANDED AMENDED COMPLAINT NOW COMES, Plaintiff, Joseph P. Martinec ("Mr. Martinec"), by and through his attorneys, Peters & Wasilefski, and files this Amended Complaint against Defendants, Wesley D. Vander Ark, M.D. ("Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), as follows: 1, Plaintiff, Mr. Martinec, is an adult individual who currently resides at 3517 Belair Road, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, Vander Ark, is an adult individual, and a licensed professional, who, currently has offices and a place of business at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. At all times relevant, Defendant, Vander Ark, was licensed to practice medicine in the Commonwealth of Pennsylvania. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant. 3. Defendant, ENT Group, is a corporation organized and registered in the Commonwealth of Pennsylvania for the purpose of providing medical services to patients with its office and principle place of business located at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. Defendant, ENT Group, is a professional corporation that has been organized for the purpose of providing and maintaining facilities and professional and/or paraprofessional personnel for the medical and surgical care and treatment of patients. Said Defendant, ENT Group, specifically provides medical and surgical services related to the ear, nose and throat. Defendant, ENT Group, employs other professional and/or paraprofessional staff to provide assistance to the physicians and physician's assistants in the medical care and treatment of patients and in the performance of surgery and post-surgical care. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant, as more specifically set forth in Counts II and III below. 4. Plaintiff, Mr. Martinec, was first seen at Defendant, ENT Group, by Defendant, Vander Ark, on or about February 10, 2003. with complaints of chronic hearing loss in his left ear. 5. On or about February 10, 2003, Defendant, Vander Ark, saw Plaintiff, Mr. Martinec, and performed a physical examination and audiogram and rendered the following assessment: Flaccid tympanic membrane with incus-stapedial joint erosion and stapedial pexy and mixed conductive hearing loss in the left ear. 2 He also has an effusion on that side and sinonasal polyps. 6. On or about February 10, 2005, Defendant, Vander Ark, recommended that Plaintiff, Mr. Martinec, have a CT scan of the sinuses and his left temporal bone to rule out cholesteatoma in that ear. 7. On or about February 18, 2003, the CT scan was performed and the following interpretation of the CT Scan was rendered: Sinuses Pansinusitis with probable sino-nasal polyposis. Coronal images only were performed through the paranasal sinuses, as the patient was unable to comply with the supine positioning of the axial. Mastoid Concern for cholesteatoma on the left, with the floor of the middle cranial fossa appearing disrupted at the level of the mastoid air cells. 8. On or about February 21, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, who prescribed a repeat CT scan of Plaintiff, Mr. Martinec's, temporal bone and endoscopic sinus surgery to attempt to improve the Eustachian tube function prior to performing surgery on the ear. 9. At no time did Defendant, Vander Ark, discuss with Plaintiff, Mr. Martinec, any alternative conservative treatment for the sinuses nor any of the risks or complications of the proposed sinus surgery. Plaintiff, Mr. Martinec, was never apprised nor given the option of conservative medical care for his sinuses prior to surgery nor that the proposed surgery may cause brain damage. 10. On or about April 1, 2003, Plaintiff, Mr. Martinec, underwent 3 surgery of the anterior and posterior ethmoidectomy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy. 11. Following surgery, Plaintiff, Mr. Martinec, was allowed to wake up fully extubated and taken to the recovery room. He was discharged home on Dyazide. 12. Following discharge, it was noted that Plaintiff, Mr. Martinec, was unable to urinate so he was taken to the Emergency Room where a Foley catheter was placed and he was discharged from the Emergency Room with the instruction to follow up with the urologist in one week. 13. On or about April 2, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, for a post operative follow up. Defendant., Vander Ark, examined Plaintiff, Mr. Martinec, and it was noted that the packs were in place and were removed, ethmoid bowls were clear and there was more crusting on the right side which was removed. Sepra Gel was placed bilaterally and Plaintiff, Mr. Martinec, was told to follow up in one week. 14. On or about April 4, 2003, two days following the first post operative visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, developed neck pain, headache and significant nasal drainage. He was becoming confused and was not eating as well as normal. 15. As a result of the symptoms described above in Paragraph 14, Mrs. Martinec telephoned Defendant, Vander Ark's, office and alerted them to the 4 symptoms and complaints of Plaintiff, Mr. Martinec. Defendant, Vander Ark, did not see Plaintiff, Mr. Martinec, as a result of this call. Mrs. Martinec was merely told to give Plaintiff, Mr. Martinec, Tylenol for his headache. No further recommendations were made. 16. Plaintiff, Mr. Martinec's, condition continued to become worse and on or about April 5, 2003, Mrs. Martinec again called Defendant, Vander Ark's, office and spoke to the answering service and again told them about Plaintiff, Mr. Martinec's, worsening symptoms and further expressed that she believed that such symptoms and complaints were the result of the surgery. Neither Mrs. Martinec nor Plaintiff, Mr. Martinec, received a call back. Plaintiff, Mr. Martinec, spent April 5 and April 6, 2003 in bed with ice packs on his head and was taking Tylenol every 4-6 hours for his headache. 17. On or about April 6, 2003, Plaintiff, Mr. Martinec's, condition deteriorated to the point that he was unable to get out of bed. Neither Defendant, Vander Ark, nor anyone from his office returned the call on this day. 18. Finally, on April 7, 2003, Defendant, Vander Ark's, office returned the call and informed Mrs. Martinec that there had been an appointment scheduled for Plaintiff, Mr. Martinec, to be seen at 8:30 a.m. Mrs. Martinec had not been previously informed of the alleged appointment. 19. However, on April 7, 2003, Plaintiff, Mr. Martinec, was seen by Defendant, Vander Ark, later that morning. At that time, Plaintiff, Mr. Martinec, was 5 accompanied by Mrs. Martinec and she informed Defendant, Vander Ark, that Plaintiff, Mr. Martinec, was confused, had difficulty walking, was experiencing nasal drainage and that he had complained of neck pain and headache for three days and that this had been reported to his office. At the time of this visit, Plaintiff, Mr. Martinec, had to be assisted into the office. 20. On April 7, 2003, Defendant, Vander Ark, performed a physical examination, endoscopic examination and debridement of the ethmoid bowls. With regard to the complaints of confusion, neck pain and headache, Defendant, Vander Ark, did nothing except indicated to Mrs. Martinec that if this persisted, she should take Plaintiff, Mr. Martinec, to the emergency room for evaluation and blood work. 21. Upon returning home after his visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, continued to experience confusion and weakness and Mrs. Martinec took him to the emergency room. 22. On April 7, 2003, Plaintiff, Mr. Martinec, was taken to the emergency room and admitted into the hospital with a diagnosis of: altered mental status, sepsis, urinary tract infection, and rule out meningitis. A CT scan of the brain showed that he had pneumocephalus and a lumbar puncture resulted in four samples containing blood. 23. Additional CT Scans were ordered and the CT Scan of the sinuses revealed a hole in the cruciform plate posteriorly and the posterieor superior ethmoid region, approximately 4mm anterior to the sphenoid. Plaintiff, Mr. Martinec, 6 was also noted to have increased air in his head and underwent ventriculostomy. 24. After being examined by the Emergency Room physician and the diagnosis of meningitis was made, Mrs. Martinec called Defendant, Vander Ark, and told him that Plaintiff, Mr. Martinec, had been diagnosed as having meningitis and that he was being admitted into the hospital. Defendant, Vander Ark, came to the Emergency Room but did not examine Plaintiff, Mr. Martinec. He did, however, indicate to Mrs. Martinec that "I must have nicked his sinus when I was cleaning it out. " 25. The conditions described in the previous paragraphs were all caused by the negligent performance of the sinus surgery by Defendant, Vander Ark. 26. While in the hospital, on April 11, 2003, Plaintiff, Mr. Martinec, underwent nasal endoscopy and repair of the cerebral spinal fluid leak with turbinate graft. 27. Plaintiff, Mr. Martinec, remained hospitalized until May 30, 2003, when he was transferred to a rehab facility for rehabilitation necessitated by the brain injury sustained as a result of Defendant, Vander Ark, and Defendant, ENT Group, negligent and substandard medical care. 28. Plaintiff, Mr. Martinec, after being discharged from the hospital, was transferred to the Mechanicsburg Rehab Hospital where he was hospitalized for the period May 30, 2003 through July 16, 2003. At the rehab facility, he was given physical therapy to learn to walk, speech therapy, occupational therapy, and had to be 7 fed with a gastrostomy tube. He needed total rehabilitation. 29. Upon discharge from the rehab facility, Plaintiff, continued to receive care and treatment until August 27, 2003 at which time he had outpatient care at the rehab facility until October 30, 2003. 30. Upon his discharge on May 30, 2003, Plaintiff, Martinec, had the following discharge diagnosis: Meningitis, presumptively staph, following complex sinus surgery; Systemic Candidiasis; Methansone resistant staph aureus traceal aspirate; Pneumocephalus; Aspiration pneumonia, possible MRSA; Cerebrospinal fluid leak; placement of ventriculostomy to relieve air and act as a drain for possible stoppage of CSF leak. All of these conditions were legally caused by the negligent and substandard medical treatment that had been provided by Defendant, Vander Ark, and Defendant, ENT Group. 31. As a direct and proximate result of the negligent and substandard medical care and treatment provided by Defendant, Vander Ark, and Defendant, ENT Group, Plaintiff, Martinec, in addition to the injuries described above in Paragraph 27, suffered serious central nervous system infection resulting in frontal lobe dysfunction. This has left Plaintiff, Mr. Martinec, with significant mental and emotional dysfunctions, including but not limited to: inattention, lack of motivation, sleepiness and lack of energy and interests. 32. Defendant, Vander Ark, and Defendant, ENT Group, provided substandard medical care and treatment to Plaintiff. Mr. Martinets that was below the 8 standard of care required for the appropriate treatment of Plaintiff, Mr. Martinec, resulting in the conditions described above. 33. As a direct and proximate result of the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, he has suffered permanent irreparable injury resulting in continued pain and discomfort, and restriction in activity. 34. Further, the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, increased the risk of harm to him. 35. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff to incur substantial medical expenses in the past, present and the future and claim is made therefore. 36. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to be permanently disabled. 37. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to incur other miscellaneous expenses in an effort to live as normal a life as possible under the 9 circumstances and claim is made therefore. 38. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer a loss of income and a loss of earning capacity and claim is made therefore. 39. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer in the past, present and future great mental and physical pain and suffering, great inconvenience and an inability to carry out his normal daily activities, great embarrassment and humiliation and loss of life's pleasures and enjoyment, and claim is made therefore. COUNTI JOSEPH P. MARTINEC V WESLEY D. VANDER ARK, M.D. MEDICAL MALPRACTICE 40. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 36 above as if fully rewritten herein. 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligence, carelessness, gross negligence, and willful and wanton careless conduct of Defendant, Vander Ark, as follows: 10 a. Failing to evaluate Plaintiff, Mr. Martinec's, condition and to provide proper treatment or involve a physician experienced with treating Plaintiffs condition; b. Failing to advise and prescribe to Plaintiff, Mr. Martinec, alternative conservative medical treatment for any sinus condition that he had that could have and should have been used prior to surgical treatment prescribed by Defendant, Vander Ark. c. Performing the sinus surgery without using medical treatment as a first option; d. Failing to warn Plaintiff, Mr. Martinec, of the complications that could occur as a result of the sinus surgery, including but not limited to puncturing the wall of the sinus allowing spinal fluid to leak, causing infection into the brain that would cause brain injury; e. Failing to take the necessary precautions to protect Plaintiff, Mr. Martinec, from infection that resulted in the brain injury; f. Recommending surgery that was neither indicated or necessary; g. Performing sinus surgery that was not indicated and not necessary since Plaintiff, Mr. Martinec, was asymptomatic 11 regarding his sinuses; h. Negligently recommending and performing the sinus surgery and follow up care without consulting a physician or other specialist and without prescribing antibiotic therapy to prevent infection following the procedure when he knew that doing so would increase the risk to Plaintiff, Mr. Martinec, and expose him to life threatening conditions and brain damage; i. Negligently recommending and performing the sinus surgery when he knew or should have known that it would increase the risk of injury to Plaintiff, Mr. Martinec; j. Failing to return telephone calls from Plaintiff, Mr. Martinec, following sinus surgery when neurological symptoms were being performed thereby increasing the risk that Plaintiff, Mr. Martinec, would be subjected to life threatening conditions and brain damage; k. Failing to see and examine and provide definitive treatment to Plaintiff, Mr. Martinec, at a time when the life threatening condition and brain injury could have been prevented; 1. Negligently failing to promptly recognize the complications of the sinus surgery and not instituting prompt treatment thereby increasing the risk that Plaintiff, Mr. Martinec, would be 12 exposed to life threatening conditions and brain damage; m. Negligently and carelessly setting in motion a series of events commenced with his negligent treatment of Plaintiff, Mr. Martinec, that resulted in exposing him to life threatening conditions and brain damage; n. Failing to properly care and treat Plaintiff, Mr. Martinec, following the negligent performance of the sinus surgery; o. Failing to properly care and treat Plaintiff, Mr. Martinec, for the obvious conditions that resulted from Defendant, Vander Ark, negligently puncturing the sinus cavity allowing infection to occur in the central nervous system by not providing proper care and treatment at a time when he knew or should have known that improper treatment would increase the risk of developing life threatening conditions and brain injury; p. Failing to possess adequate knowledge, training and experience to treat Plaintiff, Mr. Martinec, once obvious neurological symptoms developed as a result Defendant, Vander Ark, negligently puncturing the sinus cavity so that prompt and appropriate treatment could be administered at a time that the risk of injury could have been lessened; 13 q. Failing to obtain appropriate consultation in a timely fashion prior to commencing treatment that was contraindicated for Plaintiff, Mr. Martinec's, condition and/or continue a course of treatment when it became apparent that such treatment was increasing the risk of life threatening conditions and Plaintiff's condition was deteriorating; r. Failing to or delaying the transfer of Plaintiff, Mr. Martinec, to the care of physicians who had sufficient knowledge, education and experience to diagnose and treat his condition; and s. Being otherwise careless and negligent as may be discovered during the discovery proceedings in this case. 42. Defendant, Vander Ark's, negligent and careless actions in providing substandard care and treatment of Plaintiff, Mr. Martinec, resulted in his sustaining brain injury and conditions related to the brain injury. Defendant, Vander Ark, is liable for all subsequent consequences of his negligent and careless sub-standard care and treatment that he provided to Plaintiff, Mr. Martinec. The negligent and careless sub-standard care and treatment provided by Defendant, Vander Ark, is a substantial factor and legal cause of Plaintiff's injuries and damages as more fully set forth above; and/or increased the risk that Plaintiff, Mr. Martinec, would suffer such injuries and damages. 14 43. Additionally, Plaintiff, Mr. Martinec, was not given the opportunity to fully assess the risks involved in the procedure and therefore did not give a fully informed consent to the procedure resulting in Defendant, Vander Ark, committing a battery upon the person of Plaintiff, Mr. Martinec, causing him severe injury for which Defendant, Vander Ark, is liable. Plaintiff, Mr. Martinec, was injured and damaged as more fully set forth in the previous paragraphs and claim is made therefore. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, Vander Ark, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY VICARIOUS LIABILITY 44. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 39 above as if fully rewritten herein. 45. At all times material hereto, Defendant, ENT Group, employed physicians, physicians' assistants, nurses and other professionals and paraprofessionals, including but not limited to Defendant, Vander Ark, and the employees and agents related to Defendant, ENT Group, call service, and the nurses and clerical employees responsible for the communications with Plaintiff, Mr. Martinec, and/or his wife 15 regarding the medical and surgical care and treatment described above, to provide and/or assist in providing medical and surgical care and treatment to patients of Defendant, ENT Group. Specific names of the individuals involved are not now known but will be identified through discovery and further investigation. 46. At all times material hereto, Defendant, ENT Group, acted through its agents, ostensible agents, servants, and/or employees, as described above in Paragraph 45, and is responsible for all actions or inactions of said agents, ostensible agents, servants, and/or employees and is vicariously liable for all of their negligence and carelessness, including that of Defendant, Vander Ark, as described above. 47. Defendant, ENT Group, through its agents, ostensible agents, servants and employees, as described above in Paragraph 45, was otherwise careless and negligent as may be determined after discovery is complete in this case. 48. As a result of the negligent and careless medical care and treatment rendered by the agents, ostensible agents, servants and employees of Defendant, ENT Group, as described above in Paragraph 45, said Defendant, ENT Group, is vicariously liable for all of Plaintiff's injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. 16 COUNT III JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY CORPORATE LIABILITY 49. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 43 above as if fully rewritten herein. 50. Defendant, ENT Group,. owed a non-delegable duty to Plaintiff, Mr. Martinec, to insure his safety and well-being while he was receiving medical care while being treated by its staff physicians, physicians' assistants, other paraprofessionals, agents, ostensible agents, servants and employees, including but not limited to Defendant, Vander Ark, and the employees and agents related to Defendant, ENT Group, call service, and the nurses and clerical employees responsible for the communications with Plaintiff, Mr. Martinec, and/or his wife regarding the medical and surgical care and treatment described above. 51. Defendant, ENT Group, failed to uphold and assure that its staff physicians, physicians' assistants and other paraprofessionals and staff and its agents, ostensible agents, servants and employees, as described above in Paragraph 50, provided the appropriate standard of medical care and treatment to Plaintiff, Mr. Martinec, in the following respects: a. Failing to properly select and retain physicians and physicians' assistants and other staff to provide timely and adequately provide care and treatment to its patients treated 17 by its office, including, Plaintiff, Mr. Martinec, as set forth herein above; b. Failing to properly oversee the physicians, physicians assistants, and health care professionals and paraprofessionals and other staff in providing medical care and treatment to its patients so as to assure the rendering of good, timely, appropriate and adequate medical care to its patients, including Plaintiff, Mr. Martinec; c. Failing to properly formulate, adopt and enforce adequate rules, policies and procedures to insure quality medical care for its patients, including Plaintiff, Mr. Martinec. 52. Defendant, ENT Group, through its administration, agents, ostensible agents, servants or employees, as described above in Paragraph 50, had actual or constructive notice of the negligent and careless medical treatment provided to Plaintiff. Mr. Martinec. 53. Defendant, ENT Group's, negligence and carelessness either caused or increased the risks that Plaintiff, Mr. Martinec, would suffer the permanent disabilities as a result of the failure to appropriately treat and care for his physical condition as previously set forth above. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars 18 ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. PETERS & WASILEFSKI f-I By. Charles E. Wasilefski, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Ext. 110 Attorneys for Plaintiff, Joseph P. Martinec Date: l/d-016L 19 VERIFICATION I hereby affirm that the following facts are correct: I, Joseph P. Martinec am the Plaintiff in the foregoing action and 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 the prosecution of the 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 upon 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. Section 4904 relating to unsworn falsification to authorities. Joseph P. artinec Dater CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a legal assistant in the law offices of Peters & Wasilefski, have this a,O day of 2006, served a true and correct copy of the foregoing AMENDED COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum FRANCES M. ANGELOFF, Individually and as Administratrix Of the Estate of SELENA M. ANGELOFF, deceased : V. JACK L. ARMSTRONG, M.D., et al IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 4743 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TACK L. ARMSTRONG, M.D., JOAN M. MONTELLO, M.D. AND MEDICAL ARTS. ALLERGY, P.C. BEFORE HOFFER, P.J., OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this 13TH day of MAY, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. The Preliminary Objections to the claim for punitive damage and corporate negligence are GRANTED. The remaining preliminary objections are DENIED. Peter M. Villari, Esquire Paul D. Brandes, Esquire Marianne K. Currie, Esquire Leigh A.J. Ellis, Esquire Francis E. Marshall, Esquire Thomas M. Chairs, Esquire By Court, Edward E. Guido, J. TRUE COPY FROM RECCRO to Taatimony watwec,4, l Wr.4 unlw sAl my hand and the zeal of sale Coun s1 Carlo, Pa. This- r3 y tV6, .. 2avj Proftnai+aty FRANCES M. ANGELOFF, Individually and as Administratrix Of the Estate of SELENA M. ANGELOFF, deceased : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JACK L. ARMSTRONG, M.D., et al NO. 2004 - 4743 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS JACK L. ARMSTRONG, M.D., JOAN M. MONTELLO, M.D. AND MEDICAL ARTS, ALLERGY, P.C. BEFORE HOFFER, P.J., OLER, GUIDO, JJ. OPINION AND ORDER OF COURT Defendants have filed numerous preliminary objections. For the reasons hereinafter set forth we will 1) grant the objections to the claim for punitive damages and to the claim based upon the theory of corporate negligence and 2) dismiss the preliminary objection to the claim for damages in the wrongful death action. The remaining preliminary objections will be dismissed without discussion. The tragic incident giving rise to this action occurred on August 14, 2003. Defendants had developed an anti-allergy regimen for plaintiff s decedent approximately 9 months earlier. Pursuant to that regimen she had received a series of allergy specific immunotherapy shots in progressively larger dosages. The shots were typically administered by nurse practitioner Defendant Jodi Johnson. On August 14, 2003, nurse practitioner Johnson administered a shot and left plaintiff s decedent sitting alone in the examination room. Within a few minutes she emerged with signs of an allergic reaction to the shot. The nurse immediately NO. 2004 - 4743 CIVi TERM administered drugs to counter the reaction. When plaintiff's decedent collapsed, 911 was called immediately. Attempts to resuscitate her at defendants' office were futile. She eventually died at Holy Spirit Hospital later that day. Punitive Damages Punitive damages may not be awarded for ordinary negligence, even gross negligence. Hutchison v. Luddy, 763 A.2d 826, 827 (Pa.Super. 2000). As the Superior Court has stated: It is well settled that punitive damages will lie only in cases of outrageous behavior, where defendant's egregious conduct shows either an evil motive or reckless indifference to the rights of others. Punitive damages are appropriate when an individual's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct. Slappo v. J's Development Associates, Inc. 791 A.2d 409, 417 (Pa.Super. 2002) quoting from Bannar v. Miller, 701 A.2d 232, 242 (Pa.Super. 1997). In the instant case plaintiffs' counsel contends that punitive damages are justified for the following reasons: • The defendants knew of decedent's history of uncontrolled asthma. • They knew she had previously experienced allergic reactions to the shots. • They left her alone in an examination room without observation. • The nurse practitioner administered the shot with no physician on the premises. • The resuscitative equipment on premises was not adequate for this type of emergency. NO. 2004 - 4743 CIVL. TERM The above allegations amount to no more than negligence or gross negligence. They do not evidence "an evil motive or reckless indifference to the rights of others". Therefore, the claim for punitive damages cannot stand. Corporate Negligence In Thompson v. Nason Hospital, 27 Pa. 330, 591 A.2d 703 (1991) the Pennsylvania Supreme Court adopted a "corporate negligence" theory of liability for hospitals. As the Supreme Court stated: Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party. 591 A.2d at 707. In the recent case of Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa. Super. 2004) the Superior Court refused to extend the theory of corporate negligence to physician practice groups. Consequently, we must sustain the demurrer to the claim of corporate negligence against Defendant Medical Arts Allergy, P.C.' Wrongful Death Damages In paragraph 92 of the complaint plaintiff avers the following: Plaintiff claims on behalf of the above statutory beneficiary(ies), all damages available under the Pennsylvania Wrongful Death Act, such as pecuniary losses, loss of society, tutelage, advice, assistance and counsel, funeral and/or burial expenses, as well as costs of administration. We note that plaintiffs have pled a valid claim against Defendant Medical Arts Allergy, P.C. based upon its vicarious liability for the acts of its employees. That claim is not affected by this decision. NO. 2004 - 4743 CIV. PERM The statutory beneficiary is identified as the decedent's nine year old son. Defendants object to the claim for "loss of society, advice and assistance and counsel"3 To the extent that the plaintiffs' claim includes the type of loss of comfort and society normally associated with a loss of consortium claim, defendant is correct. Pennsylvania does not recognize a claim for "loss of parental consortium". Machado v. Kunkel, 804 A.2d 1238, 1245. However, as the Machado court also stated: Under Pennsylvania law, a child can recover in a wrongful death action for the loss of companionship, comfort, society and guidance of a parent. This element of damages had also been described as "loss of guidance, tutelage, and moral upbringing." 804 A.2d at 1245 quoting from Walton v. Avco Corp., 383 PaSuper. 518 557 A.2d 372, 388 (1989). (citations omitted). Therefore, defendants' objection must fail. ORDER OF COURT AND NOW, this 13TH day of MAY, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. The Preliminary Objections to the claim for punitive damage and corporate negligence are GRANTED. The remaining preliminary objections are DENIED. By the Court, Is/ Edward E. Guido Edward E. Guido, J. Peter M. Villari, Esquire Paul D. Brandes, Esquire Marianne K. Currie, Esquire Leigh A.J. Ellis, Esquire Francis E. Marshall, Esquire Thomas M. Chairs, Esquire z Complaint, paragraph 5. 'See Preliminary Objections, paragraph 44. 4 CERTIFICATE OF SERVICE AND NOW, this day of February, 2006, I, Aaron S. Jayman., Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record or parties involved by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 Dated: /Z ?? I 0? ? Aaron . a E ire 10 ?? r, ._, -?, ? ?.?? :. ? ., _.. ;;; <., ' _; ? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court, CAPTION OF CASE Joseph P. Martinec, (Plaintiff) vs. Wesley D. Vander Ark, M.D., and ENT Facial Plastic Surgery Group, P.C., (Defendant) No. 2005-1626, Civil Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiffs Amended Complaint. 2. Identify counsel who will argue cases: (a) for plaintiff: Charles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1250 (b) for defendant Aaron S. Jayman, Esquire 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: First Available Signa Aaron S. Jayman Print your name Date: Aaron S. Jayman, Esquire Attorney for Defendant Wesley D. Vander Ark, M.D. & ENT Facial Plastic Surgery Group, P.C. CERTIFICATE OF SERVICE AND NOW, this 13`h day of February 2006, I, Aaron S. Jayman, Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Charles E. Wasilefski, Esquire 2931 North Front St. Harrisburg, PA 17110 qA7"A- Aaron S. Jayman, Esquire ? ? rv _7 s--? i l -:} ? t'ry ^ m C7 ?i.?_ '°" ' ` . r a _ . ' ? i \ ' C? 7 `i7 __ `^: PETERS & W ASILEFSI4 By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [7171238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - L AW WESLEY D. VANDER ARK, M.D., No. 05-1626 CIVIL -MM And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 (717] 249-3166 800-990-9108 AVISO USTED HA SIDO DEMANDADIO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dfas despuesde la notificaci6n de esta Demanda y Aviso radicando personalmente o pot medio de un abogado una comparencencia escrita y radicando en la Corte pot escrito sus defenses de, y objeciones a, las demandas presentadas aqui en contra suya. Se to advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo pot cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacidn o remedio solicitado pot el demandante puede set dictado en contra suya pot la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABORGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [717] 249-3166 800-990-9108 PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [7171238-7555 Attorneys for Plaintiffs, Joseph P. Martinec JOSEPH P. MARTINEC, Plaintiff, V. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants No. 2005 - 1626 CIVIL - MM CIVIL ACTION - LA W JURY TRIAL DEMANDED SECOND AMENDED COMPLAINT NOW COMES, Plaintiff, Joseph P. Martinec ("Mr. Martinec"), by and through his attorneys, Peters & Wasilefski, and files this Amended Complaint against Defendants, Wesley D. Vander Ark, M.D. ("Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), as follows: 1, Plaintiff, Mr. Martinec, is an adult individual who currently resides at 3517 Belair Road, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, Vander Ark, is an adult individual, and a licensed professional, who, currently has offices and a place of business at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. At all times relevant, Defendant, Vander Ark, was licensed to practice medicine in the Commonwealth of Pennsylvania. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant. 3. Defendant, ENT Group, is a corporation organized and registered in the Commonwealth of Pennsylvania for the purpose of providing medical services to patients with its office and principle place of business located at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. Defendant, ENT Group, is a professional corporation that has been organized for the purpose of providing and maintaining facilities and professional and/or paraprofessional personnel for the medical and surgical care and treatment of patients. Said Defendant, ENT Group, specifically provides medical and surgical services related to the ear, nose and throat. Defendant, ENT Group, employs other professional and/or paraprofessional staff to provide assistance to the physicians and physician's assistants in the medical care and treatment of patients and in the performance of surgery and post-surgical care. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant, as more specifically set forth in Counts 11 and III below. 4. Plaintiff, Mr. Martinec, was first seen at Defendant, ENT Group, by Defendant, Vander Ark, on or about February 10, 2003, with complaints of chronic hearing loss in his left ear. 5. On or about February 10, 2003, Defendant, Vander Ark, saw Plaintiff, Mr. Martinec, and performed a physical examination and audiogram and rendered the following assessment: Flaccid tympanic membrane with incus-stapedial joint erosion and stapedial pexy and mixed conductive hearing loss in the left ear. 2 He also has an effusion on that side and sinonasal polyps. 6. On or about February 10, 2005, Defendant, Vander Ark, recommended that Plaintiff, Mr. Martinec, have a CT scan of the sinuses and his left temporal bone to rule out cholesteatoma in that ear. 7. On or about February 18, 2003, the CT scan was performed and the following interpretation of the CT Scan was rendered: Sinuses Pansinusitis with probable sino-nasal polyposis. Coronal images only were performed through the paranasal sinuses, as the patient was unable to comply with the supine positioning of the axial. Mastoid Concern for cholesteatoma on the left, with the floor of the middle cranial fossa appearing disrupted at the level of the mastoid air cells. 8. On or about February 21, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, who prescribed a repeat CT scan of Plaintiff, Mr. Martinec's, temporal bone and endoscopic sinus surgery to attempt to improve the Eustachian tube function prior to performing surgery on the ear. 9. At no time did Defendant, Vander Ark, discuss with Plaintiff, Mr. Martinec, any alternative conservative treatment for the sinuses nor any of the risks or complications of the proposed sinus surgery. Plaintiff, Mr. Martinec, was never apprised nor given the option of conservative medical care for his sinuses prior to surgery nor that the proposed surgery may cause brain damage. 10. On or about April 1, 2003, Plaintiff, Mr. Martinec, underwent 3 surgery of the anterior and posterior ethmoidectomy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy. 11. Following surgery, Plaintiff, Mr. Martinec, was allowed to wake up fully extubated and taken to the recovery room. He was discharged home on Dyazide. 12. Following discharge, it was noted that Plaintiff, Mr. Martinec, was unable to urinate so he was taken to the Emergency Room where a Foley catheter was placed and he was discharged from the Emergency Room with the instruction to follow up with the urologist in one week. 13. On or about April 2, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, for a post operative follow up. Defendant, Vander Ark, examined Plaintiff, Mr. Martinec, and it was noted that the packs were in place and were removed, ethmoid bowls were clear and there was more crusting on the right side which was removed. Sepra Gel was placed bilaterally and Plaintiff, Mr. Martinec, was told to follow up in one week. 14. On or about April 4, 2003, two days following the first post operative visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, developed neck pain, headache and significant nasal drainage. He was becoming confused and was not eating as well as normal. 15. As a result of the symptoms described above in Paragraph 14, Mrs. Martinec telephoned Defendant, Vander Ark's, office and alerted them to the 4 symptoms and complaints of Plaintiff, Mr. Martinec. Defendant, Vander Ark, did not see Plaintiff, Mr. Martinec, as a result of this call. Mrs. Martinec was merely told to give Plaintiff, Mr. Martinec, Tylenol for his headache. No further recommendations were made. 16. Plaintiff, Mr. Martinec's, condition continued to become worse and on or about April 5, 2003, Mrs. Martinec again called Defendant, Vander Ark's, office and spoke to the answering service and again told them about Plaintiff, Mr. Martinec's, worsening symptoms and further expressed that she believed that such symptoms and complaints were the result of the surgery. Neither Mrs. Martinec nor Plaintiff, Mr. Martinec, received a call back. Plaintiff, Mr. Martinec, spent April 5 and April 6, 2003 in bed with ice packs on his head and was taking Tylenol every 4-6 hours for his headache. 17. On or about April 6, 2003, Plaintiff, Mr. Martinec's, condition deteriorated to the point that he was unable to get out of bed. Neither Defendant, Vander Ark, nor anyone from his office returned the call on this day. 18. Finally, on April 7, 2003, Defendant, Vander Ark's, office returned the call and informed Mrs. Martinec that there had been an appointment scheduled for Plaintiff, Mr. Martinec, to be seen at 8:30 a.m. Mrs. Martinec had not been previously informed of the alleged appointment. 19. However, on April 7, 2003, Plaintiff, Mr. Martinec, was seen by Defendant, Vander Ark, later that morning. At that time, Plaintiff, Mr. Martinec, was 5 accompanied by Mrs. Martinec and she informed Defendant, Vander Ark, that Plaintiff, Mr. Martinec, was confused, had difficulty walking, was experiencing nasal drainage and that he had complained of neck pain and headache for three days and that this had been reported to his office. At the time of this visit, Plaintiff, Mr. Martinec, had to be assisted into the office. 20. On April 7, 2003, Defendant, Vander Ark, performed a physical examination, endoscopic examination and debridement of the ethmoid bowls. With regard to the complaints of confusion, neck pain and headache, Defendant, Vander Ark, did nothing except indicated to Mrs. Martinec that if this persisted, she should take Plaintiff, Mr. Martinec, to the emergency room for evaluation and blood work. 21. Upon returning home after his visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, continued to experience confusion and weakness and Mrs. Martinec took him to the emergency room. 22. On April 7, 2003, Plaintiff, Mr. Martinec, was taken to the emergency room and admitted into the hospital with a diagnosis of: altered mental status, sepsis, urinary tract infection, and rule out meningitis. A CT scan of the brain showed that he had pneumocephalus and a lumbar puncture resulted in four samples containing blood. 23. Additional CT Scans were ordered and the CT Scan of the sinuses revealed a hole in the cruciform plate posteriorly and the posterieor superior ethmoid region, approximately 4mm anterior to the sphenoid. Plaintiff, Mr. Martinec, 6 was also noted to have increased air in his head and underwent ventriculostomy. 24. After being examined by the Emergency Room physician and the diagnosis of meningitis was made, Mrs. Martinec called Defendant, Vander Ark, and told him that Plaintiff, Mr. Martinec, had been diagnosed as having meningitis and that he was being admitted into the hospital. Defendant, Vander Ark, came to the Emergency Room but did not examine Plaintiff, Mr. Martinec. He did, however, indicate to Mrs. Martinec that "I must have nicked his sinus when I was cleaning it out. " 25. The conditions described in the previous paragraphs were all caused by the negligent performance of the sinus surgery by Defendant, Vander Ark. 26. While in the hospital, on April 11, 2003, Plaintiff, Mr. Martinec, underwent nasal endoscopy and repair of the cerebral spinal fluid leak with turbinate graft. 27. Plaintiff, Mr. Martinec, remained hospitalized until May 30, 2003, when he was transferred to a rehab facility for rehabilitation necessitated by the brain injury sustained as a result of Defendant, Vander Ark, and Defendant, ENT Group, negligent and substandard medical care. 28. Plaintiff, Mr. Martinec, after being discharged from the hospital, was transferred to the Mechanicsburg Rehab Hospital where he was hospitalized for the period May 30, 2003 through July 16, 2003. At the rehab facility, he was given physical therapy to learn to walk, speech therapy, occupational therapy, and had to be 7 fed with a gastrostomy tube. He needed total rehabilitation. 29. Upon discharge from the rehab facility, Plaintiff, continued to receive care and treatment until August 27, 2003 at which time he had outpatient care at the rehab facility until October 30, 2003. 30. Upon his discharge on May 30, 2003, Plaintiff, Martinec, had the following discharge diagnosis: Meningitis, presumptively staph, following complex sinus surgery; Systemic Candidiasis; Methansone resistant staph aureus traceal aspirate; Pneumocephalus; Aspiration pneumonia, possible MRSA; Cerebrospinal fluid leak; placement of ventriculostomy to relieve air and act as a drain for possible stoppage of CSF leak. All of these conditions were legally caused by the negligent and substandard medical treatment that had been provided by Defendant, Vander Ark, and Defendant, ENT Group. 31. As a direct and proximate result of the negligent and substandard medical care and treatment provided by Defendant, Vander Ark, and Defendant, ENT Group, Plaintiff, Martinec, in addition to the injuries described above in Paragraph 27, suffered serious central nervous system infection resulting in frontal lobe dysfunction. This has left Plaintiff, Mr. Martinec, with significant mental and emotional dysfunctions, including but not limited to: inattention, lack of motivation, sleepiness and lack of energy and interests. 32. Defendant, Vander Ark, and Defendant, ENT Group, provided substandard medical care and treatment to Plaintiff, Mr. Martinec, that was below the 8 standard of care required for the appropriate treatment of Plaintiff, Mr. Martinec, resulting in the conditions described above. 33. As a direct and proximate result of the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, he has suffered permanent irreparable injury resulting in continued pain and discomfort, and restriction in activity. 34. Further, the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, increased the risk of harm to him. 35. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff to incur substantial medical expenses in the past, present and the future and claim is made therefore. 36. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to be permanently disabled. 37. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to incur other miscellaneous expenses in an effort to live as normal a life as possible under the 9 circumstances and claim is made therefore. 38. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer a loss of income and a loss of earning capacity and claim is made therefore. 39. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer in the past, present and future great mental and physical pain and suffering, great inconvenience and an inability to carry out his normal daily activities, great embarrassment and humiliation and loss of life's pleasures and enjoyment, and claim is made therefore. COUNTI JOSEPH P. MARTINEC V WESLEY D. VANDER ARK. M.D. MEDICAL MALPRACTICE 40. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 36 above as if fully rewritten herein. 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligent and careless conduct of Defendant, Vander Ark, which conduct falls below the standard of care required under the facts and circumstances of this case as follows: 10 a. Failing to evaluate Plaintiff, Mr. Martinet's, condition and to provide proper treatment or involve a physician experienced with treating Plaintiff's condition; b. Failing to advise and prescribe to Plaintiff, Mr. Martinec, alternative conservative medical treatment for any sinus condition that he had that could have and should have been used prior to surgical treatment prescribed by Defendant, Vander Ark, c. Performing the sinus surgery without using medical treatment as a first option; d. Failing to warn Plaintiff, Mr. Martinec, of the complications that could occur as a result of the sinus surgery, including but not limited to puncturing the wall of the sinus allowing spinal fluid to leak, causing infection into the brain that would cause brain injury; e. Failing to take the necessary precautions to protect Plaintiff, Mr. Martinec, from infection that resulted in the brain injury; f. Recommending surgery that was neither indicated or necessary; g. Performing sinus surgery that was not indicated and not necessary since Plaintiff, Mr. Martinec, was asymptomatic 11 regarding his sinuses; h. Negligently performing the sinus surgery: i. Negligently recommending and performing the sinus surgery and follow up care without consulting a physician or other specialist and without prescribing antibiotic therapy to prevent infection following the procedure when he knew that doing so would increase the risk to Plaintiff, Mr. Martinec, and expose him to life threatening conditions and brain damage; j. Negligently recommending and performing the sinus surgery when he knew or should have known that it would increase the risk of injury to Plaintiff, Mr. Martinec; k. Failing to return telephone calls from Plaintiff, Mr. Martinec, following sinus surgery when neurological symptoms were being performed thereby increasing the risk that Plaintiff, Mr. Martinec, would be subjected to life threatening conditions and brain damage; 1. Failing to see and examine and provide definitive treatment to Plaintiff, Mr. Martinec, at a time when the life threatening condition and brain injury could have been prevented; in. Negligently failing to promptly recognize the complications of the sinus surgery and not instituting prompt treatment thereby increasing the risk that Plaintiff, Mr. Martinec, would be 12 exposed to life threatening conditions and brain damage; n. Failing to properly care and treat Plaintiff, Mr. Martinec, for the obvious conditions that resulted from Defendant, Vander Ark, negligently puncturing the sinus cavity allowing infection to occur in the central nervous system by not providing proper care and treatment at a time when he knew or should have known that improper treatment would increase the risk of developing life threatening conditions and brain injury; o. Failing to possess adequate knowledge, training and experience to treat Plaintiff, Mr. Martinec, once obvious neurological symptoms developed as a result Defendant, Vander Ark, negligently puncturing the sinus cavity so that prompt and appropriate treatment could be administered at a time that the risk of injury could have been lessened; p. Failing to obtain appropriate consultation in a timely fashion prior to commencing treatment that was contraindicated for Plaintiff, Mr. Martinec's, condition and/or continue a course of treatment when it became apparent that such treatment was increasing the risk of life threatening conditions and Plaintiff's condition was deteriorating; and 13 q. Failing to or delaying the transfer of Plaintiff, Mr. Martinec, to the care of physicians who had sufficient knowledge, education and experience to diagnose and treat his condition. 42. Defendant, Vander Ark's, negligent and careless actions in providing substandard care and treatment of Plaintiff, Mr. Martinec, resulted in his sustaining brain injury and conditions related to the brain injury. Defendant, Vander Ark, is liable for all subsequent consequences of his negligent and careless sub-standard care and treatment that he provided to Plaintiff, Mr. Martinec. The negligent and careless sub-standard care and treatment provided by Defendant, Vander Ark, is a substantial factor and legal cause of Plaintiff's injuries and damages as more fully set forth above; and/or increased the risk that Plaintiff, Mr. Martinec, would suffer such injuries and damages. 43. Additionally, Plaintiff, Mr. Martinec, was not given the opportunity to fully assess the risks involved in the procedure and therefore did not give a fully informed consent to the procedure resulting in Defendant, Vander Ark, committing a battery upon the person of Plaintiff, Mr. Martinec, causing him severe injury for which Defendant, Vander Ark, is liable. Plaintiff, Mr. Martinec, was injured and damaged as more fully set forth in the previous paragraphs and claim is made therefore. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, Vander Ark, in an amount in excess of Fifty Thousand Dollars 14 ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY VICARIOUS LIABILITY 44. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 39 above as if fully rewritten herein. 45. At all times material hereto, Defendant, ENT Group, employed physicians, physicians' assistants, nurses and other professionals and paraprofessionals, including but not limited to Defendant, Vander Ark, and the employees and agents related to Defendant, ENT Group, call service, and the nurses and clerical employees responsible for the communications with Plaintiff, Mr. Martinec, and/or his wife regarding the medical and surgical care and treatment described above, to provide and/or assist in providing medical and surgical care and treatment to patients of Defendant, ENT Group. Specific names of the individuals involved are not now known but will be identified through discovery and further investigation. 46. At all times material hereto, Defendant, ENT Group, acted through its agents, ostensible agents, servants, and/or employees, as described above in Paragraph 45, and is responsible for all actions or inactions of said agents, ostensible agents, servants, and/or employees and is vicariously liable for all of their negligence and carelessness, including that of Defendant, Vander Ark, as described above. 15 47. Defendant, ENT Group, through its agents, ostensible agents, servants and employees, as described above in Paragraph 45, was otherwise careless and negligent as may be determined after discovery is complete in this case. 48. As a result of the negligent and careless medical care and treatment rendered by the agents, ostensible agents, servants and employees of Defendant, ENT Group, as described above in Paragraph 45, said Defendant, ENT Group, is vicariously liable for all of Plaintiff's injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. PETERS & WASILEFSKI By: a" . , I L L?? Charles E. Wasilefski, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [7171238-7555 Ext. 110 Attorneys for Plaintiff, Joseph P. Martinec Date: March 23, 2006 16 VERIFICATION I hereby affirm that the following facts are correct: I, Joseph P. Martinec am the Plaintiff in the foregoing action and 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 the prosecution of the 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 upon 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. Section 4904 relating to unsworn falsification to authorities. Joseph P. Martinec Dater CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a legal assistant in the law offices of Peters & Wasilefski, have this a?-N day of 2006, served a true and correct copy of the foregoing SECOND AMENDED COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum '_a _ ?,, i i - . ? -1 ?,`? i e,' ' -; PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [7171238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff : IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, : PENNSYLVANIA VS. : CIVIL ACTION - L AW WESLEY D. VANDER ARK, M.D., : No. 2005-1626 And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT REOUIRED BY PA. R.C.P. 1042.3(a) Certificate of Merit as to Wesley D. Vander Ark, M.D. 1, Charles E. Wasilefski, 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 alleged in the Complaint. PETERS & WASILEFSKI By: Charles E. Wasilefski Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [717] 238-7555, Ext. 110 Attorney for Plaintiff Date: April 4, 2006 CERTIFICATE OF SERVICE This is to certify that I, Charles E. Wasilefski, Esquire, an attorney in the law offices of Peters & Wasilefski, have this j day of 2006, served a true and correct copy of the foregoing CERTIFICATE OF MERIT. upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Charles E. Wasilefski J '_ DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY I.D. NO. 78565 AARON S. JAYMAN, ESQUIRE ATTORNEY I.D. 85651 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803 (Fax) Plaintiff JOSEPH P. MARTINEC, V. WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., ATTORNEY FOR: DEFENDANTS WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Joseph P. Martinec c/o Charles E. Wasilefski, Esquire Peters & Wasilefski 2931 North Front St. Harrisburg, PA 17110 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN NEW MATTER WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING OR JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. Date: May 1, 2006 By: Ate???? F anis hall, Jr., Esquire Supr ourt I. D. #27594 Aaron S. Jayman, Esquire Supreme Court I.D. #85651 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, WesleyD. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P.C. DICKIE, MCCAMEY & CHILCOTE, P.C. ATTORNEY FOR: DEFENDANTS BY: FRANCIS E. MARSHALL, JR. ATTORNEY I.D. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY I.D. NO. 78565 AARON S. JAYMAN, ESQUIRE ATTORNEY I.D. NO. 85651 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)1314800 (Tele) (717)731-4803 (Fax) JOSEPH P. MARTINEC, V. Plaintiff WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C., WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S SECOND AMENDED COMPLAINT AND NOW, come Defendants, Wesley D. Vander Ark, M.D. ("Dr. Vander Ark"), and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), collectively hereinafter referred to as ("Answering Defendants"), by and through their counsel, Dickie, McCamey & Chilcote, P.C., and file the within Answer with New Matter to Plaintiff's Second Amended Complaint, and in support thereof, aver as follows: Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of these allegations and they are therefore deemed denied. 2. Admitted in part, denied in part. It is admitted that Plaintiff is asserting a professional liability claim against Dr. Vander Ark, and that at all times relevant, Dr. Vander Ark was licensed to practice medicine in the Commonwealth of Pennsylvania. By way of further response, Dr. Vander Ark is an adult individual and a licensed professional who currently has offices and a place of business at 1857 Center St., Camp Hill, Cumberland County, Pennsylvania. It is specifically denied that Plaintiff's claim has any merit whatsoever. Furthermore, it is specifically denied that Dr. Vander Ark is in any way liable to Plaintiff. The remaining allegations are denied as conclusions of law. 3. Admitted in part, denied in part. It is admitted that Plaintiff is asserting a professional liability claim against ENT Group. ENT Group is a corporation organized and registered in the Commonwealth of Pennsylvania with its office and principle place of business located at 1857 Center St., Camp Hill, Cumberland County, Pennsylvania. ENT Group does not provide medical services to patients. Only licensed healthcare providers provide medical services to patients. It is specifically denied that Plaintiffs claim has any merit whatsoever. Furthermore, it is specifically denied that ENT Group is in way liable to Plaintiff. By way of further response, the Second Amended Complaint does not include a Count III. The remaining allegations are denied as conclusions of law. 4.-8. Denied generally pursuant to Pa.R.C.P. 1029(e). 9. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averments of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not negligent. To the contrary, Answering Defendants 2 met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 10.-24. Denied generally pursuant to Pa.R.C.P. 1029(e). 25. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averments of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 26. Denied generally pursuant to Pa.R.C.P 1029(e). 27. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 28.-29. Denied generally pursuant to Pa.R.C.P. 1029(e). 30. Denied. This paragraph of Plaintiffs Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 31. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph 3 contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 32. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 33. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not careless and negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 34. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not careless and negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 35. Denied. This paragraph of Plaintiff's Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, 4 Answering Defendants were not careless and negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 36. Denied. This paragraph of Plaintiffs Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not careless and negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 37. Denied. This paragraph of Plaintiffs Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not careless and negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 38. Denied. This paragraph of Plaintiffs Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not careless and negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 39. Denied. This paragraph of Plaintiffs Second Amended Complaint contains legal and medical conclusions to which no responses are required. To the extent that this paragraph 5 contains averment of fact, they are denied generally pursuant to Pa.R.C.P. 1029(e). Furthermore, Answering Defendants were not careless and negligent. To the contrary, Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. MEDICAL MALPRACTICE 40. Answering Defendants hereby incorporate by reference answers contained in paragraphs 1 through 39 as if fully set forth at length herein. 41(a) - (q). Denied. These paragraphs and corresponding subparagraphs of Plaintiff's Second Amended Complaint are denied as conclusions of law as well as medical conclusions to which no responses are required. In the alternative, to the extent that these paragraphs and corresponding subparagraphs of Plaintiffs Second Amended Complaint contain facts to which a responsive pleading is required, those allegations of fact are denied generally pursuant to Pa.R.C.P. 1029(e). By way of further response, Dr. Vander Ark was not negligent or careless and is not liable to Plaintiff. To the contrary, at all relevant times, Dr. Vander Ark met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 42. Denied. This paragraph of Plaintiffs Second Amended Complaint is denied as a conclusion of law as well as medical conclusions to which no response is required. In the alternative, to the extent that this paragraph of Plaintiffs Second Amended Complaint contains facts to which a responsive pleading is required, those allegations of fact are denied generally pursuant to Pa.R.C.P. 1029(e). By way of further response, Dr. Vander Ark was not negligent or careless and is not liable to Plaintiff. To the contrary, at all relevant times, Dr. Vander Ark met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 6 43. Denied. This paragraph of Plaintiff's Second Amended Complaint is denied as a conclusion of law as well as medical conclusions to which no response is required. In the alternative, to the extent that this paragraph of Plaintiff's Second Amended Complaint contains facts to which a responsive pleading is required, those allegations of fact are denied generally pursuant to Pa.R.C.P. 1029(e). By way of further response, Dr. Vander Ark was not negligent or careless and is not liable to Plaintiff. To the contrary, at all relevant times, Dr. Vander Ark met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C. deny that Plaintiff is entitled to the relief requested or any relief whatsoever and demand that judgment be entered in their favor and against the Plaintiff and that it be awarded appropriate costs and fees. COUNT 11 JOSEPH P. MARTINEC v. ENT FACIAL PLASTIC SURGERY VICARIOUS LIABILITY 44. Answering Defendants hereby incorporate by reference answers contained in paragraphs 1 through 43 as if fully set forth at length herein. 45. Denied. Any general allegations of agency are specifically and unequivocally denied. By way of further response, the averments contained in this paragraph of Plaintiff's Second Amended Complaint are denied as conclusions of law to which no response is required. To the extent that this paragraph contains facts to which a responsive pleading is required, those allegations of fact are denied generally pursuant to Pa.R.C.P. 1029(e). 46. Denied. Any general allegations of agency are specifically and unequivocally denied. By way of further response, this paragraph is denied as a conclusion of law to which no response is required. In further response, ENT Group was not negligent or careless and is not 7 liable to the Plaintiff. To the contrary, at all relevant times ENT Group met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 47. Denied. Any general allegations of agency are specifically and unequivocally denied. By way of further response, this paragraph is denied as a conclusion of law to which no response is required. In further response, ENT Group was not negligent or careless and is not liable to the Plaintiff. To the contrary, at all relevant times ENT Group met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 48. Denied. Any general allegations of agency are specifically and unequivocally denied. By way of further response, this paragraph is denied as a conclusion of law to which no response is required. In further response, ENT Group was not negligent or careless and is not liable to the Plaintiff. To the contrary, at all relevant times ENT Group met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. WHEREFORE, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C. deny that Plaintiff is entitled to the relief requested or any relief whatsoever and demand that judgment be entered in their favor and against the Plaintiff and that it be awarded appropriate costs and fees. NEW MATTER By way of further answer, Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., avers the following New Matter directed to Plaintiff: 49. Plaintiff has failed to state a claim upon which relief can be granted. 50. Plaintiff is responsible, in whole or in part, for the injuries alleged because Plaintiff voluntarily and knowingly assumed the risk of the activities, and therefore, all claims resulting therefrom are barred. 8 51. Nothing Answering Defendants did or failed to do was the cause in fact or the proximate cause of any alleged injury or loss to Plaintiff. 52. Plaintiff's claims may be barred by the doctrines of assumption of the risk and contributory negligence or reduced by comparative negligence. 53. Plaintiffs Second Amended Complaint is barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, the relevant provisions of which are incorporated herein by referenced as though same were more fully set forth at length herein. 54. At all times material hereto, Answering Defendants provided treatment in accordance with the applicable standard of medical care at the time and place of treatment. 55. Plaintiff failed to mitigate any damages allegedly sustained. 56. Plaintiffs claims and/or request for damages herein are limited and/or precluded by the doctrines of res iudicata and/or collateral estoppel. 57. Plaintiffs claims may be barred by the applicable statute of limitations. 58. Plaintiff has failed to plead facts sufficient to toll the applicable statute of limitations. 59. Plaintiff s cause of action may be barred by the equitable doctrine of laches. 60. To the extent that discovery and/or investigation may reveal, Plaintiff has granted accord and satisfaction to a judgment thereby barring a subsequent suit against any other defendant for the same injuries. 61. In accordance with Pennsylvania law, including the Medical Care Availability and Reduction of Error Act, Plaintiff shall have no right to recover any amount, which was paid by a collateral source of compensation or benefits. 9 62. Plaintiff may have entered into a release which has the effect of discharging Answering Defendants from this matter. 63. Upon information and belief, certain of Plaintiff's bills for which Plaintiff seeks to recover in this action that were paid or are payable under accident and health insurance, Blue Cross and Blue Shield, Worker's Compensation insurance, or other insurance. 64. Plaintiff shall have no right to recover for any amount which was paid by a private, public, or gratuitous collateral source of compensation or benefits under such as instituted or amended by the Pennsylvania Medical Care Availability and Reduction of Error (MCARE) Act. 65. Plaintiff s claims and/or request for damages is barred or limited by the provisions of the Medical Care Availability and Reduction of Error (MCARE) Act, Act. No. 13, House Bill No. 1802, 2202 Pa. ALS 13; 2002, Pa. Laws 13; 2001 Pa. HB 1802, as amended. 66. By way of further answer, Answering Defendants specifically reserve the right to plead hereafter as further New Matter those additional affirmative defenses, including, without limitation, those set forth in Pa.R.Civ.P. 1030, that continuing investigation, discovery in accordance with court rules, and the introduction of evidence at trial may render applicable to claims and causes of action declared upon Plaintiff in the Complaint. WHEREFORE, Defendant, Wesley Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C. denies that Plaintiff is entitled to the relief requested or any relief whatsoever and demands that judgment be entered in its favor and against the Plaintiff and that it be awarded appropriate costs and fees. 10 Respectfully submitted, DICKIE, MCCAMEY 8j-CHILCOTE, P.C. Date: May 1, 2006 By: Francis s all, r., Esquire Supreme rt I. D. #27594 Aaron S. Jayman, Esquire Supreme Court 1. D. #85651 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, WesleyD. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P.C. 11 TDC105 I, Wesley D. Vander Ark, M.D., hereby verify that the averments set forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: Z ? '' Wesley D. ander Ark, M.D., Individually and on behalf of ENT Facial Plastic Surgery Group, P.C. CERTIFICATE OF SERVICE AND NOW, this 1 st day of May, 2006, I, Aaron S. Jayman, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record or parties involved by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110-1250 4 f?? Aaron S. Ja 12 T } l j )'Tt Iy. i r' PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney x{21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Attorneys for Plaintiffs, Joseph P. Martinec JOSEPH P. MARTINEC, Plaintiff, V. WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 - 1626 CIVIL - MM CIVIL ACTION - LA W JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER FILED BY DEFENDANTS NOW COMES, Plaintiff, Joseph P. Martinec ("Mr. Martinec"), by and through his attorneys, Peters & Wasilefski, and files this Reply to New Matter filed by Defendants, Wesley D. Vander Ark, M.D. ("Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), as follows: 1. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 49 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that he has not stated a claim upon which relief can be granted. To the contrary, Plaintiff, Mr. Martinec's, Complaint clearly states a claim for medical negligence upon which relief should be granted. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 2. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 50 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that he assumed the risk of receiving medical care that fell below the standard of care required under the circumstances. To the contrary, Plaintiff, Mr. Martinec, did not assume any risk under the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 3. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 51 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that the actions or inactions of the Defendants were not the cause in fact or the proximate cause of Plaintiff's injuries. To the contrary, Plaintiff, Mr. Martinec, incorporates his Second Amended Complaint in support of the conclusion that Defendants actions and/or inactions were the cause in fact and proximate cause of Plaintiff's injuries and damages. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 4. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 52 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, 2 Martinec, specifically denies that any of his claims are barred by the doctrines of assumption of risk or contributory negligence. To the contrary, Plaintiff, Mr. Martinec's, is advised and therefore avers that the doctrines of assumption of risk and contributory negligence are not applicable under the facts and circumstances of this case. Further, Plaintiff, Mr. Martinec, neither assumed the risk nor was contributory negligent under the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 5. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 53 of the New Matter filed by Defendants. The allegations contained in said paragraph are incomprehensible; and therefore, difficult to answer in its current form. To the extent that Plaintiff, Martinec, understands said allegations, he is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that the allegations contained in the Second Amended Complaint are barred or reduced by the Pennsylvania Comparative Negligence Act. To the contrary, under the facts and circumstances of this case, the Pennsylvania Comparative Negligence Act has no applicability. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 6. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 54 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that the treatment provided by Defendants was in 3 accordance with the applicable standard of care at the time and place of the treatment. To the contrary, the medical treatment provided by Defendants was below the standard of care required by the facts and circumstances of this case and is the basis for the claim that Defendants caused injury to Plaintiff, Mr. Martinec as a result of medical negligence. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 7. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 55 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that to the extent possible, he did not attempt to mitigate his damages. To the contrary, Plaintiff, Mr. Martinec, to the extent possible, took all measures to mitigate his damages. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 8. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 56 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that the doctrines of res judicata and/or collateral estoppel have any applicability to this case. To the contrary, the doctrines of res judicata and/or collateral estoppel have no factual and/or legal application to the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 4 9. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 57 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that a defense related to the statute of limitations applies to the facts and circumstances of this case. To the contrary, Plaintiff, Mr. Martinec's, legal action was timely filed and the statute of limitations has no applicability to this matter. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 10. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 58 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that his Complaint does not state sufficient facts to toll the statute of limitations. To the contrary, Plaintiff, Mr. Martinec's, Complaint clearly states sufficient facts to demonstrate that the statute of limitations has no application to this case as a defense. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 11. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 59 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that the doctrine of latches has any applicability to the 5 facts and circumstances of this case. To the contrary, the equitable doctrine of laches has no application to the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 12. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 60 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that the doctrine of accord and satisfiction has any applicability to the facts and circumstances of this case. To the contrary, the doctrine of accord and satisfaction has no application to the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 13. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 61 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that he the legal concepts as described in said paragraph have any applicability to the facts and circumstances of this case. To the contrary, the collateral source rule as set forth in the Medical Care Availability and Reduction of Error Act has no application to the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 6 14. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 62 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that he had entered into a release that would discharge the liability of Defendants under the facts and circumstances of this case. To the contrary, Plaintiff, Martinec, did not enter into a release or any other written document that would discharge the liability of Defendants under the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 15. Plaintiff, Mr. Martinec, admits that some of his medical bills that were incurred as a result of injuries caused by the negligent medical treatment provided by Defendants were paid by health care insurance and he is entitled to recover said medical bills incurred and paid by health care insurance. 16. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 64 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that the Medical Care Availability and Reduction of Error Act affects Plaintiff's ability to recover for medical expenses incurred by Plaintiff for the treatment of injuries sustained as a result of Defendants medical negligence in providing medical care and treatment that fell below the standard of care required under the facts and circumstances of this case. To the contrary, the Medical Care Availability 7 and Reduction of Error Act does not affect the ability of Plaintiff to recover for reasonable medical expenses incurred as a result of Defendants medical negligence in providing medical care that fell below the standard of care required under the facts and circumstances of this case. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 17. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 65 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that his claim for damages is barred or limited by the provisions of the Medical Care Availability and Reduction Act. To the contrary, the provisions of the Medical Care Availability and Reduction Act do not bar or limit Plaintiff's claims or ability to be compensated for the Defendants medical negligence, which caused all of Plaintiff's injuries and damages. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). 18. Plaintiff, Mr. Martinec, denies the allegations contained in Paragraph 66 of the New Matter filed by Defendants. Plaintiff, Mr. Martinec, is advised and therefore avers that said allegations are conclusions of law to which no further answer is required. To the extent that an answer may be necessary, Plaintiff, Martinec, specifically denies that Defendants have any right to plead additional defenses after this response. To the contrary, upon the filing of this pleading, all pleadings are closed and Defendants have no further right to plead any additional defenses and has 8 waived any defense not pled in the Answer with New Matter. In further answer, Plaintiff, Mr. Martinec, denies said allegations pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Plaintiff, Martinec, demands that the defenses raised on New Matter by Defendants be denied and stricken as having no meritorious basis and that Judgment be entered in favor of Plaintiff, Martinec, based upon the allegations contained in the Complaint. PETERS & WASILEFSKI B Charles E. Wasilefski Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [7171238-7555, Ext. 110 Attorney for Plaintiff, Joseph P. Martinec Date: May 8, 2006 9 VERIFICATION I hereby affirm that the following facts are correct: I, Joseph P. Martinec am the Plaintiff in the foregoing action and the attached Reply to New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation of the prosecution of the lawsuit. The language of the Reply to New Matter is that of counsel and not of me. I have read the Reply to New Matter and to the extent that the Reply to New Matter is based upon 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 Reply to New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Reply to New Matter are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. -, a . P, V"? oseph P. Martinec Date Q CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a legal assistant in the law offices of Peters & Wasilefski, have this \S day of , 2006, served a true and correct copy of the foregoing PLAINITFF'S Lp?-Lo NEW MATTER FILED BY DEFENDANTS upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum r? `7 i _ rQ L i 1 1 s -y t_a,? a Joseph P. Martinec vs Case No. 2005-1626 Wesley D. Vander Ark, M.D., et al. Statement of Intention to Proceed To the Court: Plaintiff, Joseph Martinec intends to proceed with the above captioned matter. Print Name Charles E. Wasilefski Sign Name Date: 8/31/09 Attorney for Plaintiff Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system.' The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do. not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. .- - CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a legal assistant in the law , 2009, offices of Peters & Wasilefski, have this D_ day of Ro??\'?z - served a true and correct copy of the foregoing STATEMENT OF INTENTION TO PROCEED upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum 4W,4r. FILED-,0%-'FiGE OF THE P }? 7-,0 ,`) ARY 2009 SEP --3 PH 3: 11 DICKIE, MCCAMEY & CHILCOTE, P.C. BY: Francis E. Marshall, Jr., Esquire ATTORNEY I.D. NO. 27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803 (Fax) JOSEPH P. MARTINEC, Plaintiff V. WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C, Defendants ATTORNEY FOR DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, r-, CZ3 PENNSYLVANIA r, NO. 2005-1626 CIVIL ACTION -MEDICAL {> r ri cp - JURY TRIAL DEMANDED -ri rig ?i NOTICE OF DEATH OF PLAINTIFF. JOSEPH P. MARTINEC TO THE PROTHONOTARY: Pursuant to Pennsylvania Rule of Civil Procedure 2355, the death of Joseph P. Martinec, party Plaintiff in the above-captioned matter, during the pendency of this action is noted upon the record. Date: February 25, 2010 Respectfully submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. By: F,rincis . Marshall, Jr., Es uire t2907'amp prCourt I. D. #277%4 Hill Bypas ,Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants CERTIFICATE OF SERVICE AND NOW, February 25, 2010, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) Francis E. Marshall, Jr., Esquire CA FILED-OFFICE IF THc 7TH DTARY PRAECIPE FOR LISTING CASE FOR TRIAL 2010 APR 21 AM I I : 24 (Must be typewritten and submitted in triplicate) CuMEw:- A."i , (;Qum TO THE PROTHONOTARY OF CUMBERLAND COUNTY PEP'S SYI.VA,NIA. Please list the following case: ?X for JURY trial at the next term of civil court. ? for trial without a jury. ------------------------------------------------------------------------------------------------------------ CAPTION OF CASE (entire caption must be stated in full) (check one) ?X Civil Action -Law ? Appeal from arbitration Joseph P. Martinet (Plaintiff) vs. Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C. (Defendant) vs. (other) The trial list will be called on 6 / 1 / 20'10 and Trials commence on 6/21/2010 Pretrials will be held on 6/9/2010 (Briefs are due 5 days before pretrials 1626 2005 No. Term Indicate the attorney who will try case for the party who files this praecipe: Francis E. Marshall, Jr., Esq., 1200 Camp Hill Bypass, Camp Hill, PA 17011 (Counsel for Defenc Indicate trial counsel for other parties if known: Charles E. Wasilefski, Esquire, 2931 N. Front St., Harrisburg, PA 17110 (Counsel for Plaintiff) This case is ready for trial. Signed: Date: 4/14/2010 Francis E. Marshall, Jr., Print Name: Attorney for: Defendants *a5. 0o p0 ATTY &*o=Ilo P,4aua$5(0 FILED-9FICE OF THE PRO WNCTAPY 2018 APR 21 AM 11: 36 i' NIZ'AY/kNIA PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 Alex M. Hvizda, Esquire Attorney ID #306565 2931 North Front Street Harrisburg, PA 17110-1250 17171238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW WESLEY D. VANDER ARK, M.D., : No. 2005-1626 And ENT FACIAL PLASTIC SURGERY GROUP, P.C., . Defendants : JURY TRIAL DEMANDED NOTICE OF DEATH The death of Joseph P. Martinec, a party to the above action, during the pendency of this action is noted upon the record. Date: April 19, 2010 PETERS & WASILEFSKI 13y: Charles E. W rile ski Attorney ID #21027 Alex M. Hvizda Attorney ID #306565 2931 North Front Street Harrisburg, PA 17110-1250 [717] 238-7555, Ext. 110 Attorney for Plaintiff REGISTER OF WILLS OF DAUPHIN COUNTY, PENNSYLVANIA SHORT CERTIFICATE -LETTERS TESTAMENTARY File No: 2210-0278 COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF DAUPHIN I, Sandra C. Snyder, Register of Wills in and for the County of Dauphin, in the Commonwealth of Pennsylvania, DO HEREBY CERTIFY that on March 19, 2010 LETTERS TESTAMENTARY on the Estate of JOSEPH P. MARTINEC, deceased, were granted to GRACE M. MARTINEC having first been qualified well and truly to administer the same. And, I further certify that no revocation of said Letters appears of record in my office. Date of Death January 16, 2009 Given under my hand and seal of office this Social Security No. 211-22-0954 22nd day of March, 2010 (? j?vr?dt a, ?. jk-dF.f' Register NOT VALID WITHOUT IMPRESSED SEAL EXPIRES 60 DAYS FROM DATE OF ISSUANCE FILED°v,=kGE OF THE F'ir-ruT! ?",07 TAR.Y PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 Alex M. Hvizda, Esquire Attorney ID #306565 2931 North Front Street Harrisburg, PA 17110-1250 1717238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff 2010 APR 21 AM 11: 36 CiUmb EEP4 NSYLVA : A : IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, : PENNSYLVANIA VS. CIVIL ACTION -LAW WESLEY D. VANDER ARK, M.D., No. 2005-1626 And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE PARTY TO: THE PROTHONOTARY, CUMBERLAND COUNTY, PA: Kindly substitute "GRACE M. MARTINEC, as the Personal Representative of the ESTATE OF JOSEPH P. MARTINEC", as plaintiff in the above-referenced matter. Please also see the attached stipulation of counsel. PETERS & WASILEFSKI By: 1)?.. . ID #21027 Alex M. Hvizda Attorney ID #306565 2931 North Front Street Harrisburg, PA 17110-1250 [717] 238-7555, Ext. 110 Attorney for Plaintiff - .11 /j, Charles Attorney E. silefski Date: April 19, 2010 F41S3-C1r 1Cc f= ! i k' ' TAF?'f (T THEE PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID' #21027 2931 North Front Street Harrisburg, PA 17110-1250 17171238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff VC. 2010 APR 21 AM 11: 36 PENM)YLVAN A IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW WESLEY D. VANDER ARK, M.D., No. 2005-1626 And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants JURY TRIAL DEMANDED STIPULATION OF COUNSEL AND NOW, the above-captioned parties, by and through their counsel of record, hereby agree and stipulate to substitute "GRACE M. MARTINEC, as the Personal Representative of the ESTATE OF JOSEPH P. MARTINEC" as Plaintiff in the above- referenced matter. PETERS & WASILEFSKI Date: 3 2010 By: Charles. Wasilefski Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [717] 238-7555, Ext. 110 Attorney for Plaintiff DICKIE, MCCAMEY & CHILCOTE, P.C. Date: Q By: Francis E. Ma all, Jr., Esquire Attorney- ID #27594 12'00 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 [717] 731-4800 Attorney for Defendants RLED-v 7r_CE UP THE PFggj,0.,1(TApY 1010 APR 21 AM 11: ,36 JOSEPH P. MARTINEC, Plaintiff VS. WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants P6?J?15Y(-Vr`:A : IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : No. 2005-1626 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Death, Praecipe to Substitute Party, Stipulation of Counsel and Letters Testamentary has been served on all parties of interest by placing the same in the United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this P" day of April, 2010, and addressed as follows: Francis E. Marshall, Jr., Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Peters & Wasilefski 684227 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: `~. for JURY trial at the next term of civil court. ^ for trial without a jury. -------------------------- CAPTION OF CASE ~/~ (entire caption must be stated in full) (check one) Joseph P. Martinec, evil Action -Law (Plaintiff) Appeal from arbitration vs. (other) Wesley D. Vander Ark, M.D., and ENT Facial Plastic Surgery Group, P.C., (Defendant) The trial list will be called on 8/31/2010 and Trials commence on September 20, 2010 Pretrials will be held on September 8, 2010 Briefs are due 5 days before pretrials No. 2005-1626 -Civil Term Indicate the attorney who will try case for the party who files this Praecipe: ~ a =} i Francis E. Marshall, Jr., Esquire -for Defendants T, ~~- iTl l- ~ ~. T .:. i=j =~ ,--~ 1200 Camp Hill Bypass, Suite 205, Camp Hill, PA 17011 r, ~' w r -- -~,; ,_ Indicate trial counsel for other parties if known: _ .. = ' , . Charles E. Wasilefski, Esquire :~ .~ cR r.. ~,y; 2931 North Front Street, Harrisburg, PA 17110-1250 This case is ready for trial. Sign ture Francis E. Marshall, Jr., Esquire Print your name Date: 7/20/2010 Francis E. Marshall, Jr., Esquire Attorney for Defendant Wesley D. Vander Ark, M.D. & ENT Facial Plastic Surgery Group, P.C. ~°~ ~~ y~' DICKIE, MCCAMEY & CHILCOTE, P.C. BY: Francis E. Marshall, Jr., Esquire ATTORNEY I.D. NO. 27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803(Fax) JOSEPH P. MARTINEC, Plaintiff, V. WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C, Defendants AT'T'ORNEY FOR: DEFENDANTS WESLEYD. VANDER ARK M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1626 ., _ CIVIL ACTION MEDICAL JURY TRIAL DEMANDED Zi DEFENDANTS' MOTION IN LIMINE TO PRECLUDE CORPORATE NEGLIGENCE CLAIM AGAINST ENT FACIAL PLASTIC SURGERY GROUP, P.C. AND NOW, comes Defendants, by and through their counsel, Dickie, McCamey & Chilcote, P.C., and move this Court to preclude Plaintiff from pursuing a corporate negligence claim against ENT Facial Plastic Surgery Group, P.C. at trial, and aver as follows: According to Plaintiff's Pre-Trial Conference Memorandum, Plaintiff intends to pursue a direct corporate negligence claim at trial against ENT Facial Plastic Surgery Group, P.C., which is Dr. Vander Ark's physician practice group. 2. First and foremost, the Pennsylvania Supreme Court has specifically declined to extend the corporate negligence principles of Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991) to physician practice groups. See, Sutherland v. Monogahela Valley Hospital, 856 A.2d 55 (Pa. Super. 2004). In rejecting the extension of the theory of corporate negligence to physicians' offices, the Superior Court stated as follows: "We note that the policy considerations underlying the Pennsylvania Supreme Court's creation of the theory of corporate liability for hospitals are not present in the situation of' a physicians' office. In Thompson, the Supreme Court recognized. that `[t]he corporate hospital of today has assumed the role of a. comprehensive health center with responsibility for arranging and coordinating the total healthcare of its patients.' Thompson, supra at 706. The same cannot be said for a physicians' practice group." Sutherland, supra at 61-62. 3. Moreover, in Angeloff v. Armstrong, et al., Cumberland County Docket No. 2004-4743, a panel consisting of Judges Hoffer, Oler and Guido, sustained a defendant physician group's preliminary objections and refused to extend the theory of corporate negligence to a physician practice group based on the Superior Court's holding in Sutherland. A copy of the opinion and order are attached as Exhibit "A." 4. Specifically, the panel of this Court stated: "In the recent case of Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa.Super. 2004), the Superior Court refused to extend the theory of corporate negligence to physician practice groups. Consequently, we must sustain the demurrer to the claim of corporate negligence against Medical Arts Allergy, P.C." 5. Therefore, Plaintiff cannot pursue a direct corporate negligence claim at trial against ENT Facial Plastic Surgery Group, P.C. Both our Superior Court and this Court have rejected corporate negligence claims against physician practice groups such as ENT Facial Plastic Surgery Group, P.C. 6. Additionally, in addition to not being a viable cause of action under Pennsylvania law, Plaintiff did not plead a corporate negligence claim in the Second Amended Complaint, which makes Plaintiff's representation in the Pre-Trial Memorandum even more curious. Plaintiff's Second Amended Complaint only asserts a vicarious liability claim against ENT Facial Plastic Surgery Group, P.C. A copy of the Second Amended Complaint is attached as Exhibit "B." This theory would obviously be at variance with the pleadings and not permissible assuming it was a viable claim at all which it is not. 7. Finally, Plaintiff's expert, Dr. Falk, opinion is limited to the alleged negligence of Dr. Vander Ark (which is specifically denied). Dr. Falk's opinion is silent as to any alleged negligence of ENT Facial Plastic Surgery Group, P.C. A copy of Dr. Falk's report is attached hereto as Exhibit "C." WHEREFORE, it is respectfully submitted that this Court preclude Plaintiff from pursuing a direct corporate negligence claim at trial against ENT Facial Plastic Surgery Group, P.C. Respectfully Submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. Date: September 71 2010 By: Francis E. Marshall, Jr., Esquire ATTORNEY I.D. NO. 27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attornev for Defendants, ResleVD. k'ander Ark M. D., and EN7'Facial Plastic Surgery, Group, P. C. 0 E FRANCES M. ANGELOFF, IN THE COURT OF COMMON PLEAS OF Individually and as Administratrix CUMBERLAND COUNTY, PENNSYLVANIA Of the Estate of SELENA M. ANGELOFF, deceased : V. JACK L. ARMSTRONG, M.D., NO. 2004 - 4743 CIVIL TERM et al : PRELIMINARY OBJECTIONS OF DEFE JACK L. ARMSTRONG. M. D., M, MONTELLO. M. D. AND MEDICAL ARTS. ALLERGY, P.C. BEFOILHOFFER. P.J.. OLER, GUIDO, JT OPINION AND ORDER OF COURT Defendants have filed numerous preliminary objections. For the reasons hereinafter set forth we will 1) grant the objections to the claim for punitive damages and to the claim based upon the theory of corporate negligence and 2) dismiss the preliminary objection to the claim for damages in the wrongful death action. The remaining preliminary objections will be dismissed without discussion. The tragic incident giving rise to this action occurred on August 14, 2003. Defendants had developed an anti-allergy regimen for plaintiff's decedent approximately 9 months earlier. Pursuant to that regimen she had received a series of allergy specific immunotherapy shots in progressively larger dosages. The shots were typically administered by nurse practitioner Defendant Jodi Johnson. On August 14, 2003, nurse practitioner Johnson administered a shot and left plaintiff's decedent sitting alone in the examination room. Within a few minutes she emerged with signs of an allergic reaction to the shot. The nurse immediately NO. 2004 - 4743 CIVIL TE&M The above allegations amount to no more than negligence or gross negligence. They do not evidence "an evil motive or reckless indifference to the rights of others". Therefore, the claim for punitive damages cannot stand. Corporate Negligence In Thompson v. Nason Hospital, 27 Pa. 330, 591 A.2d 703 (1991) the Pennsylvania Supreme Court adopted a "corporate negligence" theory of liability for hospitals. As the Supreme Court stated: Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital, This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party. 591 A.2d at 707. In the recent case of Sutherland v. Monongahela Valley Hospital, 856 A. 2d 55 (Pa. Super. 2004) the Superior Court refused to extend the theory of corporate negligence to physician practice groups. Consequently, we must sustain the demurrer to the claim of corporate negligence against Defendant Medical Arts Allergy, P.C.' Wrongful Death Damages in paragraph 92 of the complaint plaintiff avers the following: Plaintiff claims on behalf of the above statutory beneficiary(ies), all damages available under the Pennsylvania Wrongful Death Act, such as pecuniary losses, loss of society, tutelage, advice, assistance and counsel, funeral and/or burial expenses, as well as costs of administration. 1 We note that plaintiffs have pled a valid claim against Defendant Medical Arts Allergy, P.C. based upon its vicarious liability for the acts of its employees. That claim is not affected by this decision. N0.2004 - 4743 CIVIL. TERM The statutory beneficiary is identified as the decedent's nine year old son.z Defendants object to the claim for "loss of society, advice and assistance and counsel.i3 To the extent that the plaintiffs' claim includes the type of loss of comfort and society normally associated with a loss of consortium claim, defendant is correct. Pennsylvania does not recognize a claim for "loss of parental consortium". Machado v. Kunkel, 804 A.2d 1238, 1245. However, as the Machado court also stated: Under Pennsylvania law, a child can recover in a wrongful death action for the loss of companionship, comfort, society and guidance of a parent. This element of damages had also been described as "loss of guidance, tutelage, and moral upbringing." 804 A.2d at 1245 quoting from Walton v. Avco Corp., 383 Pa.Super. 518 557 A.2d 372, 388 (1989). (citations omitted). Therefore, defendants' objection must fail. ORDER OF COURT AND NOW, this 13TH day of MAY, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. The Preliminary Objections to the claim for punitive damage and corporate negligence are GRANTED. The remaining preliminary objections are DENIED. By the Court, Isl Edward E. Guido Edward E. Guido, J. Peter M. Villari, Esquire Paul D. Brandes, Esquire Marianne K. Currie, Esquire Leigh A.J. Ellis, Esquire Francis E. Marshall, Esquire Thomas M. Chairs, Esquire Z Complaint, paragraph 5. ' See Preliminary Objections, paragraph 44. 4 PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney ID #21027 2931 North Front Street Harrisburg, PA 17110-1250 [717] 238-7555 Attorney for Plaintiff JOSEPH P. MARTINEC, Plaintiff : IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, : PENNSYLVANIA VS. CIVIL ACTION - L AW WESLEY D. VANDER ARK, M.D., No. 05-1626 CIVIL -MM And ENT FACIAL PLASTIC SURGERY GROUP, P.C., . Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [717] 249-3166 800-990-9108 AVISO LISTED HA SIDO DEMANDADIO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes pdginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defenses de, y objeciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABORGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania 17013 [717] 249-3166 800-990-9108 r . ?U PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney x/21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Attorneys for Plaintiffs, Joseph P. Martinec JOSEPH P. MARTINEC, Plaintiff, V. WESLEY D. VANDER ARK, M.D., And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 - 1626 CIVIL - MM CIVIL ACTION - LA W JURY TRIAL DEMANDED SECOND AMENDED COMPLAINT NOW COMES, Plaintiff, Joseph P. Martinec ("Mr. Martinec"), by and through his attorneys, Peters & Wasilefski, and files this Amended Complaint against Defendants, Wesley D. Vander Ark, M.D. ("Vander Ark") and ENT Facial Plastic Surgery Group, P.C. ("ENT Group"), as follows: 1, Plaintiff, Mr. Martinec, is an adult individual who currently resides at 3517 Belair Road, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, Vander Ark, is an adult individual, and a licensed professional, who, currently has offices and a place of business at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. At all times relevant, Defendant, Vander Ark, was licensed to practice medicine in the Commonwealth of Pennsylvania. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant. 3. Defendant, ENT Group, is a corporation organized and registered in the Commonwealth of Pennsylvania for the purpose of providing medical services to patients with its office and principle place of business located at 1815 Center Street, Camp Hill, Cumberland County, Pennsylvania. Defendant, ENT Group, is a professional corporation that has been organized for the purpose of providing and maintaining facilities and professional and/or paraprofessional personnel for the medical and surgical care and treatment of patients. Said Defendant, ENT Group, specifically provides medical and surgical services related to the ear, nose and throat. Defendant, ENT Group, employs other professional and/or paraprofessional staff to provide assistance to the physicians and physician's assistants in the medical care and treatment of patients and in the performance of surgery and post-surgical care. Plaintiff, Mr. Martinec, is asserting a professional liability claim against this defendant, as more specifically set forth in Counts II and III below. 4. Plaintiff, Mr. Martinec, was first seen at Defendant, ENT Group, by Defendant, Vander Ark, on or about February 10, 2003. with complaints of chronic hearing loss in his left ear. 5. On or about February 10, 2003, Defendant, Vander Ark, saw Plaintiff, Mr. Martinec, and performed a physical examination and audiogram and rendered the following assessment: Flaccid tympanic membrane with incus-stapedial Joint erosion and stapedial pexy and mixed conductive hearing loss in the left ear. 2 A: Jo He also has an effusion on that side and sinonasal polyps. 6. On or about February 10, 2005, Defendant, Vander Ark, recommended that Plaintiff, Mr. Martinec, have a CT scan of the sinuses and his left temporal bone to rule out cholesteatoma in that ear. 7. On or about February 18, 2003, the CT scan was performed and the following interpretation of the CT Scan was rendered: Sinuses Pansinusitis with probable sino-nasal polyposis. Coronal images only were performed through the paranasal sinuses, as the patient was unable to comply with the supine positioning of the axial. Mastoid Concern for cholesteatoma on the left, with the floor of the middle cranial fossa appearing disrupted at the level of the mastoid air cells. 8. On or about February 21, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, who prescribed a repeat CT scan of Plaintiff, Mr. Martinec's, temporal bone and endoscopic sinus surgery to attempt to improve the Eustachian tube function prior to performing surgery on the ear. 9. At no time did Defendant, Vander Ark, discuss with Plaintiff, Mr. Martinec, any alternative conservative treatment for the sinuses nor any of the risks or complications of the proposed sinus surgery. Plaintiff, Mr. Martinec, was never apprised nor given the option of conservative medical care for his sinuses prior to surgery nor that the proposed surgery may cause brain damage. 10. On or about April 1, 2003, Plaintiff, Mr. Martinec, underwent 3 surgery of the anterior and posterior ethmoidectomy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy. 11. Following surgery, Plaintiff, Mr. Martinec, was allowed to wake up fully extubated and taken to the recovery room. He was discharged home on Dyazide. 12. Following discharge, it was noted that Plaintiff, Mr. Martinec, was unable to urinate so he was taken to the Emergency Room where a Foley catheter was placed and he was discharged from the Emergency Room with the instruction to follow up with the urologist in one week. 13. On or about April 2, 2003, Plaintiff, Mr. Martinec, was again seen by Defendant, Vander Ark, for a post operative follow up. Defendant, Vander Ark, examined Plaintiff, Mr. Martinec, and it was noted that the packs were in place and were removed, ethmoid bowls were clear and there was more crusting on the right side which was removed. Sepra Gel was placed bilaterally and Plaintiff, Mr. Martinec, was told to follow up in one week. 14. On or about April 4, 2003, two days following the first post operative visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, developed neck pain, headache and significant nasal drainage. He was becoming confused and was not eating as well as normal. 15. As a result of the symptoms described above in Paragraph 14, Mrs. Martinec telephoned Defendant, Vander Ark's, office and alerted them to the 4 symptoms and complaints of Plaintiff, Mr. Martinec. Defendant, Vander Ark, did not see Plaintiff, Mr. Martinec, as a result of this call. Mrs. Martinec was merely told to give Plaintiff, Mr. Martinec, Tylenol for his headache. No further recommendations were made. 16. Plaintiff, Mr. Martinec's, condition continued to become worse and on or about April 5, 2003, Mrs. Martinec again called Defendant, Vander Ark's, office and spoke to the answering service and again told them about Plaintiff, Mr. Martinec's, worsening symptoms and further expressed that she believed that such symptoms and complaints were the result of the surgery. Neither Mrs. Martinec nor Plaintiff, Mr. Martinec, received a call back. Plaintiff, Mr. Martinec, spent April 5 and April 6, 2003 in bed with ice packs on his head and was taking Tylenol every 4-6 hours for his headache. 17. On or about April 6, 2003, Plaintiff, Mr. Martinec's, condition deteriorated to the point that he was unable to get out of bed. Neither Defendant, Vander Ark, nor anyone from his office returned the call on this day. 18. Finally, on April 7, 2003, Defendant, Vander Ark's, office returned the call and informed Mrs. Martinec that there had been an appointment scheduled for Plaintiff, Mr. Martinec, to be seen at 8:30 a.m. Mrs. Martinec had not been previously informed of the alleged appointment. 19. However, on April 7, 2003, Plaintiff, Mr. Martinec, was seen by Defendant, Vander Ark, later that morning. At that time, Plaintiff, Mr. Martinec, was 5 accompanied by Mrs. Martinec and she informed Defendant, Vander Ark, that Plaintiff, Mr. Martinec, was confused, had difficulty walking, was experiencing nasal drainage and that he had complained of neck pain and headache for three days and that this had been reported to his office. At the time of this visit, Plaintiff, Mr. Martinec, had to be assisted into the office. 20. On April 7, 2003, Defendant, Vander Ark, performed a physical examination, endoscopic examination and debridement of the ethmoid bowls. With regard to the complaints of confusion, neck pain and headache, Defendant, Vander Ark, did nothing except indicated to Mrs. Martinec that if this persisted, she should take Plaintiff, Mr. Martinec, to the emergency room for evaluation and blood work. 21. Upon returning home after his visit with Defendant, Vander Ark, Plaintiff, Mr. Martinec, continued to experience confusion and weakness and Mrs. Martinec took him to the emergency room. 22. On April 7, 2003, Plaintiff, Mr. Martinec, was taken to the emergency room and admitted into the hospital with a diagnosis of: altered mental status, sepsis, urinary tract infection, and rule out meningitis. A CT scan of the brain showed that he had pneumocephalus and a lumbar puncture resulted in four samples containing blood. 23. Additional CT Scans were ordered and the CT Scan of the sinuses revealed a hole in the cruciform plate posteriorly and the posterieor superior ethmoid region, approximately 4mm anterior to the sphenoid. Plaintiff, Mr. Martinec, 6 was also noted to have increased air in his head and underwent ventriculostomy. 24. After being examined by the Emergency Room physician and the diagnosis of meningitis was made, Mrs. Martinec called Defendant, Vander Ark, and told him that Plaintiff, Mr. Martinec, had been diagnosed as having meningitis and that he was being admitted into the hospital. Defendant, Vander Ark, came to the Emergency Room but did not examine Plaintiff, Mr. Martinec. He did, however, indicate to Mrs. Martinec that "I must have nicked his sinus when I was cleaning it out." 25. The conditions described in the previous paragraphs were all caused by the negligent performance of the sinus surgery by Defendant, Vander Ark. 26. While in the hospital, on April 11, 2003, Plaintiff, Mr. Martinec, underwent nasal endoscopy and repair of the cerebral spinal fluid leak with turbinate graft. 27. Plaintiff, Mr. Martinec, remained hospitalized until May 30, 2003, when he was transferred to a rehab facility for rehabilitation necessitated by the brain injury sustained as a result of Defendant, Vander Ark, and Defendant, ENT Group, negligent and substandard medical care. 28. Plaintiff, Mr. Martinec, after being discharged from the hospital, was transferred to the Mechanicsburg Rehab Hospital where he was hospitalized for the period May 30, 2003 through July 16, 2003. At the rehab facility, he was given physical therapy to learn to walk, speech therapy, occupational therapy, and had to be 7 fed with a gastrostomy tube. He needed total rehabilitation. 29. Upon discharge from the rehab facility, Plaintiff, continued to receive care and treatment until August 27, 2003 at which time he had outpatient care at the rehab facility until October 30, 2003. 30. Upon his discharge on May 30, 2003, Plaintiff, Martinec, had the following discharge diagnosis: Meningitis, presumptively staph, following complex sinus surgery; Systemic Candidiasis; Methansone resistant staph aureus traceal aspirate; Pneumocephalus; Aspiration pneumonia, possible MRSA; Cerebrospinal fluid leak; placement of ventriculostomy to relieve air and act as a drain for possible stoppage of CSF leak. All of these conditions were legally caused by the negligent and substandard medical treatment that had been provided by Defendant, Vander Ark, and Defendant, ENT Group. 31. As a direct and proximate result of the negligent and substandard medical care and treatment provided by Defendant, Vander Ark, and Defendant, ENT Group, Plaintiff, Martinec, in addition to the injuries described above in Paragraph 27, suffered serious central nervous system infection resulting in frontal lobe dysfunction. This has left Plaintiff, Mr. Martinec, with significant mental and emotional dysfunctions, including but not limited to: inattention, lack of motivation, sleepiness and lack of energy and interests. 32. Defendant, Vander Ark, and Defendant, ENT Group, provided substandard medical care and treatment to Plaintiff, Mr. Martinec, that was below the 8 standard of care required for the appropriate treatment of Plaintiff, Mr. Martinec, resulting in the conditions described above. 33. As a direct and proximate result of the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, he has suffered permanent irreparable injury resulting in continued pain and discomfort, and restriction in activity. 34. Further, the careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, increased the risk of harm to him. 35. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff to incur substantial medical expenses in the past, present and the future and claim is made therefore. 36. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to be permanently disabled. 37. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to incur other miscellaneous expenses in an effort to live as normal a life as possible under the 9 circumstances and claim is made therefore. 38. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer a loss of income and a loss of earning capacity and claim is made therefore. 39. The careless and negligent manner in which the Defendants provided sub-standard medical care and treatment to Plaintiff, Mr. Martinec, as set forth at length below, is a substantial factor in causing Plaintiff, Mr. Martinec, to suffer in the past, present and future great mental and physical pain and suffering, great inconvenience and an inability to carry out his normal daily activities, great embarrassment and humiliation and loss of life's pleasures and enjoyment, and claim is made therefore. COUNTI JOSEPH P. MARTINEC V WESLEY D. VANDER ARK M.D. MEDICAL MALPRACTICE 40. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 36 above as if fully rewritten herein. 41. Plaintiff, Mr. Martinec, believes and therefore avers that his injuries and damages were the direct and proximate result of the negligent and careless conduct of Defendant, Vander Ark, which conduct falls below the standard of care required under the facts and circumstances of this case as follows: 10 a. Failing to evaluate Plaintiff, Mr. Martinec's, condition and to provide proper treatment or involve a physician experienced with treating Plaintiff's condition; b. Failing to advise and prescribe to Plaintiff, Mr. Martinec, alternative conservative medical treatment for any sinus condition that he had that could have and should have been used prior to surgical treatment prescribed by Defendant, Vander Ark. c. Performing the sinus surgery without using medical treatment as a first option; d. Failing to warn Plaintiff, Mr. Martinec, of the complications that could occur as a result of the sinus surgery, including but not limited to puncturing the wall of the sinus allowing spinal fluid to leak, causing infection into the brain that would cause brain injury; e. Failing to take the necessary precautions to protect Plaintiff, Mr. Martinec, from infection that resulted in the brain injury; f. Recommending surgery that was neither indicated or necessary; g. Performing sinus surgery that was not indicated and not necessary since Plaintiff, Mr. Martinec, was asymptomatic 11 regarding his sinuses; h. Negligently performing the sinus surgery: i. Negligently recommending and performing the sinus surgery and follow up care without consulting a physician or other specialist and without prescribing antibiotic therapy to prevent infection following the procedure when he knew that doing so would increase the risk to Plaintiff, Mr. Martinec, and expose him to life threatening conditions and brain damage; j. Negligently recommending and performing the sinus surgery when he knew or should have known that it would increase the risk of injury to Plaintiff, Mr. Martinec; k. Failing to return telephone calls from Plaintiff, Mr. Martinec, following sinus surgery when neurological symptoms were being performed thereby increasing the risk that Plaintiff, Mr. Martinec, would be subjected to life threatening conditions and brain damage; 1. Failing to see and examine and provide definitive treatment to Plaintiff, Mr. Martinec, at a time when the life threatening condition and brain injury could have been prevented; in. Negligently failing to promptly recognize the complications of the sinus surgery and not instituting prompt treatment thereby increasing the risk that Plaintiff, Mr. Martinec, would be 12 exposed to life threatening conditions and brain damage; n. Failing to properly care and treat Plaintiff, Mr. Martinet, for the obvious conditions that resulted from Defendant, Vander Ark, negligently puncturing the sinus cavity allowing infection to occur in the central nervous system by not providing proper care and treatment at a time when he knew or should have known that improper treatment would increase the risk of developing life threatening conditions and brain injury; o. Failing to possess adequate knowledge, training and experience to treat Plaintiff, Mr. Martinet, once obvious neurological symptoms developed as a result Defendant, Vander Ark, negligently puncturing the sinus cavity so that prompt and appropriate treatment could be administered at a time that the risk of injury could have been lessened; p. Failing to obtain appropriate consultation in a timely fashion prior to commencing treatment that was contraindicated for Plaintiff, Mr. Martinet's, condition and/or continue a course of treatment when it became apparent that such treatment was increasing the risk of life threatening conditions and Plaintiff's condition was deteriorating; and 13 q. Failing to or delaying the transfer of Plaintiff, Mr. Martinec, to the care of physicians who had sufficient knowledge, education and experience to diagnose and treat his condition. 42. Defendant, Vander Ark's, negligent and careless actions in providing substandard care and treatment of Plaintiff, Mr. Martinec, resulted in his sustaining brain injury and conditions related to the brain injury. Defendant, Vander Ark, is liable for all subsequent consequences of his negligent and careless sub-standard care and treatment that he provided to Plaintiff, Mr. Martinec. The negligent and careless sub-standard care and treatment provided by Defendant, Vander Ark, is a substantial factor and legal cause of Plaintiff's injuries and damages as more fully set forth above; and/or increased the risk that Plaintiff, Mr. Martinec, would suffer such injuries and damages. 43. Additionally, Plaintiff, Mr. Martinec, was not given the opportunity to fully assess the risks involved in the procedure and therefore did not give a fully informed consent to the procedure resulting in Defendant, Vander Ark, committing a battery upon the person of Plaintiff, Mr. Martinec, causing him severe injury for which Defendant, Vander Ark, is liable. Plaintiff, Mr. Martinec, was injured and damaged as more fully set forth in the previous paragraphs and claim is made therefore. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, Vander Ark, in an amount in excess of Fifty Thousand Dollars 14 ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II JOSEPH P. MARTINEC V. ENT FACIAL PLASTIC SURGERY VICARIOUS LIABILITY 44. Plaintiff, Mr. Martinec, incorporates the allegations contained in Paragraphs 1 through 39 above as if fully rewritten herein. 45. At all times material hereto, Defendant, ENT Group, employed physicians, physicians' assistants, nurses and other professionals and paraprofessionals, including but not limited to Defendant, Vander Ark, and the employees and agents related to Defendant, ENT Group, call service, and the nurses and clerical employees responsible for the communications with Plaintiff, Mr. Martinec, and/or his wife regarding the medical and surgical care and treatment described above, to provide and/or assist in providing medical and surgical care and treatment to patients of Defendant, ENT Group. Specific names of the individuals involved are not now known but will be identified through discovery and further investigation. 46. At all times material hereto, Defendant, ENT Group, acted through its agents, ostensible agents, servants, and/or employees, as described above in Paragraph 45, and is responsible for all actions or inactions of said agents, ostensible agents, servants, and/or employees and is vicariously liable for all of their negligence and carelessness, including that of Defendant, Vander Ark, as described above. 15 4 ) 1 47. Defendant, ENT Group, through its agents, ostensible agents, servants and employees, as described above in Paragraph 45, was otherwise careless and negligent as may be determined after discovery is complete in this case. 48. As a result of the negligent and careless medical care and treatment rendered by the agents, ostensible agents, servants and employees of Defendant, ENT Group, as described above in Paragraph 45, said Defendant, ENT Group, is vicariously liable for all of Plaintiff's injuries and damages. WHEREFORE, Plaintiff, Mr. Martinec, demands judgment in his favor and against Defendant, ENT Group, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. PETERS & WASILEFSKI By: Charles E. Wasilefski, Esquire Attorney #21027 2931 North Front Street Harrisburg, PA 17110 [717] 238-7555 Ext. 110 Attorneys for Plaintiff, Joseph P. Martinec Date: March 23, 2006 16 VERIFICATION I hereby affirm that the following facts are correct: I, Joseph P. Martinec am the Plaintiff in the foregoing action and 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 the prosecution of the 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 upon 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. Section 4904 relating to unsworn falsification to authorities. C- Joseph P. artinec Date: -? 1 CERTIFICATE OF SERVICE This is to certify that I, Pamela J. Crum, a legal assistant in the law offices of Peters & Wasilefski, have this day of N\?Ias , 2006, served a true and correct copy of the foregoing SECOND AMENDED COMPLAINT upon all parties by depositing same in the United States mail, first class, postage prepaid, addressed to the counsel of record as follows: Francis E. Marshall, Jr. DICKIE, MCCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Pamela J. Crum 1? i ? ? "1iV l? .1 Stephen A. Falk, MID, FACS Clinical Professor of Surgery University of Rochester School of Medicine Fellow: American College of Surgeons American Head and Neck Society President- Thyroid Medical Associates Editor. Thyroid Disease Consultant- Medical malpractice Surgical instrumentation 350 Sandringham Road Rochester, New York 14610 March 24, 2005 Charles E. Wasilefski Peters & Wasilefski 2931 North Front St. Harrisburg, PA 17110-1250 585 381 0231, e-mail: stalk arochester.rr.com Re: plaintiff, Joseph Martinec v Dr. Wesley Vander Ark Dear Mr. Wasilefski: I have reviewed the medical records of Joseph Martinec. Mr. Martinec, a 72 year old man, first saw Dr. Vander Ark on February 10, 2003, because of chronic hearing loss in the left ear. He had no history of any sinus infections. The assessment was chronic otitis media (flaccid tympanic membrane, erosion of ices-stapedial joint, conductive hearing loss), sensorineural hearing loss, and sinonasal polyps. Dr. Vander Ark at the very first visit was considering sinus surgery although the patient had no sinus symptoms. A CT scan on 2/1812003 showed diffuse sinus disease involving all the sinuses and concern for cholesteatoma (benign, slowly growing and locally destructive ear tumor) in the left ear because disruption of the floor of the middle cranial fossa above the ear was found. A follow up appointment on February 21, 2003, caused the doctor to diagnose pan sinonasal polyposis and possible cholesteatoma in left ear. In above two visits there is no history noted of chronic and recurrent sinusitis. Sinus surgery was recommended. Medical treatment for the sinus disease was not recommended or tried prior to the sinus surgery. Joseph Martinec v Or Wesley Vander Ark Or S Falk Page 1 43 During the operation of 4/1/2003, anterior and posterior ethmoidectcmy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy, the doctor penetrated through the sinuses at the cribriform plate of the ethmoid and entered the cranial cavity. Despite follow up visits on April 2 and 7 and calls made to the office by the patient's wife, the doctor did not recognize the complications of the sinus surgery. The patient was admitted through the emergency department on April 7, 2003, and found to have pneumocephalus, meningitis, encephalitis, cerebrospinal fluid leakage from the brain into the nose secondary to violation of the cribriform plate and penetration into the intracranial contents during the sinus surgery. These serious complications: 1. necessitated further surgery including right frontal ventriculotomy and repair of cerebrospinal fluid leak with turbinate graft 2. resulted in multiple medical problems such as urinary retention, pneumonia, candidiasis requiring a prolonged hospitalization, hyperalimentation. 3. resulted in permanent brain damage with frontal lobe symptoms, confusion, memory loss, lack of motivation, and persistent cognitive deficits Based on my review of the available medical records at this point, it is my opinion that the acts and omissions of Dr. Vander Ark constituted professional negligence (malpractice). Malpractice is committed if: 1. a physician deviated from the standard of care and 2. such deviation resulted in harm to the patient There is evidence that Dr. Vander Ark deviated from the standard of care by: 1. performing sinus surgery without using medical treatment as a first option. It is standard of care that sinusitis be treated medically first and surgery be considered only after medical therapy fails. Frequently medical treatment can alleviate the sinus problems so that surgery and its attendant risks of complications can be avoided. Joseph Martin.ec v Or. Wesley Vander Ark ;.r. S. Falk Page 2 ut 2. performing sinus surgery that was not indicated and not necessary since the patient was asymptomatic regarding his sinuses. Although the patient had abnormalities on his sinus CT scan, he was asymptomatic regarding his sinuses. It is commonly observed that the appearance of the sinuses on X-ray does not correlate well with patients' sinus symptoms. For this reason the decision to operate on sinuses usually must be based on the desire to improve patients' symptoms. It is difficult to improve upon an asymptomatic patient. Operating on the sinuses of a patient who is asymptomatic regarding his sinuses exposes him to the risks of surgery with little or no potential benefits. 3. not promptly recognizing the complications of the sinus surgery and not instituting prompt treatment. Such prompt treatment could have decreased the brain injury, which the patient suffered. Sinus surgery was done on April 1 but the complications were not recognized until April 7 despite suggestive symptoms. Such deviations (1-3) resulted in harm to the patient, resulting in permanent brain damage with frontal lobe symptoms, confusion, memory loss, lack of motivation, and persistent cognitive deficits. I reserve the option to modify the above opinions, as new information becomes available. Please call if there are any questions. Sincerely, 4, Step MID Joseph Mar inec v Dr. Wesley Vander Ark Dr. S. Falk Page .? ut STEPHEN A. FALK, M.D., F.A.C.S. Resume (Updated 6/06) 350 Sandringham Road Ph: (585) 381- 0231 Rochester, NY 14610 E-mail: sfalk@rochester.rr.com EDUCATION and TRAINING: 1. Residency: otolaryngology-head and neck surgery, Stanford University Medical Center, Stanford, CA 1975-78 2. Residency: general surgery, St. Joseph Hospital, Denver, CO, 1974-75 3. Post-doctoral studies: biostatistics and epidemiology, University of North Carolina, School of Public Health, Chapel Hill, NC, 1972-74 4. Internship: University of Miami-Jackson Memorial Hospital, Miami, FL 1970-71 5. M.D.: New York University School of Medicine, New York, NY 1966-70 6. B.A.: Tufts University, Medford, MA; Major: chemistry and biology, 1962-66 MILITARY SERVICE: Lieutenant-commander (Major equivalent), US Public Health Service, National Institutes of Health, 1971-74 HONORS: 1. Best Doctors in America: editors Naifeh S, Smith GW, c. 1998-9, Woodward/White, Aiken, SC Best Doctors in America: editors Naifeh S, Smith GW, c. 1996-7, Woodward/White, Aiken, SC Best Doctors in America: Northeast Region, editors Naifeh S, Smith GW, c. 1996-7, Woodward/White, Aiken, SC 2. Phi Beta Kappa, Tufts University, 1965 3. Sigma Xi (for excellence in scientific research), Tufts University, 1965 4. Magna cum laude, Tufts University, 1966 5. Rubin scholarship, New York University School of Medicine, 1966-70 6. Five year service award, American Cancer Society, 1985 7. Honor award (for teaching) American Academy of Otolaryngology-Head and Neck Surgery, 1989 Resume Stephen A. Falk, MD page 1 of 1 1 PROFESSIONAL AND RESEARCH EXPERIENCE 1. Clinical Professor of Surgery, University of Rochester School of Medicine, 1979-present 2. Clinical Professor of Family Medicine, University of Rochester School of Medicine, 1979-present 3. Consultant to Mosby Publishers, St. Louis, MO; Care of the Surgical Patient: Editors, Meeker and Rothrock; 11`h edition (1999), 12`h Edition (2001) 4. Practice of otolaryngology and thyroid, Rochester, NY, 1979 to present 5. Editorial staff reviewer for the following journals: The Thyroid, Head and Neck, Otola neology-Head and Neck Surgery 6. Expert witness for defense and plaintiff in medical malpractice cases- record review, deposition, court room testimony 7. Consultant to Office of Professional Misconduct, NY State Department of Health, Albany, NY 8. Inventor and holder of US Patents: 5,456,702: Method of localized temperature regulation of an open surgical field during an operative procedure. 5,545,196: An apparatus for localized temperature regulation of an open surgical field during an operative procedure. 9. Associate, National Institutes of Health, 1972-74 FELLOWSHIPS 1. American College of Surgeons 2. American Board of Otolaryngology-Head and Neck Surgery 3. American Society of Head and Neck Surgery 4. American Academy of Facial Plastic and Reconstructive Surgery MEMBERSHIPS and OFFICES HELD 1. American College of Surgeons 1984 to present 2. American Head and Neck Society 1985 to present 3. American Society of Facial Plastic and Reconstructive Surgery 1985 to 2001 4. American Academy of Otolaryngology-Head and Neck Surgery Member of Endocrine Surgery Subcommittee, 1987-91 Member of Pathology Committee, 1987-90 Member, 1979-2001 Resume Stephen A. Falk, MD page 2 of I 1 5. Clifton Springs Hospital, Clifton Springs, NY Chairman, Department of Surgery, 1982-83 Chairman, Department of Emergency Medicine, 1980 Chairman, Infection Control Committee, 1981 Chairman, Pharmacy and Therapeutics Committee, 1986-87 Chairman, Bylaws Committee, 1987-1998 Secretary-Treasurer, Medical Staff, 1983-84 6. Center for Environmental Information, Rochester, NY Chairman, Board of Directors, 1997-1998 Member, Board of Directors, 1991-1996, 1999 7. Midlakes Management Corporation, Clifton Springs, NY Member, Board of Directors, 1998-2002 8. American Cancer Society, Ontario County Chapter, New York State President, 1982-84 Vice-President, 1981-82 Member, Board of Directors, 1980-84 9. American Medical Association, New York State Medical Society, Ontario County Medical Society, 1980 to present 10. Member of Medical Staff University of Rochester-Strong Memorial Hospital Resume Stephen A. Falk, MD page 3 of 1 I PRESENTATIONS AND TEACHING : NATIONAL, INTERNATIONAL, LOCAL 1. "Sleep Apnea" at Onondaga School, Rochester, NY, Dec 16, 2004 2. "Diagnosis and Treatment of Hyperthyroidism" at American Society of Radiologic Technologists, Rochester, NY, Oct. 20, 1999 3. "Surgery for Hyperthyroidism" at Postgraduate course, Surgery of the thyroid and parathyroid glands, Harvard Medical School, Nov. 13-14, 1998 4. "Complications of Thyroid Surgery" at American Thyroid Association, annual meeting, Portland, OR, Sept. 18-23, 1998 5. "The Molecular Genetics of Multiple Endocrine Neoplasia", Surgical Research Forum, University of Rochester School of Medicine, June 19, 1998 6. "Multiple endocrine neoplasia" at Grand Rounds, Department of Surgery, University of Rochester, School of Medicine, March 28, 1998 7. "Multiple endocrine neoplasia" at postgraduate course and panel discussion, Controversies in Parathyroid Surgery, annual convention of American College of Surgeons, Chicago, IL, Oct 11-17, 1997 8. "Multiple endocrine neoplasia syndromes" at Grand Rounds, Cancer Center, Department of Radiation Oncology, University of Rochester School of Medicine, Oct 8, 1997 9. "Hypothermia: a newly recognized cause of hypocalcemia after thyroid and parathyroid surgery" at Postgraduate course, Surgery of the thyroid and parathyroid glands, Harvard Medical School, Nov 8-9, 1996 10. "Hypothermia during thyroid surgery causes hypoparathyroidism" at 4th International Conference on Head and Neck Cancer, Toronto, July 28-August 1, 1996 11. "Otolaryngology-head and neck surgery", Board Review Course in Family Medicine. George Washington University School of Medicine, June 5-9, 1999, June 6-10, 1998, June 7-11, 1997, June 22-26,1996, June 24-28, 1995, June 1 1-15, 1994, June 12-16, 1993 12. "Thyroid disease", Board Review Course in Family Medicine, George Washington University School of Medicine, June 5-9, 1999, June 6-10, 1998, June 7-11, 1997, June 22-26, 1996, June 24-28, 1995, June I 1-15, 1994, June 12-16, 1993 Resume Stephen A. Falk, MD page 4 of I I 13. "Management of the recurrent laryngeal nerve in patients with suspected or proven thyroid cancer", annual meeting American Academy of Otolaryngology-Head and Neck Surgery, in San Diego, CA. Sept. 18-22,1994 14. Course: "Surgery of the Thyroid Gland", at annual meeting American Academy of Otolaryngology-Head and Neck Surgery, 1983-89 15. Course: Management of Hyperthyroidism", at annual meeting American Academy of Otolaryngology-Head and Neck Surgery, 1982 16. Course: "Medicine and Nuclear War", University of Rochester School of Medicine, 1988-91 17. "Management of the recurrent laryngeal nerve in suspected and proven thyroid cancer" at Surgical Research Forum University of Rochester School of Medicine, June 23, 1995 18. "Effect of hypothermia on parathyroid gland function" at Surgical Research Forum University of Rochester School of Medicine, June 10, 1994 19. "Calcium metabolism after thyroid and parathyroid surgery" at Surgical Research Forum University of Rochester School of Medicine, June 10, 1994 20. "Measurement of serum calcitonin as a screening test for thyroid nodules" at Surgical Research Forum, University of Rochester School of Medicine, June 25, 1993 21. "Treatment of sleep apnea and snoring" at New York State chapter, Association of Operating Room Nurses, Oct. 17, 1995 22. Moderator for thyroid and parathyroid research papers, Second International Conference on Head and Neck Cancer, Boston, MA, Aug. 3, 1988 23. "The role of calcitonin, parathormone and albumin-bound calcium in the pathogenesis of transient post-thyroidectomy hypocalcemia" at The American Society of Head and Neck Surgery, Denver, Co. April 29, 1987 24. "Thyroid dysfunction in lingual thyroid" at annual meeting of the American Academy of Otolaryngology-Head and Neck Surgery, Anaheim, CA, Oct. 24, 1983 25. "Graves' disease associated with histologic Hashimoto's thyroiditis" at annual meeting of the American Academy of Otolaryngology-Head and Neck Surgery, New Orleans, LA, Oct. 20, 1982 Resume Stephen A. Falk, MD page 5of11 PUBLICATIONS: MEDICAL JOURNALS 1. Falk, SA, Prevention and management of hypocalcemia after thyroid and parathyroid surgery, p. 529-35 in Otolaryngology-Head and Neck Surgery Certification Stud Guide, Ed. JL Gluckman, American Academy of Otolarygology -Head and Neck Surgery Foundation, Kendall-Hunt, Dubuque, IO, 1998 2. Falk, SA, "Multiple endocrine neoplasia", J of American College of Surgeons, Chicago, Oct I 1-17, 1997 3. Falk, SA, Decompression of the paralyzed recurrent laryngeal nerve, Otolaryngology-Head and Neck Surgery, 114-505, 1996 4. Goldman N, Coniglio J, Falk SA, Thyroid cancers-papillary, Follicular and Hurthle cell in Clinics of North America, Current Concepts in management of thyroid and parathyroid disorders, edited by Shindo ML, Singer PA, WB Saunders, Philadelphia, 29:4, p. 593-603, 1996 5. Falk SA, Reussner L, Hypothermia during thyroid surgery causes Hypoparathyroidism, Proceedings of the Fourth International Conference on Head and Neck Cancer, Toronto, The Society of Head and Neck Surgeons and The American Society of Head and Neck Surgery, July 28-August 1, 1996 6. Falk SA, Anaplastic carcinoma of the thyroid: a 24 year experience, Editorial, Head and Neck, 113, 42-48, 1995 7. Falk SA, McCaffrey TV, Management of the recurrent laryngeal nerve in patients with suspected or proven thyroid cancer, Otolaryngology- Head and Neck Surgery, 113, 42-48, 1995 8. Falk SA, Measurement of serum calcitonin as a screening test for thyroid Nodules, abstract, The Thyroid, supplement to Vol. 3, American Thyroid Association, 1993 9. Falk SA, Metastatic thyroid cancer as an incidental finding during neck dissection: significance and management, Head and Neck, 15, 1357-58, 1993 10. Falk SA, Study guide for "Otolaryngology-head and neck surgery, Thyroid Disease", American Academy of Family Practice, 1993-97 Resume Stephen A. Falk, MD page 6 of 1 I 11. Falk SA, Facial Plastic, Head and Neck Surgery; Update for the 1990s; Part 1, Practitioner, issue 2, Clifton Springs Hospital, 1993 12. Falk SA, Facial Plastic, Head and Neck Surgery; Update for the 1990s; Part 2, Practitioner, issue 3, Clifton Springs Hospital, 1993 13. Falk SA, The Management of hyperthyroidism: A surgeon's perspective: in Clinics of North America, "Disorders of the thyroid and Parathyroid", edited by Harvey HK, WB Saunders, Philadelphia, 23:3, 361-80, 1990 14. Falk SA, Baran D, Birken EA, Temporary post-thyroidectomy hypocalcemia, Arch Otolaryngol-Head and Neck Surgery, 114:168-74, 1988 15. Falk SA, Birken EA, "Evaluation and treatment of thyroid cancer", Course syllabus, American Academy of Otolaryngology-Head and Neck Surgery, 1986 16. Falk SA, Birken EA, "Hyperthyroidism", course syllabus, American Academy of Otolaryngology-Head and Neck Surgery, 1986 17. Falk SA, Birken EA, Ronquillo A, Graves' disease associated with histologic Hashimoto's thyroiditis, Otolaryn ology-Head and Surgery, 93, 86-91, 1985 18. Goode R, McElveen J, Falk SA, Miller C, Effect of mastoid cavity modification on middle ear sound transmission, Ann Otol, 91, 526-32, 1982 19. Goode R, Friedrichs R, Falk SA, Effect of surgical modification of the external ear on hearing thresholds, Ann Otol, 86, 441-50, 1977 20. Falk SA, Hillel A, Scheinberg P, Glomus jugulare and glomus tympanicum tumors, Proceedings of Grand Rounds, Stanford University School of Medicine, Nov 1977 21. Falk SA, Woods NF, Hospital noise, N Engl J Med, 290, 523, 1974 22. Woods NF, Falk SA, Noise stimuli in the acute care area, Nursing Research, 23, 144-50, 1974 23. Falk SA, Klein R, Haseman JK, Sanders GM, Talley FA, Lim DJ, Acute methyl mercury intoxication and ototoxicity in guinea pigs, Arch Path 97, 297-305, 1974 Resume Stephen A. Falk, MD page 7 of I i 24. Falk SA, Cook RO, Haseman JK, Sanders GM, Noise induced ototoxicity in newborn and adult guinea pigs, Laryn oscope 84, 444-53, 1974 25. Falk SA and Committee on Environmental Hazards, American Academy of Pediatrics, Noise pollution: neonatal aspects, Pediatrics, 54, 476-79, 1974 26. Falk SA, Sodium salicylate, Arch Otolaryngology, 99,393, 1974 27. Falk SA, Farmer JD, Incubator noise and possible deafness, Arch Otolaryngology, 97, 385-87, 1973 28. Falk SA, Klein R, Sanders GM, Lim DJ, The ototoxicity of methyl mercury, Proceedings of the Twelfth Annual Meeting of the Society of Toxicology, March 18-22, 1973, New York, NY 29. Falk SA, Klein R, Sanders GM, Lim DJ, The ototoxicity of methyl mercury, Proceedings of the Eighty-fifth Meeting of the Acoustical Society of America, April 10-23, 1973, Boston, MA 30. Falk SA, Haseman JK, Klein R, Falk MK, Methyl mercury ototoxicity: a model for the surface preparation technique, Laryngoscope 83, 1769-82, 1973 31. Falk, SA, Environmental noise, Am J Public Health 63, 833-34, 1973 32. Falk SA, Woods NF, Hospital noise: levels and potential health hazards, N Engl J Med, 289, 774-81, 1973 33. Falk SA, Combined effects of noise and ototoxic drugs, Environmental Health Perspectives 2, 5-22, 1972 34. Falk SA et al, Public Health and Welfare Criteria Document for Noise, US Environmental Protection Agency, Office of Noise Abatement and Control, Washington DC, July 27, 1973 Resume Stephen A. Falk, MD page 8 of 1 l BOOKS 1. Falk SA, Popat SR, Surgery for Hyperthyroidism, Ch 10 in: Surgery of the Thyroid and Parathyroid Glands, edited by Randolph GW, Saunders, Philadelphia, 2003 2. Falk SA, editor, Thyroid Disease: Endocrinology, Surgery, Nuclear Medicine and Radiotherapy, second edition, Lippincott-Raven Press, Philadelphia, 1997 3. Falk SA, editor, Thyroid Disease: Endocrinology, Surgery, Nuclear Medicine and Radiotherapy, first edition, Raven Press, NY 1990 The above two books are comprehensive textbooks of 40 chapters. Reviews consider them the most complete, clinically useful and authoritative references of its kind. 4. Falk SA, Surgical treatment of hyperthyroidism, Ch 17, in op cit 2 5. Birken EA, Falk SA, Feins RH, The technique of thyroidectomy by cervical and thoracic approaches, Ch 36, in op cit 2 6. Falk SA, Complicatons of thyroid surgery; an overview, Ch 37 in op cit 2 7. Falk SA, Metabolic complications of thyroid surgery: hypocalcemia and hypoparathyroidism; hypocalcitonemia; hypothyroidism and hyperthyroidism, Ch 39 in op cit 2 8. Harvey HK, Falk SA, Petti G, Rice D, Snyderman N, Surgery of the Thyroid and Parathyroid Glands, American Academy of Otolaryngology-Head and Neck Surgery, Fairfax, VA, 1991 9. Falk SA, Surgical treatment of hyperthyroidism, Ch 13, in op cit 3 10. Simmons WB, Birken EA, Falk SA, The technique of thyroidectomy, Ch 35, in op cit 3 11. Falk SA, Complications of thyroid surgery; an overview, Ch 36 in op cit 3 12. Falk SA, Metabolic complications of thyroid surgery: hypocalcemia and hypoparathyroidism; hypocalcitonemia; Ch 38 in op cit 3 13. Falk SA, Metabolic complications of thyroid surgery: hypothyroidism and hyperthyroidism, Ch 39 in op cit 3 Resume Stephen A. Falk, MD page 9 of 1 I 14. Falk SA, "Hyperthyroidism: a surgeon's perspective" in Otolaryngology, Chapter 70, edited by English GM, Harper and Rowe, Philadelphia., vol 4, 1985 15. Falk SA, "Pathophysiological responses of the auditory organ to excessive Sound" Ch 2, in Handbook of Physiology, Reactions to Environmental Agents, edited by Lee DHK, American Physiological Society, Williams and Wilkins Co, Baltimore, MD, 1977 Resume Stephen A. Falk, MD page 10 of 11 734650 CERTIFICATE OF SERVICE AND NOW, September 7, 2010, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 171 10 (Counsel for Plaintiff, Joseph P. Martinec) INI ,? ) W?- AA? IFFranci. Marshall, Jr., Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR., ESQUIRE ATTORNEY I.D. NO. 27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) (717)731-4803 (Fax) JOSEPH P. MARTINEC, Plaintiff V. WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C, ATTORNEY FOR: I)EFFNDANTS IN THE COURT OF COMMONCrLEAS ,.? OF CUMBERLAND COUNTY,' PENNSYLVANIA NO. NO. 2005-1626 G CIVIL ACTION - MEDICAL ? C 0 - 5- JURY TRIAL DEMANDED Defendants DEFENDANTS' MOTION IN LIMINE TO PRECLUDE TRIAL TESTIMONY OF PLAINTIFF'S EXPERT AND NOW, come Defendants, by and through their counsel, Dickie, McCamey & Chilcote, P.C., and moves this Court to Preclude Plaintiffs expert lrom testifying at trial, and in support thereof aver as follows: 1. In this medical professional liability action, Plaintiff asserts an informed consent claim and also alleges negligence related to the performance of endoscopic sinus surgery. 2. In support of the allegations, Plaintiff produced an expert report authored by Stephen A. Falk, M.D. ("Dr. Falk"). Dr. Falk's report and curriculum vitae are attached at Exhibit "A." 3. Dr. Falk is not qualified to testify pursuant to the MCARE Act, 40 P.S. 1303.512, et seg. because he has not been "engaged in, or retired within the previous five years from, active clinical practice or teaching." 4. Dr. Falk admittedly has not been actively practicing, teaching or performing otolaryngology and surgery since approximately 2000. See, Dr. Falk's deposition testimony in Lyles v. Crocker taken on August 5, 2003 in the Circuit Court of Benton County, Arkansas, Docket No. CV 2002-1440-5; Swisher v. Rudolph taken on November 9, 2004 in the Circuit Court of Wood County, West Virginia, Docket No. 03-C-571; Hanson v. Chinn taken on June 13, 2005 in the King County, Seattle, Washington, Docket No. 03-2-20134-1, attached hereto as Exhibits B-D, respectively. 5. The MCARE Act, 40 P.S. § 1303.512, et seq., establishes criteria for the qualification of an expert witness in a medical professional liability action against a physician. 6. The first requirement is that the testifying expert must possess a physician's license to practice medicine. 40 P.S. § 1303.512(b)(1), Weiner v. Fisher, 871 A.2d 1283 (Pa.Super. 2005), appeal denied, 936 A.2d 41 (Pa. 2007). 7. Dr. Vander Ark does not dispute that Plaintiff's expert, Dr. Falk, possess a physician's license to practice medicine. 8. However, Dr. Falk admittedly fails to satisfy the second requirement that the testifying expert "be engaged in, or retired within the previous five years from. active clinical practice or teaching." 40 P.S. § 1303.512(b)(2) . 9. Dr. Falk's previous deposition testimony conclusively establishes he lacks the qualifications necessary to testify as an expert witness in this case because he has not been actively engaged in the practice of medicine for over 10 years. 10. Without a qualified expert, Plaintiff cannot satisfy his burden of proof at trial and Summary Judgment should be entered in favor of the Defendants. Respectfully submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. Date: September 7, 2010 By: Francis E. Marshall, Jr., Esquire ATTORNEY I.D. NO. 27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 1701 1-3700 (717) 731-4800 Attorncv for Defendants, WeslevD. Vander Ark Alf. D., and ENT Facial Plastic Surgerv Croup, P. C. Stephen A. Falk, MD, FRCS Clinical Professor of Surgery University of Rochester School of Medicine Fellow: Arerican College of Surgeons American Head and Neck Society President: Thyroid Medical Associates Editor. Thyroid Disease Consultant: Medical malpractice Surgical instrumentation 350 Sandringham Road Rochester, New York 14610 March 24, 2005 Charles E. Wasilefski Peters & Wasilefski 2931 North Front St. Harrisburg, PA 17110-1250 Re: plaintiff, Joseph Martinec v Dr. Wesley Vander Ark Dear Mr. Wasilefski: .585 381 0231, e-mail: stalkarochester.rr.com I have reviewed the medical records of Joseph Martinec. Mr. Martinec, a 72 year old man, first saw Dr. Vander Ark on February 10, 2003, because of chronic hearing loss in the left ear. He had no history of any sinus infections. The assessment was chronic otitis media (flaccid tympanic membrane, erosion of icus-stapedial joint, conductive hearing loss), sensorineural hearing loss, and sinonasal polyps. Dr. Vander Ark at the very first visit was considering sinus surgery although the patient had no sinus symptoms. A CT scan on 2/18/2003 showed diffuse sinus disease involving all the sinuses and concern for cholesteatoma (benign, slowly growing and locally destructive ear tumor) in the left ear because disruption of the floor of the middle cranial fossa above the ear was found. A follow up appointment on February 21, 2003, caused the doctor to diagnose pan sinonasai polyposis and possible cholesteatoma in left ear. In above two visits there is no history noted of chronic and recurrent sinusitis. Sinus surgery was recommended. Medical treatment for the sinus disease was not recommended or tried prior to the sinus surgery. Joseph Martinec v Dr. Wesley Vander Ark Dr. S. Falk Page I of 3 During the operation of 41112003, anterior and posterior ethmoidectemy, middle meatal antrostomy with tissue removal and bilateral sphenoidotomy, the doctor penetrated through the sinuses at the cribriform plate of the ethmoid and entered the cranial cavity. Despite follow up visits on April 2 and 7 and calls made to the cffice by the patient's wife, the doctor did not recognize the complications of the sinus surgery. The patient was admitted through the emergency department on April 7, 2003, and found to have pneumocephalus, meningitis, encephalitis, cerebrospinal fluid leakage from the brain into the nose secondary to violation of the cribriform plate and penetration into the intracranial contents during the sinus surgery. These serious complications: 1. necessitated further surgery including right frontal ventriculotomy and repair of cerebrospinal fluid leak with turbinate graft 2. resulted in multiple medical problems such as urinary retention, pneumonia, candidiasis requiring a prolonged hospitalization, hyperalimentation. 3. resulted in permanent brain damage with frontal lobe symptoms, confusion, memory loss, lack of motivation, and persistent cognitive deficits Based on my review of the available medical records at this point, it is my opinion that the acts and omissions of Dr. Vander Ark constituted professional negligence (malpractice). Malpractice is committed if: 1. a physician deviated from the standard of care and 2. such deviation resulted in harm to the patient There is evidence that Dr. Vander Ark deviated from the standard of care by: 1. performing sinus surgery without using medical treatment as a first option. It is stardard of care that sinusitis be treated medically first and surgery be considered only after medical therapy fails. Frequently medical treatment can alleviate the sinus problems so that surgery and its attendant risks of complications can be avoided. Joseph Martinec v Dr. Wesley Vander Ark Dr. S. Falk Page 2 of ,3 2. performing sinus surgery that was not indicated and not necessary since the patient was asymptomatic regarding his sinuses. Although the patient had abnormalities on his sinus CT scan, he was asymptomatic regarding his sinuses. It is commonly observed that the appearance of the sinuses on X-ray does not correlate well with patients' sinus symptoms. For this reason the decision to operate on sinuses usually must be based on the desire to improve patients' symptoms. It is difficult to improve upon an asymptomatic patient. Operating on the sinuses of a patient who is asymptomatic regarding his sinuses exposes him to the risks of surgery with little or no potential benefits. 3, not promptly recognizing the complications of the sinus surgery and not instituting prompt treatment. Such prompt treatment could have decreased the brain injury, which the patient suffered. Sinus surgery was done on April 1 but the complications were not recognized until April 7 despite suggestive symptoms. Such deviations (1-3) resulted in harm to the patient, resulting in permanent brain damage with frontal lobe symptoms, confusion, memory loss, lack of motivation, and persistent cognitive deficits. I reserve the option to modify the above opinions, as new information becomes available. Please call if there are any questions. Sincerely, Z,?L a, - /? 4L Stephen A. Fal , MD Joseph Martinec v Dr. Wesley Vander Ark Dr. S. Falk Page, of STEPHEN A. FALK, M.D., F.A.C.S. Resume (Updated 6/06) 350 Sandringham Road Ph: (585) 381- 0231 Rochester, NY 14610 E-mail: sfalk@roehester.rr.com EDUCATION and TRAINING: 1. Residency: otolaryngology-head and neck surgery, Stanford University Medical Center, Stanford, CA 1975-78 2. Residency: general surgery, St. Joseph Hospital, Denver, CO, 1974-75 3. Post-doctoral studies: biostatistics and epidemiology, University of North Carolina, School of Public Health, Chapel Hill, NC, 1972-74 4. Internship: University of Miami-Jackson Memorial Hospital, Miami, FL 1970-71 5. M.D.: New York University School of Medicine, New York, NY 1966-70 6. B.A.: Tufts University, Medford, MA; Major: chemistry and biology, 1962-66 MILITARY SERVICE: Lieutenant-commander (Major equivalent), US Public Health Service, National Institutes of Health, 1971-74 HONORS: 1. Best Doctors in America: editors Naifeh S, Smith GW, c. 1998-9, Woodward/White, Aiken, SC Best Doctors in America: editors Naifeh S, Smith GW, c. 1996-7, Woodward/White, Aiken, SC Best Doctors in America: Northeast Re ion, editors Naifeh S, Smith GW, c. 1996-7, Woodward/White, Aiken, SC 2. Phi Beta Kappa, Tufts University, 1965 3. Sigma Xi (for excellence in scientific research), Tufts University, 1965 4. Magna cum laude, Tufts University, 1966 5. Rubin scholarship, New York University School of Medicine, 1966-70 6. Five year service award, American Cancer Society, 1985 7. Honor award (for teaching) American Academy of Otolaryngology-Head and Neck Surgery, 1989 Resume Stephen A. Falk, MD page 1 of 1 1 PROFESSIONAL AND RESEARCH EXPERIENCE 1, Clinical Professor of Surgery, University of Rochester School of Medicine, 1979-present 2. Clinical Professor of Family Medicine, University of Rochester School of Medicine, 1979-present 3. Consultant to Mosby Publishers, St. Louis, MO; Care of the Surgical Patient: Editors, Meeker and Rothrock; 11 ch edition (1999), 12t1 Edition (2001) 4. Practice of otolaryngology and thyroid, Rochester, NY, 1979 to present 5. Editorial staff reviewer for the following journals: The Thyroid, Head and Neck, Otolaryngology-Head and Neck Surgery 6. Expert witness for defense and plaintiff in medical malpractice cases record review, deposition, court room testimony 7. Consultant to Office of Professional Misconduct, NY State Department of Health, Albany, NY 8. Inventor and holder of US Patents: 5,456,702: Method of localized temperature regulation of an open surgical field during an operative procedure. 5,545,196: An apparatus for localized temperature regulation of an open surgical field during an operative procedure. 9. Associate, National Institutes of Health, 1972-74 FELLOWSHIPS 1. American College of Surgeons 2. American Board of Otolaryngology-Head and Neck Surgery 3. American Society of Head and Neck Surgery 4. American Academy of Facial Plastic and Reconstructive Surgery MEMBERSHIPS and OFFICES HELD 1. American College of Surgeons 1984 to present 2. American Head and Neck Society 1985 to present 3. American Society of Facial Plastic and Reconstructive Surgery 1985 to 2001 4. American Academy of Otolaryngology-Head and Neck Surgery Member of Endocrine Surgery Subcommittee, 1987-91 Member of Pathology Committee, 1987-90 Member, 1979-2001 Resume Stephen A. Falk, MD page 2 of 11 5. Clifton Springs Hospital, Clifton Springs, NY Chairman, Department of Surgery, 1982-83 Chairman, Department of Emergency Medicine, 1980 Chairman, Infection Control Committee, 1981 Chairman, Pharmacy and Therapeutics Committee, 1986-87 Chairman, Bylaws Committee, 1987-1998 Secretary -Treasurer, Medical Staff, 1983-84 6. Center for Environmental Information, Rochester, NY Chairman, Board of Directors, 1997-1998 Member, Board of Directors, 1991-1996, 1999 7. Midlakes Management Corporation, Clifton Springs, NY Member, Board of Directors, 1998-2002 8. American Cancer Society, Ontario County Chapter, New York State President, 1982-84 Vice-President, 1981-82 Member, Board of Directors, 1980-84 9. American Medical Association, New York State Medical Society, Ontario County Medical Society, 1980 to present 10. Member of Medical Staff University of Rochester-Strong Memorial Hospital Resume Stephen A. Falk, MD page 3 of 1 1 PRESENTATIONS AND TEACHING : NATIONAL, INTERNATIONAL, LOCAL 1. "Sleep Apnea" at Onondaga School, Rochester, NY, Dec 16, 2004 2. "Diagnosis and Treatment of Hyperthyroidism" at American Society of Radiologic Technologists, Rochester, NY, Oct. 20, 1999 3. "Surgery for Hyperthyroidism" at Postgraduate course, Surgery of the thyroid and parathyroid glands, Harvard Medical School, Nov. 13-14, 1998 4. "Complications of Thyroid Surgery" at American Thyroid Association, annual meeting, Portland, OR, Sept. 18-23, 1998 5. "The Molecular Genetics of Multiple Endocrine Neoplasia", Surgical Research Forum, University of Rochester School of Medicine, June 19, 1998 6. "Multiple endocrine neoplasia" at Grand Rounds, Department of Surgery, University of Rochester, School of Medicine, March 28, 1998 7. "Multiple endocrine neoplasia" at postgraduate course and panel discussion, Controversies in Parathyroid Surgery, annual convention of American College of Surgeons, Chicago, IL, Oct 11-17, 1997 8. "Multiple endocrine neoplasia syndromes" at Grand Rounds, Cancer Center, Department of Radiation Oncology, University of Rochester School of Medicine, Oct 8, 1997 9. "Hypothermia: a newly recognized cause of hypocalcemia after thyroid and parathyroid surgery" at Postgraduate course, Surgery of the thyroid and parathyroid glands, Harvard Medical School, Nov 8-9, 1996 10. "Hypothermia during thyroid surgery causes hypoparathyroidism" at 4`h International Conference on Head and Neck Cancer, Toronto, July 28-August 1, 1996 11. "Otolaryngology-head and neck surgery", Board Review Course in Family Medicine. George Washington University School of Medicine, June 5-9, 1999, June 6-10, 1998, June 7-11, 1997, June 22-26,1996, June 24-28, 1995, June 11-15, 1994, June 12-16, 1993 12. "Thyroid disease", Board Review Course in Family Medicine, George Washington University School of Medicine, June 5-9, 1999, June 6-10, 1998, June 7-11, 1997, June 22-26, 1996, June 24-28, 1995, June 1 1-15, 1994, June 12-16, 1993 Resume Stephen A. Falk, MD page 4 of 11 13. "Management of the recurrent laryngeal nerve in patients with suspected or proven thyroid cancer", annual meeting American Academy of Otolaryngology-Head and Neck Surgery, in San Diego, CA. Sept. 18-22,1994 14. Course: "Surgery of the Thyroid Gland", at annual meeting American Academy of Otolaryngology-Head and Neck Surgery, 1983-89 15. Course: Management of Hyperthyroidism", at annual meeting American Academy of Otolaryngology-Head and Neck Surgery, 1982 16. Course: "Medicine and Nuclear War", University of Rochester School of Medicine, 1988-91 17. "Management of the recurrent laryngeal nerve in suspected and proven thyroid cancer" at Surgical Research Forum University of Rochester School of Medicine, June 23, 1995 18. "Effect of hypothermia on parathyroid gland function" at Surgical Research Forum University of Rochester School of Medicine, June 10, 1994 19. "Calcium metabolism after thyroid and parathyroid surgery" at Surgical Research Forum University of Rochester School of Medicine, June 10, 1994 20. "Measurement of serum calcitonin as a screening test for thyroid nodules" at Surgical Research Forum, University of Rochester School of Medicine, June 25, 1993 21. "Treatment of sleep apnea and snoring" at New York State chapter, Association of Operating Room Nurses, Oct. 17, 1995 22. Moderator for thyroid and parathyroid research papers, Second International Conference on Head and Neck Cancer, Boston, MA, Aug. 3, 1988 23. "The role of calcitonin, parathormone and albumin-bound calcium in the pathogenesis of transient post-thyroidectomy hypocalcemia" at The American Society of Head and Neck Surgery, Denver, Co. April 29, 1987 24. "Thyroid dysfunction in lingual thyroid" at annual meeting of the American Academy of Otolaryngology-Head and Neck Surgery, Anaheim, CA, Oct. 24, 1983 25. "Graves' disease associated with histologic Hashimoto's thyroiditis" at annual meeting of the American Academy of Otolaryngology-Head and Neck Surgery, New Orleans, LA, Oct. 20, 1982 Resume Stephen A. Falk, MD page 5 of 11 PUBLICATIONS: MEDICAL JOURNALS 1. Falk, SA, Prevention and management of hypocalcemia after thyroid and parathyroid surgery, p. 529-35 in Otolaryngology-Head and Neck Surgery Certification Study Guide, Ed. JL Gluckman, American Academy of Otolarygology -Head and Neck Surgery Foundation, Kendall-Hunt, Dubuque, IO, 1998 Falk, SA, "Multiple endocrine neoplasia", J of American College of Surgeons, Chicago, Oct 11-17, 1997 3. Falk, SA, Decompression of the paralyzed recurrent laryngeal nerve, Otolaryngology-Head and Neck Surgery, 114-505, 1996 4. Goldman N, Coniglio J, Falk SA, Thyroid cancers-papillary, Follicular and Hurthle cell in Clinics of North America, Current Concepts in management of thyroid and parathyroid disorders, edited by Shindo ML, Singer PA, WB Saunders, Philadelphia, 29:4, p. 593-603, 1996 5. Falk SA, Reussner L, Hypothermia during thyroid surgery causes Hypoparathyroidism, Proceedings of the Fourth International Conference on Head and Neck Cancer, Toronto, The Society of Head and Neck Surgeons and The American Society of Head and Neck Surgery, July 28-August 1, 1996 6. Falk SA, Anaplastic carcinoma of the thyroid: a 24 year experience, Editorial, Head and Neck, 113, 42-48, 1995 7. Falk SA, McCaffrey TV, Management of the recurrent laryngeal nerve in patients with suspected or proven thyroid cancer, Otola n olo - Head and Neck Surgery, 113, 42-48, 1995 8. Falk SA, Measurement of serum calcitonin as a screening test for thyroid Nodules, abstract, The Thyroid, supplement to Vol. 3, American Thyroid Association, 1993 9. Falk SA, Metastatic thyroid cancer as an incidental finding during neck dissection: significance and management, Head and Neck, 15, 1357-58, 1993 10. Falk SA, Study guide for "Otolaryngology-head and neck surgery, Thyroid Disease", American Academy of Family Practice, 1993-97 Resume Stephen A. Falk, MD page 6 of 1 1 11. Falk SA, Facial Plastic, Head and Neck Surgery; Update for the 1990s; Part 1, Practitioner, issue 2, Clifton Springs Hospital, 1993 12. Falk SA, Facial Plastic, Head and Neck Surgery; Update for the 1990s; Part 2, Practitioner, issue 3, Clifton Springs Hospital, 1993 13. Falk SA, The Management of hyperthyroidism: A surgeon's perspective: in Clinics of North America, "Disorders of the thyroid and Parathyroid", edited by Harvey HK, WB Saunders, Philadelphia, 23:3, 361-80, 1990 14. Falk SA, Baran D, Birken EA, Temporary post-thyroidectomy hypocalcemia, Arch Otolaryngol-Head and Neck Surgery, 114:168-74, 1988 15. Falk SA, Birken EA, "Evaluation and treatment of thyroid cancer", Course syllabus, American Academy of Otolaryngology-Head and Neck Surgery, 1986 16. Falk SA, Birken EA, "Hyperthyroidism", course syllabus, American Academy of Otolaryngology-Head and Neck Surgery, 1986 17. Falk SA, Birken EA, Ronquillo A, Graves' disease associated with histologic Hashimoto's thyroiditis, Otolarvngology-Head and Sum, 93, 86-91, 1985 18. Goode R, McElveen J, Falk SA, Miller C, Effect of mastoid cavity modification on middle ear sound transmission, Ann Otol, 91, 526-32, 1982 19. Goode R, Friedrichs R, Falk SA, Effect of surgical modification of the external ear on hearing thresholds, Ann Otol, 86, 441-50, 1977 20. Falk SA, Hillel A, Scheinberg P, Glomus jugulare and glomus tympanicum tumors, Proceedings of Grand Rounds, Stanford University School of Medicine, Nov 1977 21. Falk SA, Woods NF, Hospital noise, N Engl J Med, 290, 523, 1974 22. Woods NF, Falk SA, Noise stimuli in the acute care area, Nursing Research, 23, 144-50, 1974 23. Falk SA, Klein R, Haseman JK, Sanders GM, Talley FA, Lim DJ, Acute methyl mercury intoxication and ototoxicity in guinea pigs, Arch Path 97, 297-305, 1974 Resume Stephen A. Falk, MD page 7 of 1 1 24. Falk SA, Cook RO, Haseman JK, Sanders GM, Noise induced ototoxicity in newborn and adult guinea pigs, Laryngoscope 84, 444-53, 1974 25. Falk SA and Committee on Environmental Hazards, American Academy of Pediatrics, Noise pollution: neonatal aspects, Pediatrics, 54, 476-79, 1974 26. Falk SA, Sodium salicylate, Arch Otolaryngology, 99,393, 1974 27. Falk SA, Farmer JD, Incubator noise and possible deafness, Arch Otolaryngology, 97, 385-87, 1973 28. Falk SA, Klein R, Sanders GM, Lim DJ, The ototoxicity of methyl mercury, Proceedings of the Twelfth Annual Meeting of the Society of Toxicology, March 18-22, 1973, New York, NY 29. Falk SA, Klein R, Sanders GM, Lim DJ, The ototoxicity of methyl mercury, Proceedings of the Eighty-fifth Meeting of the Acoustical Society of America, April 10-23, 1973, Boston, MA 30. Falk SA, Haseman JK, Klein R, Falk MK, Methyl mercury ototoxicity: a model for the surface preparation technique, Laryngoscope 83, 1769-82, 1973 31. Falk, SA, Environmental noise, Am J Public Health 63, 833-34, 1973 32. Falk SA, Woods NF, Hospital noise: levels and potential health hazards, N Engl J Med, 289, 774-81, 1973 33. Falk SA, Combined effects of noise and ototoxic drugs, Environmental Health Perspectives 2, 5-22, 1972 34. Falk SA et al, Public Health and Welfare Criteria Document for Noise, US Environmental Protection Agency, Office of Noise Abatement and Control, Washington DC, July 27, 1973 Resume Stephen A. Falk, MD page 8 of 1 1 BOOKS 1. Falk SA, Popat SR, Surgery for Hyperthyroidism, Ch 10 in: Surgery of the Thyroid and Parathyroid Glands, edited by Randolph GW, Saunders, Philadelphia, 2003 2. Falk SA, editor, Thyroid Disease: Endocrinology, Surgery, Nuclear Medicine and Radiotherapy, second edition, Lippincott-Raven Press, Philadelphia, 1997 3. Falk SA, editor, Thyroid Disease: Endocrinology, Surgery Nuclear Medicine and Radiotherapy, first edition, Raven Press, NY 1990 The above two books are comprehensive textbooks of 40 chapters. Reviews consider them the most complete, clinically useful and authoritative references of its kind. 4. Falk SA, Surgical treatment of hyperthyroidism, Ch 17, in op cit 2 5. Birken EA, Falk SA, Feins RH, The technique of thyroidectomy by cervical and thoracic approaches, Ch 36, in op cit 2 6. Falk SA, Complicatons of thyroid surgery; an overview, Ch 37 in op cit 2 7. Falk SA, Metabolic complications of thyroid surgery: hypocalcemia and hypoparathyroidism; hypocalcitonemia; hypothyroidism and hyperthyroidism, Ch 39 in op cit 2 8. Harvey HK, Falk SA, Petti G, Rice D, Snyderman N, Surgery of the Thyroid and Parathyroid Glands, American Academy of Otolaryngology-Head and Neck Surgery, Fairfax, VA, 1991 9. Falk SA, Surgical treatment of hyperthyroidism, Ch 13, in op cit 3 10. Simmons WB, Birken EA, Falk SA, The technique of thyroidectomy, Ch 35, in op cit 3 11. Falk SA, Complications of thyroid surgery; an overview, Ch 36 in op cit 3 12. Falk SA, Metabolic complications of thyroid surgery: hypocalcemia and hypoparathyroidism; hypocalcitonemia; Ch 38 in op cit 3 13. Falk SA, Metabolic complications of thyroid surgery: hypothyroidism and hyperthyroidism, Ch 39 in op cit 3 Resume Stephen A. Falk, MD page 9 of 11 14. Falk SA, "Hyperthyroidism: a surgeon's perspective" in Otolaryngology, Chapter 70, edited by English GM, Harper and Rowe, Philadelphia., vol 4, 1985 15. Falk SA, "Pathophysiological responses of the auditory organ to excessive Sound" Ch 2, in Handbook of Physiology, Reactions to Environmental Agents, edited by Lee DHK, American Physiological Society, Williams and Wilkins Co, Baltimore, MD, 1977 Resume Stephen A. Falk, MD page 10 of 11 0 0 9D04D1E STEPHEN A. FALK, M.D. AUGUST 5, 2003 '1 c-tp L ' 1 2 IN THE CIRCUIT COURT OF BENTON COUNTY, ARKANSAS CIVIL DIVISION 3 - - - - - - - - - - - - - - - - - - - -x LINDA J. LYLES, 4 Plaintiff, S V. No. CV 2002-1440.5 6 THERMON R. CROCKER, M.D.; and JOHN DOE NOS. 1-5 7 Defendant. - - - - - - - - - - - - - - - - - - - -x 8 Deposition Upon Oral Examination Of: Stephen A. Falk, M.D. 9 10 Location: Alliance Shorthand, Inc. 183 Main Street East 11 Rochester, New York 14604 12 13 Date: August 5, 2003 14 15 Time: 9:20 a.m. 16 17 18 19 20 ATKINSON-BAKER, INC. COURT REPORTERS 21 330 North Brand Boulevard, Suite 250 Glendale, California 91203 22 (818) 551-7300 23 FILE NO.: 9D04D1E 24 Reported By: Maria A. Wolczyk, CSR 25 Atkinson-Baker, Inc. Page 1 1-800-288-3376 ,• 9D04D1E STEPHEN A. FALK, M.D. AUGUST 5, 2003 1 STEPHEN A. FALK, M.D. - BY MS. SMITH 1 2 meetings, conferences, there's textbooks, and 2 3 pretty much most people practice the same quality, 3 4 hopefully, of medicine. 4 5 Q. So in this case you're applying a 5 6 national standard of care? 6 7 A. Well, a national standard of care, yes. 7 8 I've never been to Arkansas, and I don't know how 8 9 medicine is practiced there, but the doctors in 9 10 Arkansas, some of them come to national meetings. 10 11 Dr. Suen teaches at national meetings, and he 11 12 provides the standard of care in certain ways. So 12 13 I would assume that the standard of care in 13 14 Arkansas is the same as the rest of the country. 14 15 Q. But in this case, would it be a correct 15 16 statement that you are applying what you believe 16 17 to be a national standard of care? 17 18 A. Yes, I think that that's correct. 18 19 Q. What is the nature of your current 19 20 practice? 20 21 A. Current practice, right now I'm not 21 22 actively practicing surgery. 22 23 Q. When did you stop actively practicing 23 24 surgery? 24 25 A. That was in April of 2001. 25 Page 50 1 STEPHEN A. FALK, M.D. - BY MS. SMITH 1 2 Q. And why did you stop? 2 3 A. Because I was ill. 3 4 Q. And was your illness such that you could 4 5 not do surgery? 5 6 A. Correct. 6 7 Q. And is that still true? 7 8 A. That is still basically true. 8 9 Q. So the last surgery you performed was in 9 10 March 2001? 10 11 A. Probably before then. Probably before 11 12 then, but in -- I tapered off a lot in 2001. Very 12 13 little. 13 14 Q. Did you have an active practice in the 14 15 year 2000? 15 16 A. Quite active. Even more active in '99. 16 17 Q. So even in 2000 it was tapering off? 17 18 A. It was tapering off, yes. 18 19 Q. Do you mind me asking what your illness 19 20 is? 20 21 A. I had some lung disease. 21 22 Q. So do you participate in the practice of 22 23 medicine at all currently? 23 24 A. Right now I do not see any patients 24 25 actively. I still write. I just - actually I 25 Page 51 STEPHEN A. FALK, M.D. - BY MS. SMITH was going to bring it, but I wrote part of a textbook that just was published, I just got it last week, in a major thyroid, parathyroid textbook. So it's more academic work. I consult with some doctors, go to meetings. But I don't actively see patients right now. Q. Okay. And have you seen patients since the year 2000? A. Well, yes, I was seeing patients throughout the year 2000, and throughout the beginning of 2001. Q. But no patients since early 2001? A. Since about April of 2001, correct. No active -- I do see an occasional patient or two, but very, very -- not regular practice. Q. Before early 2001, what was the nature of your practice? A. My practice was a general practice of Otolaryngology, O-t-o-I-a-r-y-n-g-o+o-g-y; I hope I got that right. Head and neck surgery. But I did -- about half of my practice was taking care of patients with thyroid and parathyroid disease and doing thyroid, parathyroid surgery. Page 52 STEPHEN A. FALK, M.D. - BY MS. SMITH Q. Were you in private practice? A. I was in private practice. Q. Were you with a group? A. I was with a group. Q. And what was the name of the group? A. Well, it was basically me, my name. Q. Well, when you were with a group, who were you with? A. We basically were my name and the name of my associate. Q. Who was your associate? A. His name is Birken, B-i-r-k-e-n. Q. What's his first name? A. His first name is Eric, E-r-i-c. Q. How long did you practice with Dr. Birken? A. Oh, since 1979. Q. And from 1979 to early 2001, did you practice with anyone other than Dr. Birken? A. No. Q. Where was your office located? A. Our office was located in the Rochester environs, in some suburbs of Rochester. Q. You are going to have to say that again; Page 53 14 (Pages 50 to 53) Atkinson-Baker, Inc. 1-800-288-3376 ). 9D04D1 E STEPHEN A. FALK, M.D. AUGUST 5, 2003 1 STEPHEN A. FALK, M.D. - BY MS. SMITH 1 STEPHEN A. FALK, M.D. - BY MS. SMITH 2 Rochester? 2 volunteer position? 3 A. In the environs around Rochester, the 3 A. That is a -- when you say "volunteer," I 4 suburbs of Rochester. 4 don't know what you mean. 5 Q. Is that a northern word? 5 Q. Do you get paid for it? 6 A. Is that -- environs? I don't know. 6 A. No, I don't get paid for that. 7 Maybe that's regional. 7 Q. And are you actually doing anything as a 8 Q. You had me on that one. 8 clinical professor of surgery? 9 Where was it located? 9 A. Yes, I give conferences at the medical 10 A. It was in a town called Clifton Springs. 10 center. 11 Q. Okay. 11 Q. When's the last time you did that? 12 A. Which is east of here. 12 A. Last time I did that was probably two 13 Q. Okay. 13 years ago. I've given grand rounds in the Surgery 14 A. And a town called Canandaigua. Which is 14 Department there. 15 south of here. 15 Q. When's the last time you did that? 16 Q. You had two offices? 16 A. That was probably three years ago. As 17 A. I had two offices. 17 clinical professor of surgery we would have the 18 Q. Does Dr. Birken still practice in those 16 medical students and the residents, surgery 19 two offices? 19 residents rotate through our operating room in our 20 A. Yes, he does. Yes, he does. 20 private practice, and they would scrub in on the 21 Q. Are they -- is Rochester, is it Monroe 21 cases and help us. 22 County? 22 Q. Again, that was two to three years ago? 23 A. Monroe County, yes. 23 A. The last time I did surgery, yes. 24 Q. And were those two in the same county? 24 Q. Do you keep that title forever? 25 A. Those two were not in Monroe County, 25 A. No, it comes up for renewal down the Page 54 Page 56 1 STEPHEN A. FALK, M.D. - BY MS. SMITH 1 STEPHEN A. FALK, M.D. - BY MS. SMITH 2 it's actually a different county, it's actually 2 road. But I still am. 3 the next county over, which is Ontario County. 3 Q. What's required to renew it? 4 Q. And how big is the Rochester area? 4 A. What's required to renew it? Uhm, I'm 5 A. The environ is about a million people. 5 not exactly sure. Just activity. 6 Q. And that includes Clifton Springs and 6 Q. Will you qualify? 7 that Canandaigua -- 7 A. I probably will. I still will. I just 8 A. Canandaigua. You know, I -- I don't 8 wrote a new major chapter for a new textbook that 9 know exactly if that would be included. It may 9 was just published last couple of weeks. Still go 10 not be included because that's a different county. 10 to meetings. So I think I probably would. 11 I think for Rochester they usually include 11 Q. So it's not -- you don't actually have 12 Rochester and Monroe County. So I would say 12 to do anything in relation to the University to 13 that's probably not included in that. 13 maintain that designation? 14 Q. All right. Are those two both in -- 14 A. Well, you do have to do something for 15 those two places you had offices both in Ontario 15 the University to maintain that. I mean, the 16 County? 16 University does not like to give out titles 17 A. Correct. 17 without getting something in return. But if you 18 Q. And how many people are in Ontario 18 write a chapter for a book and you write some 19 County? 19 articles, you represent the University, that's 20 A. In Ontario County? You know, I'd be 20 representing the University, so that helps. 21 guessing. Maybe about 300,000 people. 21 Q. Who is the chairman of the Department of 22 Q. Is that further north? 22 Otolaryngology, head and neck surgery at the 23 A. No, it's south and east. 23 University of Rochester? 24 Q. You put on your letter that you're a 24 A. His name is Arthur Hengerer, 25 clinical professor of surgery. Is that a 25 H-e-n-g-e-r-e-r. Page 55 - ------ -- Pa";C-57- . 15 (Pages 54 to 57) Atkinson-Baker, Inc. 1-800-288-3376 1119/04 - Stephen A Faik, AD. Candenselt?L1 Alliance Shorthand. Inc Page 1 Page 3 I 1 2 IN rxt CIRCUIT COURT or Moon COUNTY, WEST VIRGINIA - - - - - - -- z - - - 2 STEPHEN A. F A L K M.D. 3 GARY SMI3RSR, SR., Admiaiscratorof the estate of Angela Dawn Swisher, 3 , , - called herein as a witness, fast 4 Ylai.htrtf, 4 being duly sworn, testified as follows; 5 Civil Ac v. Action No. 03-C-571 Jeffrey S. Read, Judge 5 DIRECT EXANGNATION BY M4. LAWTON: 6 ROBERT L. RUDOLP3, II, M.D., RONALD I 7 6 Q. Would you state your full name and your M CULS, M.D. and CAMD-CLRRX MMWRIAL HOSPITAL CORPORATION, 7 address for the record, please? N Defehdants. 9 s 8 A. Sure. It's Stephen Alan Falk. My address Deposition Upon oral Eseminatioh Of: 10 Stephen A. Palk, M.D. 9 is 350-Sandringham Road, Rochester 14610. 11 Location: Alliance Shorthand, Inc. 10 Q. Is that your residence address or business suite 1500 - The Penthouse 12 Alliance Building II address? 193. Main street cast 13 Rochester, Now York 14604 12 A. That's m residence. J 14 13 Q. Do you have a business address? i6 14 A. I do see patients at an office, but I don't 16 Date: Novanber 9, 2004 15 do any of -- this particular work I do out of my home. 17 16 Q. What is your office address? 19 T1SM: 10:11 a.a. 17 A. Office address, I do work out of an office 19 18 of Dr. Jules Musinger, and his address is Erie Street, 20 Reported By: Maria A. wolezyk, au 19 but he's moving. He's in the process of nnovin& and 21 Alliance Shorthand, Inc. 20 I don't know his exact new address. But it's in the 22 site 1500 - The Panthouse 21 process of coming. But Erie Street, Rochester is his 23 Alliance Building 22 old address, which he's vacating, 24 193 Main Street Bast 23 Q. What is your profession or occupation? 25 Rochester, New York 14604 24 A Well, I'm a surgeon. I don't 25 practice surgery right now, but I'm a surgeon. 1 Page 2 Page 4 2 Appearing on Behalf of Plaintiff 1 STEPHEN A- FALK, MD. - BY MS. LAWTON Rict I waif, teas. 3 2 Otolaryngologist, bead/neck surgeon.. And you know - Cdrcnra, Mci•imw WoY, PLI.C 5is Market strut 3 , , that's what I've done my whole life and still do. 4 ParlanaFnug, West Virgvsia 26101. 5 4 Q. Doctor, we're here today to take your 6 5 deposition in a lawsuit filed by Gary Swisher on 7 Appearing on Behalf of Ddendaht Ronald Michels, M.D.: 6 behalf of the estate of his daughter Angela Swisher. 13M v Y ; o & Bonmao B It's my understanding that you have been 200 ``ai Suter 9 Post a Box 3843 8 retained as an expert witness in that case.. Is that 10 (:Larieston, Walt Virgule 25338 9 your understanding as well? 11 10 A. Yes, I have been. 12 Appearing on Behalf of Defendant Ronald Michels, M.D.: 11 Q, And we're here today to find out, to further 13 Elizabeth S. Lawton, Esq. 12 explore your opinions. We have your report. So we'll Shumv-4 McQud¢y & sliver PLLC 14 405 Capitol Sn-m, suite 1007 P 13 be asking goes g you some lions today, ost Sox 1953 15 alJlz Virginia ena. West 25339 14 A. Oka y 16 15 Q. Have you bad your deposition taken before? 17 16 A. Yes, I have. is - 17 Q. How many times in the year 2004 that we're 19 18 in now have you been deposed? 20 1 9 A. Well, I keep a sheet. And the answer would 21 2 0 be -- I think this is the third one. 22 2 1 Q. Third one this year? 23 2 2 A. In 104, yes. 24 2 3 Q. So you're familiar with the ground rules, 25 2 4 and I don't believe there would be any need to go over 2 5 those unless you think that we need to have some opwiLmm, v. 1<cuuv1pn, el at. Page 1 - Page 4 --alliance -3hordmd, Inc. Conden=JC" 111-9/04 - Stephen A- Falk M.D. Page 5 Page 7 1 STEPHEN A FALK, ?i.D. - BY MS. LAWTON I STEPHEN A. FALK, M.D. - BY MS. LAWTON 2 discussion about what the rules and regulations of the 2 treatment of these patients? 3 deposition are. 3 A. Yeah, on occasion that happens, right. 4 A. I think they're probably the same in 4 Q. Well, how generally do you get these 5 New York as they are in West Virginia, so we could 5 patients? How do these patients come to you 6 probably proceed. 6 generally? 7 Q. Okay. The most important thing is that you 7 A. Mainly that way, uh-huh. 8 understand the questions that are asked of you and 8 Q. Is Dr. Musinger the only person then that 9 that you answer them accordingly. If you don't 9 consults with you at this location where you see 10 understand them, I would ask that you have them 10 patients? 11 repeated or rephrased until you do so that we will all 11 A. Yes, he's the only one. 12 be working on the same page when we have a transcript 12 Q. How many patients would you say that you 13 that reflects what was said here today. 13 see, say in a given week? 14 A- I understand. 14 A. It's part-time and it's consultative, so 15 Q. What is your -- and if you need to take a 15 it's very variable. Anywhere from none to, you know, 16 break at any time, just speak up. 16 ten. So it's very variable,. 17 A. Uh-huh- 17 Q. How many did you see last week? 18 Q. What is your date of birth? 18 A. Last week I -- none last week. This month, 19 A. February 24th, 1945. 19 none. It's very variable on, you know, what happens 20 Q. And your Social Security number? 20 and my schedule. I work part-time, you know. I've 21 A- Social Security number is 058-40-2642. 21 been practicing medicine for 30 years, so I'm taking 22 Q. And are you married? 22 the luxury of doing it more when I want to do it as 23 A. I'm married. 23 opposed to when I have to do it. 24 Q. What is your wife's name? 24 Q. Are you officially retired from the surgical 25 A. My wife's name is Marcia. And Falk. 25 practice? Page 6 Page 8 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 2 Q. And do you have any children? 2 A. I'm retired from surgery, that is correct. 3 A. Two children. 3 Q. When did you retire from surgery? 4 Q. And how old are they and what are their 4 A- Year 2000. 5 names? 5 Q. And was there a particular reason for your 6 A. It's Elizabeth and Benjamin. And they're -- 6 retirement? 7 Elizabeth's 24. And Ben is, man, I think he's 27. 1 7 A. Well, I got -- I was ill and ].really 8 can't believe it, he's 27, yeah. 8 couldn't do it any more, you know, keep that schedule 9 Q. Are your wife or either of your children 9 up. And I was into my -- well into my 50s and it was 10 involved in the legal field or the medical field? 10 time to, you know, slow down. t I A. No. No. Not at all. I 1 Q. So your last operation was performed !2 Q. You said earlier that you see patients at 12 sometime in 2000? 13 the office of Dr, Musinger; is that correct? 13 A. 2000 sometime, right. 14 A. That's correct. 14 Q. Do you know what month? 15 Q. How long have you been seeing patients with 15 A. Oh God. 16 him, or at his office? 16 Q. Or what part of the year; early, middle, ! 7 A. His office, this has been, oh, about two 17 late? t 8 years or so. 18 A. That I don't know. I mean I have to look 19 Q. And what kinds of patients do you see? 19 that up. I do not know. 20 A. They're consultative patients. All 20 Q. Was there a period of time that you didn't 21 different types, really, regarding otolaryngology; 21 do any medical work at all? You said you had been 22 head, neck surgery, a variety. 22 consulting with Dr. Musinger for about two years. 23 Q. And when you say "they're consultative," 23 A. No. 24 does that mean Dr. Musinger calls you in to offer a 24 Q. Was there a span of time where you did -- 25 medical consultation or an opinion regarding proper 25 A. No. After I stopped my surgery practice, Page 5 - Page 8 Swisher v. Rudolph, et al. I l/Y/t14 - ,-j n6II A- .Pa1K, M.y. Uanaenselt Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 22 23 24 25 STEPHEN A. FALK, M.D. - BY MS. LAWTON I still bad my own office and saw my own patients in my own office for a good while, a good year or two years after 2000. Probably about a year. So, you know, it was a transition. Q. I noticed on your CV, and I've marked all over of your CV, but I'm going to ask you just to verify if this is your CV? A. Sure. Q. And tell me if this is the most recent one? A. Well, it's probably a little - well, it's probably close to what I have. I brought one that I'm using now which is pretty much probably exactly the same, you know. It.may.be alittle upgraded. So, you know, if you want to use this one. Inicati they. are very, very close. Q. Do you have copies of this -- A. This is your copy, if you want this one, Q. Let me have both of those then. Do you have another copy for other counsel? A. No, I only brought the one. Pm sorry. Q. We'll mark it as an exhibit. A- -It should be substantially close to what you have, but. I don't know... Page 10 STEPHEN A. FA.LK, M.D. - BY MS. LAWTON (The following exhibit was marked for identification: Exhibit 1.) Q. Do you have any idea of what might be added to it or - A. I wrote a chapter in a textbook that was published in the last year. That may be on there; that wasn't on the other one. It would be under the -- I mean, you know, CV is a work in progress so I kind of add things as things happen so... Obviously I would have to look at both of them to tell you the answer. Q. The book chapters would be, or the new book chapter would be under "books," I take it? A. Yes. Probably would be under "books." Q. And that would be 2003 that you -- let's see, looks like you authored with Dr. Popat? A. Yes, that's correct. Q. "Surgery of the Thyroid and Parathyroid Glands"? A. Correct. Q. Saunders, 2003? A. Yes. Q. And that was Chapter 107 A. "Surgery for Hyperthyroidism," correct. Alliance 640rttland, Iuc. Page 11 1 STEPHEN A. FALK, MD. - BY MS. LAWTON 2 Q. Would that be the only addition or change to 3 the CV, that you're aware of? 4 A. Off the top of my head, you know. 5 Q. Okay. Doctor, you referred to a list 6 earlier when I asked you about depositions this year. 7 What is that list? 8 A. It's a list I keep of work that I do as an 9 expert witness, just to keep it organized, because 10 sometimes attorneys ask me what I do. And this way it you can see. 12 Q. Do you have a copy of that that we could - 13 A This is yours, yes. 14 Q. This is the only copy you've got with you? 15 A. It's the only copy I've got. 16 Q. Okay. We' 11 mark that as well. 17 (The following exhibit was marked for 18 identification: Exhibit 2.) 19 Q. Doctor, we were talking about your private 20 practice. In your CV, it says "private practice of 21 surgery, 179 to 2001." 22 A. Correct. 23 Q. Do you remember when in 2001 you terminated 24 your private practice? 25 A. It would probably be in late spring, early _ Page 12 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 2 summer, something in that range. 3 Q. And is that when you closed up your own 4 office and your private practice? 5 A. Yes. 6 Q. Were you in practice with anyone? 7 A. Oh, yes, I was in practice with a gentleman, 8 Eric Birken. Mainly him. He was really the only -- 9 when I left, there was a new person that came, but 10 1 really never worked with him per se. 11 Q. Did the practice have a name? 12 A No. 13 Q. Was it just Falk and Birl= or -- 14 A. Just us, yes. 15 Q. Not like Otolaryngology Associates, Inc. or 16 anything like that? 17 A_ No. We used that for a while and it was 18 just mainly us. You know, most people have trouble 19 pronouncing "otolaryngology" anyways, so the names 20 were easier. 21 Q. Where was your office located? 22 A. That office, we had an office in a town 23 nearby here called Clifton Springs. 24 Q. Was that your only location? 25 A_ We had an office also in a town called Twister v- xuaotpn, et at. Page 9 - Page 12 I V9104 - Stenhen A. Falk. M-A. Condenselt"m Alliance Shorthandr Inc- Page 17 Page 19 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 1 STEPHEN A FALK, M.D. - BY MS. LAWTON 2 A_ Absolutely, right. 2 Plus I've written a number of things with 3 Q. In the six months or so that it took to 3 some of the people at the University too, so that's 4 write that book chapter, what percentage of your daily 4 how that came about being. Gave a lot of 5 time or your weekly time did you spend working on the 5 presentations at meetings. And so basically that's -- 6 book or on the chapter, 5, 10 percent? 6 you know, it's not a -- it's a title. It's a totally 7 A. Yeah, that's a tough question. Yes, 7 voluntary position, there's no remuneration in any way 8 roughly. I mean, you know, at that point I worked 8 for it. And there's - the responsibility is 9 part-time, you could say I'm semi-retired, so the 9 basically up to you as far as how much you want to 10 nice thing about that is I can make. my schedule as 10 give to the students, the residents and the hospital- 11 I please. So I don't - as the spirit moves me, I can 11 Q. Since you left clinical practice, how much 12 do it. And that's nice. 12 time have you spent with the residents or medical 13 Q. But it wasn't an eight-hour-a-day, 13 students? 14 five-day-a-weekundestaking for six months, was it? 14 A. Mainly it's more of -- it's not with is A- No, no, not for that chapter. No, not for 15 patients much any more, it's more meetings, Journal 15 that, not for that piece. 16 Club, doing that book chapter that I had done with one 17 Q. And the book that you pointed to that you 17 of the young attendings there. So I do that. 18 have there today, "Second Edition, Thyroid Disease," 18 Q. And when did that book chapter get 19 is that the one you edited? 19 published? I know it says 2003, but do you know what 20 A. I edited and wrote a significant amount of 20 month in 2003 it became available? 21 it. 21 A. It may say on there. 22 Q..-What year is that book? 22 Q. I thought it just said 2003. 23 A. That came out in 1997. 23 A. You are talking about what month the book 24 Q. 197. Has that book been revised, or is 24 came out? That I don't know. 25 there anew edition of that? 25 Q. Before the end of the year though in 2003? Page 18 Page 20 I STEPHEN A. FALg, M.D. - BY MS. LAWTON 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 2 A i-Well, that actually is the second edition. 2 A. 2003. That's all I know. 3 We did the first one in 1990 and this is the second 3 Q. In 2004, what's your primary activity as far 4 edition. 4 as the practice of medicine? 5 No, we don't have a third one coming yet. 5 A. I'm working on some talks; 1 stall give 6 It's possible. Nothing yet. 6 talks. I have one next month coming up. So, you 7 Q. So you are not actively involved in drafting 7 know, I - I don't necessarily have a plan. I do it 8 a new -- 8 as I see, as I feel that I want to do it. 9 A. No, nothing active right now. This book 9 Q. Where is the one next month going to be? 10 actually is still extremely accurate and pertinent. 10 A. At the University. I I Q. Do you currently have any academic l I Q. And what's the topic going to be? 12 appointments? 12 A. The topic is probably related to the 13 A. Yeah. I'm still clinical professor of 13 thyroid. I would have to look. 14 surgery at the University here. 14 Q. Does the University decide the topic, or is 15 Ms. GZMINO: clinical. 15 that something you choose? 16 THE WrrNEss: clinical professor of surgery 16 A. We do it together. I mean... 17 at the University of Rochester. 17 Q. So right now you don't do any actual patient 18 Q. Is that an administrative or actual clinical 18 care where residents or interns are involved? 19 role? I mean since you are not practicing surgery, 19 A. Correct. 20 how do you carry out the duties of a clinical 20 Q. And has that been the same since you gave up 21 professor of surgery? 21 your private practice in 2001? 22 A. Well, it started when I was in practice, we 22 A. That's correct. 23 had medical students come and residents come down to 2 3 Q. And you said you still do talks and 24 our offices to work with us and also in the operating 2 4' lectures. How many have you done in 2004? 25 room pretty regularly, So it started there. 2 5 A. 2004. That would be the only one. V "XOAM A V. MUUUAPLI, GL M. Page 17 - Page 20 .kihanc„ Shorthand, Inc. %ondenseit " 11/9/04 - Stephen A. Falk, AD. Page 37 Page 39 1 STEPHEN A. FALK, LLD. - BY MS. LAWION 1 STEPHEN A. FA1.K M D. BY MS. LAWTON 2 medical work now? 2 Q. Were they designed to be concurrent? I mean 3 A- Between medical legal and everything I do? 3 was this a concurrent program with your work at NTH by 4 Q. Everything, uh-huh. 4 design or just -- 5 A. Yeah, probably 20 percent I mean it 5 A. Oh, no, no. That was my own. I just did 6 varies. I mean I do my own reading, I go to 6 what I wanted, I entered that program there. 7 conferences. I mean I'll go to medical society 7 Q. What was your research work at N m 8 meetings when I want to, you know, if it's the right 8 A. Researching at NTH was really on toxicology. 9 hour. So I still do that, those things. 9 It was more toxicology. This is before I did my 10 Q. But even with those, 20 to 25 percent of 10 residency in surgery and in otolaryngology. So I was 1 your time then, maybe? 11 doing more toxicology work. I did work on hearing 12 A. Yeah, probably in order of that. I mean 12 loss, because I was planning to go into ENT work, so 3 some months more. Some months less. 13 I did work on toxicology of hearing loss. And it was 14 Q. And that's been pretty true since you 14 experimental work, laboratory experimental work. 15 retired, or semi-retired? 15 Q. Now it looks to me like you completed your 16 A. Pretty much, right 16 ENT residency in '78. Is that correct? 17 Q. Sounds like you've got a lot of time for 17 A. That's correct. 18 relaxing and doing what you want to do. 18 Q. And then did you start right away into 9 A. Yeah, that's the idea. But I still love 19 private practice? 20 medicine and I like to do it. 120 A. Pretty -- about a year after I did. I was A Q. Just keep your finger in the pie, huh, so to 21 in practice in California at an Hmo called Kaiser for 12 Speak? 22 maybe nine months. Just a very short time. Just a '3 A. I have a very good background in it and I 23 little transition. A feel that, you know, I still like to stay active in 24 Q. That was sNr or. otolaryngology? it. 25 A. Yes, ENT, r worked in that and I then I came Page 38 Page 40 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 2 Q. We didn't talk yet about your education. 2 back East to a private practice situation. 3 1 think that's pretty set out in your -- pretty well 3 Q. Where are you from originally? 4 set out in your curriculum vitae. 4 A. I'm from the New York City area. 5 You did your medical school training at 5 Q. So you were just coming back close to home 6 New York University? 6 sort of? 7 A. That's correct. 7 A. Closer to home. Kids were coming along and 8 Q. And an internship at Miami Jackson Memorial 8 my wife and I thought it would be best to come back 9 Hospital? 9 and be with the grandparents, that type of thing. 10 A- That's correct. 10 Q. As a clinical professor of surgery at the 11 Q. Was that a general internship, sort of a 11 University of Rochester, if I put your name into their 12 floating or rotating internship, or was that specific 12 database, would I pull your name up as faculty? 13 to surgery? 13 A. Well, I'm really -- I'm not full-time 14 A. That was --- that was really a rotating, 14 faculty, I'm not paid faculty, and I mentioned that 15 which they don't really have any more. It was more of 15 before. I don't know. I've done that -- you probably i6 a medical and surgical. 16 would, yeah. Because -- you probably would. 17 Q. And then it looks like you took a couple 17 Q. Do you have to be recredentialed at any is years off and did some postdoctoral studies in 18 particular time to be considered a clinical professor? 19 epidemiology and biostatistics at University of 19 A. Yeah, there probably is a recredentialing 20 North Carolina. Did you get an M.Ph., or did you 20 every three or five years, l suppose. complete that course of study? 21 Q. When is the last time you went through that '2 A. No, I did not. I did that work as I was 22 process? '3 working at the NIH in the Research Triangle Park, 23 A. I don't remember. A couple years ago, 24 North Carolina. So I did both of those things 24 probably. Don't remember. 25 together from about '71 to 173, 25 Q. Do you have to show that you are doing any 'age 37 - Page 40 Swisher v. Rudolph, et al. '- T, 9i104 - Stephea A. Faik., M.D. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 i5 16 17 18 19 21 22 23 24 25 Page 41 STEPHEN A. FALK, MD. - BY MS. LAWTON ;rind of clinical work to be a clinical professor? By clinical work, I mean seeing patients, doing surgery. A. No. No, you don't. Q. So you can be a clinical professor and like you said, go to the journal clubs? A. Right. Q. And do a lecture here and there? A. Yes, right. Q. It's sort of - as I understand it, sort of an honorary position? A. Well, I don't think they would let me keep it if I didn't earn it before. Let's put it that way. Q. Right. But currently it's more of an honorary position than it is an active position? A. Right. I am active but limited- Q. Limited activity? A. But if I came over now never having done work for the University and said "I'd like to be clinical professor," again, there's no remuneration involved. It's just, you know; the title, really. Q. And you are-Board certified? A Yes, I am. Q. In what fields? Page 42 STEPH13N A. FALK, MD. - BY MS. LAWTON A. =Otolaryngology. Q. Are you Boarded in general surgery as well? A. No, I'm not. Q. When did you get your Board certification in otolaryngology? A. That was 1978. Q. So you were able to be Board certified as soon as you completed your residency? A. Correct. Q. Did that require written and oral examinations? A. It did. Q. And how many times did you have to take each of those? A. Well, there was one written, there was several -- well, there was several written tests that you have to take, and I don't -- well, you mean in the testing? Q. Let me ask this question. A_ I don't understand the question. Q. Did you ever have to repeat either of the oral or written examinations for the - A. No. Q. Didn't fail any of them7 nselt- - AtImct- Jhorthand, lac. Page 43 1 STEPHEN A. FALK, MD. - BY MS. LAWTON 2 A. No, didn't fail any of them. 3 Q. Have you had to be recertified since 1978, 4 or were you grandfathered in? 5 A. I'm grandfathered. 6 Q. So you don't have to ever get recertified in 7 that, by that Board? 8 A. I do not, that's correct. 9 Q. Are you licensed still? I guess, since you 1o see patients occasionally, you are licensed? I 1 A. Yes; oh, yes, I am very much licensed. 12 I better be. 13 Q. And you are licensed just in New York? 14 A_ Just New York. 15 Q. Don't keep any other licenses? 16 A. No. 17 Q. Have you been licensed in other states? 18 A. Yes, I've been licensed in probably every 19 state I've worked in. North Carolina, Florida, 20 Colorado, California, but I dropped them all along the 21 way. 22 Q. Did you just let them lapse, or did you 23 actually actively withdraw your license? 24 A. You know, I believe I would probably send 25 them a letter saying, that I'm withdrawing. But then Page 44 1 STEPHEN A. FALK M.D. - BY MS. LAWTON 2 again, it may have lapsed. I mean I moved away and 3 I didn't see any point keeping the license. 4 Q. Have there been any disciplinary actions 5 taken against your license in New York? 6 A. Never. 7 Q. No restrictions ever put on it? 8 A. Never. 9 Q. How about any of the other states where you 10 were licensed? 11 A. No. 12 Q. Have there been any claims or complaints 13 filed against you with any of the Boards of Medicine 14 in any of these states? 15 A. I am aware of absolutely no complaints 16 whatsoever ever. 17 Q. Have you been involved in any medical 18 malpractice cases as a defendant? 19 A. I was a defendant once. 20 Q. And when was that? 21 A_ That was about year 2000. 22 Q. And what was that case about? 23 A. It was a case on -- it was an ear surgery 24 case where the patient did not get a good result. And 25 it went to trial and, you know, we won. Swisher v. Rudolph, et a1. Page 41 - Page 44 glance Shorthand, Inc. Candenselt v Page 45 2 3 4 5 6 7 8 9 10 11 12 '3 14 '_5 16 17 18 '.9 >-0 21 22 3 24 25 STEPHEN A. F.ALK, M.D. - BY MS. LAWTON Q. Were you the only defendant, the only doctor named as a defendant? A. Yeah, I was the only defendant. Q. And where was that pending, was that here? A. That was in -- that was really in Ontario County, which is the county directly south of here. Q. Has that been the only case that you've ever been named in? A. Yes, that's the only case I ever had, that I was named in, that -- in any way. Q. Since you've been retired, do you maintain any hospital privileges? A. No, I gave up my hospital privileges. Q. Where did you have privileges before you gave them up? A. 1 had privileges at Strong Memorial Hospital, which is the University here. Q. Strong? A. Strong Memorial, which is at the University. At a hospital called Thompson Hospital. And Clifton Springs hospital. Those are the main ones. Q. Is Thompson Hospital in that town where you had your other office? A. Yes, the Canandaigua one, right there. Page 46 1 STEPHEN A. FALK, M.D. - BY MS. LAWTON 2 Q. And I take it Clifton Springs is in the 3 other one? 4 A. Is in Clifton Springs, right. 5 Q. Did you voluntarily give up your privileges? 6 A. Yeah, I gave them up. I sent them a letter 7 saying it was time to just give up. 8 Actually I may still have what's called a 9 consulting privilege where I could go in and see a .0 patient if I wanted to, or if they called me. 1 Q. But you don't do that? .2 A. I don't do it Or I could probably get that 3 by calling up the people there because they knew me 4 well. But I don't do that. 5 Q. Was spring or summer of 2001 the last time 6 you saw a patient in the hospital? 7 A- A hospital patient that I saw myself? 8 Yes, right. 9 Q. Do you keep copies of your lectures or the >.0 handouts that you give at some of your lectures? 11 A_ Well, some I do, some I don't. I mean, I've !2 given lot of lectures over the years. A lot of that !3 material is -- flows, it's on a computer, and as A things change you modify it So the answer to that :5 question is some things I have. Many things are -- age 45 - Page 48 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 ?2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11/9%04 - Stepnen A. iaik, M.D. Page 47 STEPHEN A. F ALK, MD. - BY MS. LAWTON medicine is changing so whatever you have, to keep it up-to-date you modify it So the answer to your question is, I have some things but most things I probably don't. Q. Do most of your presentations and lectures mirror what's in your textbook if they're on thyroid conditions? A. Yes and no. Many things do. Many things don't. I've given talks to the American College of Surgeons on the genetics of thyroid disease. And I'm not a geneticist, but they asked me to give a talk on that. And I gave one at the American College of Surgeons in Chicago. That's not in my book at all. But so the answer to your question is many of the talks do come from the book, but I have a lot of material, huge amounts of material that I can draw on. Q. If your topic is thyroid surgery, does that mirror pretty much what's in your book? A. When the topic is thyroid surgery, it will. It depends. Lots of it will come from here (indicating). But again, I have so much material that you assemble over the years that, you know, I could bring that out Depends on what the talk is. And Page 48 STEPHEN A. FALK, M.D. - BY MS. LAWTON depends on what the audience is, too. Q. In preparing for this deposition or to prepare your report in this case -- A. Right. Q. -- did you do any independent medical research, or did you rely primarily on the research that you've done over the years on thyroid conditions? A. I just relied on what I know already, and my experience already. Q. And on your books and articles you've authored? A. Well, I didn't use any of those specifically. I just relied on my general knowledge and experience. Q. Just off the top of your head without going back through this, do you know if there were ever any other cases that you reviewed from a medical legal perspective that dealt with the specific -- the same set of -- same or similar set of facts as the Angela Swisher case? A. And those facts being what? Q. A patient with Graves disease and thyroid surgery, those two elements specifically? A. Oh, yes, I have those, right. Swisher v. Rudolph, et al. 119/04 - Stephen A. Faik, M-D. Cnndenselt- ?age 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 23 24 25 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STEPHEN A. FALK M D. - BY M5. CIMINO Q. I understand from your earlier testimony that after you closed your practice in the late spring or summer of 2001 you took some time off to travel. I think you said about a month? A. Right, about a month, right. Q, And then how long was it before you started working with Dr. Musinger? A. It was very shortly after that. I can't give you dates. But very shortly after. Q. Well you working with Dr. Musinger in 2001? A. Probably, yes. Yes. Yeah. Q. Are there any records which would show when you started working with him? A. I don't know. I would have to see. Q. What is your compensation arrangement with Dr. Musinger? A. A lot of times I don't even get paid. I mean I just see his patients with him. I see my own patients. It's - I'm not interested in compensation, per se. Q. So: when you say that he consults you to see certain. patients, are you consulted and then you see the patient and then you continue to follow the patient? Page 146 STEPHEN A. FALK, M.D. - BY MS. CIMINO .Aa-=-Xo;:I don't have - I don't want a situation where I have an ongoing patient care responsibility. So it's really his patient that I see with him You know, I may see with him, I may see them without him, we may see them back-to-back. I don't -- you know, it isn't that - if the patient needs a follow-up next time and I'm not there, he will do the. follow-up. Q. Even if it's a thyroid patient? A. Yeah. I mean within reason, yeah. He'll do it. Q. Can you tell me approximately how many consults you do with him a year? A. When I'm there, probably, uhm, you know, when we're there probably several dozen, maybe more. I mean it's very variable. Q. I understand. A. It's very variable. Q. But again -- A. Again, my practice is -- Q. You don't get paid for it? A. I generally don't get paid, no. Q. But can you tell me on average how many consults you get from him a year? A. I would say in the reference of, you know, -uhance Jholthan(, inc. Page 147 1 STEPHEN A. FALK, MD. • BY W. CIl1BNO 2 50 to 100, something lice that, patients that I see 3 with him or by myself at his. office. But it's very 4 variable. 5 Q. Now, when you see - 6 A. And also he's moving his office now, so 7 I really have not been doing much. 8 Q. Do you intend to follow him to his new 9 office? 10 A. Oh, yeah. Oh, yeah. 11 Q. When you see patients of Dr. Musinger's 12 without him being there with you, do you prepare a 13 report or do you send him a letter, or what type of - 14 documentation do you 15 A. Usually -- 16 Q. Let me finish my question. 17 A. I'm sorry. 18 Q. -- documentation do you make concerning that 19 type of visit? 20 A. Usually I consult. with him right there and 21 he does the documentation. I don't want the 22 paperwork. I don't want - I'm willing to talk about. 23 the case, give my input. I don't want the paperwork 24 of dictating, of signing things later„having to come 25 back and sign things. I don't want the responsibility Page 148 1 STEPHEN A. FAIR, M.D. - BY MS. CIMINO 2 of getting called in the middle of the night if 3 there's a problem. So he handles all that. 4 Q. So if I were to open a file of 5 Dr. Musinger's that you had the occasion to evaluate 6 the patient - 7 A. Right. 8 Q. -- I would not find-any office progress note 9 that was written by you? 10 A. Generally not, no. That is correct. That 11 is correct. 12 Q. You mentioned that you are still appointed 13 on the faculty at the University of Rochester School 14 of Medicine? 15 A. That's correct. 16 Q. And as I understand it, at this point you 17 are primarily doing meetings and journal clubs; is 18 that correct? 19 A. Yeah, journal clubs, meetings, talks. 20 Q. How much time, how much of your time is 21 devoted to your academic duties? 22 A. Well, as we discussed, you know, it's very 23 variable. You know, between some meetings, you know, 24 medical society meetings, I mean I go to a number of 25 different meetings. I don't always go to ENT Swisher v. Rudolph, et aL Page 145 - Page 146 i l join q+PnhP % _t Fnur u. T) C'antimmwlt? :-+ Nance Shorthand., inc. Page 153 Page 155 1 STEPHEN A. FALK, M.D. - BY W. CMUNO 1 STEPHEN A PALK, 14D. - BY MS. CMf NO 2 have to look, of year '01, my office practice, okay? 2 A. Oh, yeah, absolutely. 3. And was just seeing patients, outpatients, a lot of my 3 Q. In your practice, did you. ever refer 4 own patients, cancer patients that I was following. 4 patients to endocrinologists for thyroid disease? 5 So in 2001 when this happened, I was, yeah, 5 A. Oh, yeah, I work very closely with 6 basically stopping my clinical practice. It may have 6 endocrinologists all the time. 7 been right before then that I stopped. Again, I would 7 Q. And in what, circumstances would you refer 8 have to look It was probably a little bit before 8 your patients with thyroid disease to an 9 then, right. 9 endocrinologist? 10 So to answer your question, in 20011 had 10 A. You know, if it was a difficult case, 11 closed my private practice down. 11 I wanted another person to look at it, it would be 12 Q. And approximately, only approximately 20 12 either a telephone consult where I would call them, 13 percent of your time was devoted to medical work? 13 or have the patient ,go. 14 A. Yeah. I mean on average, right. Right. 14 1 mean we've had cases of inherited 15 Q. Back before you retired from practice, as 15 medullary thyroid carcinoma, which is a complex 16 I understand you had an ENT practice? 16 disease where genetic testing is needed, and 17 A. Uh-huh. 17_ I would get in other experts that were needed and 18 Q. How much of your ENT practice was devoted to 18 that was circumstance. So it's very varied. I mean, 19 thyroid patients? 19 generally most of the things 1 was able to handle 20 A. Well, a lot, because I had a special 20 myself, but I worked -- patients went both ways, from 21 interest. Probably if you look at thyroid and 21 endocrinologists to me and from me to them. 22 parathyroid disease together, which we would look at 22 Q. The endocrinologist would typically consult 23 it that way, probably about half my patients with 23 you when a patient was ready for thyroid surgery; is 24 thyroid and parathyroid. An unusual kind of practice. 24 that right? 25 Q. Do you hold yourself out to be an expert in 25 A. Yeah, or if they were thinking about thyroid Page 154 Page 156 1 STEPHEN A. FALK, M.D. - BY MS. CBvflNO 1 STEPHEN A. FALK, M.D. - BY MS. CUAD40, 2 the field of endocrinology? 2 surgery, absolutely, right. But actually some of the 3 A Well, I'm not a -- as I said before, I'm not 3 endocrinologists even referred me thyroid cases that 4 an endocrinologist. I do hold myself out to be an 4 were more bread and butter, you know, just what do you 5 expert in the area of thyroid disease and surgery and 5 think.of this. We had..an active exchange. 6 parathyroid disease and surgery. 6 Q. When did you relinquish your hospital 7 Q. And to the extent that obviously overlaps 7 privileges? 8 , with endocrinology, you hold yourself out as an expert 8 A. That I did by letter voluntarily really 9 in those fields? 9 probably in '01 when I decided to close my practice 10 A. In that aspect. I'm not an expert in 10 down. I said I'm probably not going to see patients 11 diabetes, which endocrinologists manage, or many of 11 in the hospital any more. So again, I have to be 12 the other disciplines that endocrinologists do. 12 responsible, you have required meetings you have to go 13 Q. And I think you mentioned you are not Board 13 to. 14 certified in endocrinology; correct? 14 Q. So that would be sometime in 2001? 15 A. I am not, correct. . 15 A. To answer your question, sometime in 2001, 16 Q. And you are not even Board eligible in 16 right. 17 endocrinology; correct? 17 Q. Of the cases you reviewed, going back to 18 A. That's right. 18 Exhibit number 1, have any of the cases involved preop 19 Q. And there is a discrete subspecialty dealing 19 preparations of thyroid patients? 20 with the treatment of patients with thyroid disease; 20 A. No. No. This is the first time this has 21 is that correct? 21 happened. 22 A. Within endocrinology, you mean? 22 Q. You might have been asked this question 23 Q. Endocrinology is a discrete specialty 23 earlier, and if so I apologize. 24 dealing with treatment of patients with thyroid 24 A. That's okay. 25 disease? 25 Q. I understand from reviewing your updated cv Swisher v. Kndolph, et at. Page 153, - Page 156 Stephen A. Falk, M.D. ':,z;6-/39,/0 June 13, 2005 Page I 1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 2 IN AND FOR THE COUNTY OF KING AT SEATTLE 3 4 DEBORAH ANN HANSON, 5 Plaintiff, 6 7 vs. No. 03-2-20134-1SEA 8 9 JONATHAN CHINN, M.D., and 10 JONATHAN CHINN, M.D, INC., 11 Defendants., 12 13 DEPOSITION OF STEPHEN A. FALK, M.D. 14 Taken on behalf of Defendant: 15 June 13, 2005 16 --- 17 BE IT REMEMBERED THAT, pursuant to the Washington 18 Rules of Civil Procedure, the deposition of Stephen A. 19 Falk, M.D. was taken before JoAnn Bowen, 42695, a 20 Certified Shorthand Reporter and Registered Professional 21 Reporter, and a Notary Public for the State of 22 Washington, on June 13, 2005, commencing at the hour of 23 9:12 a.m., the proceedings being reported at Naegeli 24 Reporting Corporation, 601 Union Street, Suite 1624, 25 Seattle, Washington 98101. Stephen A. Falk, M.D. June 13, 2005 Page 34 1 1 A. Yes, he was. 2 Q. And would you agree it was appropriate to 3 refer Ms. Hanson to an endocrinologist? 4 A. Yes. Absolutely. 5 Q. Would you agree with me it was appropriate and 6 within the standard of care for Dr. Chinn to rely upon 7 Dr. Kanter to diagnose her thyroid condition? 8 A. I thought I answered that one. Yes. 9 Q. And then, Doctor, is it clear -- would you 10 agree with me that Dr. Kanter was deciding what 11 medications to provide Ms. Hanson for his diagnosis of 12 Hashimoto syndrome and subacute thyroiditis? 13 A. Yes, he was. 14 Q. Do you rely upon endocrinologists in your 15 practice? 16 A. Yes, I do. 17 Q. Do you currently have a clinical practice? 18 A. Not an active clinical practice, no. 19 Q. What does that mean? 20 A. I do not have my own practice anymore. I -just 21 see patients on a consultative basis at times. 22 Q. Okay. 23 A. So, I don't have my own office anymore. 24 Q. Do you have hospital privileges? 25 A. Presently, no. I gave them up voluntarily. Stephen A. Falk, M.D. June 13, 2005 Page 35 1 1 Q. When? 2 A. This was several years ago. 3 Q. What year? 4 A. This was probably in -- probably in 102 for 5 the most part. 6 Q. Do you recall what year it was? 7 A. It's either 101 or 102. Something like that. 8 Q. And, Doctor, are you an American -- are you a 9 member of the American Board of Otolaryngology at the 10 present time? 11 A. Yes. I'm board certified, yes. 12 Q. Are you a member of the American College of 13 Otolaryng ology? 14 A. Well, there's no such thing. There's an 15 American College of Surgeons. There's American Academy 16 of Otolar yngology and Surgery. 17 Q. I thought that's just what I said. Did I 18 misspoke? 19 A. You said the American College. 20 Q. I'm sorry. I meant the American Academy of 21 Otolaryngology. 22 A. I was a member for 25 years. I basically 23 into an inactive mode. 24 Q. When? 25 A. I'm not sure when exactly. Stephen A. Falk, M. D. June 13, 2005 Page 36 1 Q. You're not currently a member of the American 2 Academy of Otolaryngology, are you? 3 A. No, I'm not a dues paid member, but I still 4 get. bull etins and I still get correspondence. 5 Q. My question is very simple. You're not a 6 member; isn't that correct? 7 A. I think I am a member as a retired or as a -- 8 no. I s till get materials from them. So, I don't know 9 what sta tus my membership is. But I don't pay dues, and 10 I do get some materials. 11 Q. Are you listed as a member of the American 12 Academy in their current roster? 13 A. I don't know. 14 Q. When was the last time you were listed as a 15 member? 16 A. I don't know. 17 Q. When you say you do consultations, who do you 18 do consultations for? 19 A. I see patients with a physician in Rochester. 20 His name is Dr. Musinger. 21 Q. How do you spell that for the court reporter? 22 A. M-U-S-I-N-G-E-R. 23 Q. Okay. And how often do you do consultations? 24 A. Just when he needs me and when I want to do 25 it. So, it's very irregular. We don't -- Stephen A. Falk, M.D. June 13, 2005 Page 37 1 1 Q. How often have you done them in 2005? 2 A. 2005, I'd have to look at my schedule. 3 Probably once. Maybe none. I'd have to look at my 4 schedule. 5 Q. How about 2004? 6 A. Several times. I don't remember when. But 7 several t imes. 8 Q. And you do consultations for what? 9 A. I see patients in the office with him. we 10 enjoy the camaraderie. We discuss the patients. I think 11 we help t he patients, too, by discussing them together 12 and doing that. 13 Q. Consultations for what medical conditions or 14 medical i ssues? 15 A. Well, if he has any thyroid problems, I will 16 often see those patients with him. But we also see other 17 general o tolaryngology problems and head/neck surgery 18 problems. A whole variety of patients. 19 Q. What type of doctor is Dr. Musinger? 20 A. He's an otolaryngologist. 21 Q. Do you get paid for your consultations? 22 A. No, I do not get paid. 23 Q. When was the lass time you were paid for a 24 consultat ion regarding otolaryngology? 25 A. Probably in the year 2002 maybe. Stephen A. Falk, M.D. June 13, 2005 Page 52 1 Q. And then if you cut into the thyroid tissue in 2 order to perform the surgery, you'd agree with me that 3 the thyroid tissue would appear the same as the 4 parathyroid? 5 A. I didn't say the same. I didn't say the same. 6 It can look similar to the parathyroid. But there are 7 differences you can still see between the two. A 8 parathyroid and thyroid tissue looks different, if you 9 look carefully. 10 Q. And how do they look different? 11 A. Well, it's kind of like -- you :know, it's kind 12 of like describe the difference between -- you're asking 13 for a description in language that you really can't -- 14 you really can't put into words. It's the surface, it's 15 the architecture of the tissue, the tightness of the 16 tissue. It's like the difference between two carpets you 17 look at. One is one carpet, one is another carpet, but 18 you can say those are different by the texture of the 19 surface, the lines of it, how the parts of it are made. 20 It's very hard to describe. 21 Q. Now, Doctor, at the present time are you 22 providing any -- are you doing any teaching? 23 A. Do I do any teaching right now? I do go to 24 some conferences. Very informal. I don't do anything 25 formal. I'll put it that way. Stephen A. Falk, M.D. June 13, 2005 Page 53 1 Q. Okay. You don't do any didactic teaching? 2 A. Right now, no. 3 Q. Are you currently a member of the American 4 College o f Surgeons? 5 A. I'm in the retired -- what we talked about 6 before. I get their bulletin. I get their literature. 7 I think i f you look me up you'll see I'm either retired 8 or emerit us. I don't. know had term they use. 9 Q. But you are not an active member of the 10 American College of Surgeons? 11 A. When you say "active," I'm not exactly sure 12 what that means. I don't pay dues. I can tell you that. 13 Q. Are you a current member of the American Head 14 and Neck Society? 15 A. Same on that, too. 16 Q. Do you know the last time you paid dues to 17 belong to that organization? 18 A. All of them I would say was maybe in 102 I 19 stopped, roughly. 20 Q. Now, in this case did you make a determination 21 how enlarged the thyroid was as of April 11, 2000? 22 A. Well, I went by -- yeah, I made a 23 determination, yes. 24 Q. How large was it? 25 A. Well, it was described as about three times , . , CERTIFICATE OF SERVICE AND NOW, this 71n day of September, 2010, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing DEFENDANTS' MOTION IN LIMINE TO PRECLUDE TRIAL TESTIMONY OF PLAINTIFF'S EXPERT upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed. as follows: By First-Class Mail: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff, Joseph P. Martinec) Francis E. Marshall, Jr., Esquire GRACE M. MARTINEC, IN THE COURT OF COMMON PLEAS OF Personal representative of CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH P. MARTINEC, Deceased, Plaintiff v WESLEY D. VANDER ARK, M.D.,: And ENT FACIAL PLASTIC SURGERY GROUP, P.C., . Defendants CIVIL ACTION - LAW NO. 2005-1626 CIVIL TERM JURY TRIAL DEMANDED IN RE: MOTION IN LIMINE ORDER OF COURT AND NOW, this 8th day of September, 2010, Defendant's Motion in Limine To Preclude Pursuit of a Theory of Corporate Negligence on the part of the Plaintiff at trial is granted pursuant to an agreement of counsel reached at a pretrial conference. Charles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1250 For Plaintiff rancis E. Marshall, Jr., Esquire Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 For Defendants Court Administrator :mae C ~ ~s ,~.~.<<~.. 4 Q~rv ~~ .,..~. fi ~ ~ , ~~ ~' t -~ ~`-~ ~ .7 . ~.. ~ ~' ~ '~ By the Court, GRACE M. MARTINEC, Personal representative of JOSEPH P. MARTINEC, . Deceased, Plaintiff v . WESLEY D. VANDER ARK, M.D.,: And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1626 CIVIL TERM JURY TRIAL DEMANDED IN RE: CAPTION AMENDMENT ORDER OF COURT AND NOW, this 8th day of September, 2010, pursuant to an agreement of counsel, the caption in this case is amended to reflect that the Plaintiff is the personal representative of Joseph P. Martinec, deceased, Grace M. Martinec. Charles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1250 For Plaintiff /Francis E. Marshall, Jr., Esquire Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 For Defendants Court Administrator :mae Q ~~l j~ G v t~~a ~ -- f F _. c~ ~ ri~~,:. ! ~ :T~ :'~? ~ _ ~,~ ~'; O ~ z ^~ ~? ~ ~ ~ ~ r.A By the Court, GRACE M. MARTINEC, Personal representative of JOSEPH P. MARTINEC, Deceased, Plaintiff v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1626 CIVIL TERM WESLEY D. VANDER ARK, M.D.,: And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE A pretrial conference in the above-captioned case was held in the chambers of Judge Oler on September 8, 2010. Present on behalf of Plaintiff was Charles E. Wasilefski, Esquire. Present on behalf of Defendants was Francis E. Marshall, Jr., Esquire. This is a professional negligence action, including a claim of lack of informed consent, for personal injury arising out of an alleged puncture wound during sinus surgery, leading to meningitis. Plaintiff has since died of unrelated causes and Plaintiff's personal representative, Grace M. Martinec, has been substituted as Plaintiff in this case. Defenses include a contention on the part of Defendants that there was no deviation from the pertinent standard of care by Dr. Vander Ark. This will be a jury trial in which, pursuant to an agreement of counsel, each side will have 4 peremptory challenges, for a total of 8. The estimated duration of trial is 3 days. To the extent that any deposition testimony will be shown or read to the jury and contains objections being pursued by counsel and requiring rulings by the trial court, counsel are directed to furnish copies of the affected deposition transcripts to the Court at least 5 days prior to commencement of trial, with the areas of objection being pursued highlighted, and with brief memoranda in support of their respective positions on those objections. It is noted that Defendants' expert is expected to be available for testimony only on the Tuesday afternoon of the week of trial term. The Court has advised counsel to discuss this issue with the Court Administrator, who is responsible for scheduling of trials. No assurance can be given at this time that the Court's schedule will permit his testimony to be received at that precise time, and counsel may wish to consider deposing that witness for purposes of trial testimony. Defendants have filed two motions in limine, one of which seeks to preclude testimony of Plaintiffs expert on the ground that his present status does not qualify him under the M-CARE Act to testify as an expert, and the second of which seeks to preclude evidence of corporate negligence with respect to Defendant ENT Facial Plastic Surgery Group, P.C. Plaintiff's counsel has conceded the second motion, and is in the process of reviewing the first motion. Consequently Plaintiff will not be permitted to pursue an issue of corporate negligence in this case, and Defendants' motion in limine with regard to that issue will be granted. Plaintiff's counsel has indicated that he will be filing an answer to the first motion, and counsel are requested to contact the Court Administrator if they feel that a brief hearing on this motion well in advance of trial would be appropriate With respect to settlement negotiations, it does not appear to the Court that this case will be settled without a trial. arles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1250 G. G' For Plaintiff ~ ~ ~~ ~~ancis E. Marshall, Jr., Esquire ~, ~' ~~" ~ ~ ~ ~ ~ Suite 205 1200 Camp Hill Bypass c'' -v ~ -~ ~~ 3 ;, Camp Hill, PA 17011-3700 ~i tv ~j ~ For Defendants ~ cn t,~ Court Administrator :mae ~P~~ Q~4~<~ /' /yt~ L By the Court, JOSEPH P. MARTINEC, Plaintiff V. WESLEY D. VANDER ARK, M.D., and ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 05-1626 CIVIL TERM IN RE: DEFENDANTS' MOTION IN LIMINE ORDER OF COURT AND NOW, this 14`' day of September, 2010, upon consideration of Defendants' Motion in Limine and of the Response of Plaintiff, Estate of Joseph P. Martinec, to Defendants' Motion To Preclude Testimony of Plaintiff's Expert, a hearing is scheduled for Friday.. September 17, 2010, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. -' Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110-1250 Attorney for Plaintiff rancis E. Marshall, Jr., Esq. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Attorney for Defendant :rc nn__ w f, as r-nz 1 LCCL 4fts/to 'Ii-rey'1 c? c n d I~ CO -4 c:. `J C_'1 =b ?.r -ra l BY THE COURT, JOSEPH P. MARTINEC, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW WESLEY D. VANDER ARK, M.D., and ENT FACIAL : PLASTIC SURGERY GROUP, P.C., Defendants NO. 05-1626 CIVIL TERM IN RE: DEFENDANTS' MOTION IN LIMINE TO PRECLUDE PLAINTIFF'S EXPERT FROM TESTIFYING AT TRIAL ORDER OF COURT AND NOW, this 20'h day of September, 2010, upon consideration of Defendants' Motion in Limine To Preclude Plaintiff's Expert from Testifying at Trial, and following a hearing held on this date, the motion is denied. Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110-1250 Attorney for Plaintiff Francis E. Marshall, Jr., Esq. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Attorney for Defendant :rc 411 I "L i°'1 C- r. a rnw ;n m--1 rrl _ =M r -k -< > p is 3 > xo a, , T o - F3 y, c M BY THE COURT, JOSEPH P. MARTINEC, Plaintiff V. WESLEY D. VANDER ARK, M.D., and ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 05-1626 CIVIL TERM IN RE: DEFENDANTS' MOTION IN LIMINE TO PRECLUDE CORPORATE NEGLIGENCE CLAIM AGAINST ENT FACIAL PLASTIC SURGERY GROUP, P.C. ORDER OF COURT AND NOW, this 201h day of September, 2010, upon consideration of Defendants' Motion in Limine To Preclude Corporate Negligence Claim Against Ent Facial Plastic Surgery Group, P.C., and pursuant to an agreement of counsel reached at a pretrial conference on September 8, 2010, the motion is granted. Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110-1250 Attorney for Plaintiff Francis E. Marshall, Jr., Esq. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 Attorney for Defendant :rc eop,iuamo,* c(Y C?)? 4lavlio C-) G -am ?m 5E= U) r- xo 5:c C,n rri N ?vx c. -a p CD-?, ors a? BY THE COURT, .. .- ~ , GRACE M. MARTINEC, Personal representative of JOSEPH P. MARTINEC, Deceased v. WESLEY D. VANDER ARK, M.D., and ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.OS-1626 CIVIL TERM VERDICT Yes No If you answered Question I "No," Plaintiff can not recover on a theory of lack of informed consent and you should proceed to Question 3. If you answered Question 1 "Yes," you should proceed to Question 2. [In this case counsel have stipulated that the jury's verdict as to Dr. Vander Ark will also apply to his employer, ENT Facial Plastic Surgery Group, P.C. Therefore, the jury need not concern itself with making separate findings as to Defendant ENT Facial Plastic Surgery Group, P.C.] uestion 1: Do you find that Dr. Vander Ark failed to obtain informed consent from Joseph P. Martinec for the surgery? "'~ • ~ ' Ouestion 2: Do you find that the failure to receive the required information for informed consent was a substantial factor in Mr. Martinec's decision to undergo the surgery in this case? Yes No If you answered Question 2 "No," Plaintiff can not recover on a theory of lack of informed consent. Proceed to Question 3. Question 3: Do you find that the treatment provided by Dr. Vander Ark to Mr. Martinec fell below the applicable standard of medical care? In other words, was Dr. Vander Ark negligent? Yes No If you answer Question 3 "No," Plaintiff can not recover on a theory of negligence. If you answer Question 3 "Yes," proceed to Question 4. Question 4: Was Dr. Vander Ark's negligence a factual cause of any harm to Mr. Martinec? Yes No If you answer Question 4 "No," Plaintiff can not recover on a theory of negligence. IF BY YOUR PREVIOUS ANSWERS YOU HAVE FORECLOSED PLAINTIFF FROM RECOVERING ON EITHER THEORY, YOU SHOULD RETURN TO THE COURTROOM. HOWEVER, IF BY YOUR ANSWERS PLAINTIFF CAN RECOVER ON EITHER OR BOTH THEORIES, PROCEED TO QUESTION S. • ',` . ~. uestion 5: State the total amount of damages, if any, you find Plaintiff has proven were sustained by Mr. Martinec as a result of Dr. Vander Ark's wrongful conduct in the following categories: A. Economic Damages [Past Medical Expenses] $ B. Noneconomic Damages [physical pain, mental anguish, distress, discomfort, inconvenience, loss of the enjoyment of life, and disfigurement] 2~ ~ ( ate) ~ r~ JOSEPH P. MARTINEC -VS WESLEY D. VANDER ARK, M.D. AND PLASTIC SURGERY GROUP, P.C. UR In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2005-1626 CIVIL Judge: OLER nn // /~ Attorney: ~.,y-A r je 5 ~~ ~~~Q ~~ ~r°~Sif*C r Attorney: ~nC,~S ~- Y~1[~~s~c~f/ ~i'. Date: ~-~`~~,,,~- _ aD .~ DlU .--r ORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 1~-INIkHIII ~Iglll SEP20-11 Z 111gII~I~gNqqlqlNqlll SEP20-245 BISTLINE„ JR JOHN A 3 IIINg111~II~1~NI1B11 5EP20-23 BALES, LINDA S 4 IIIIIIgIgqNI1111111qq11 5EP2o-92 BONISE, MARYBETH A 6 Illlggl~qlllllll~ll SEP2o-158 GOLTZ, DIANE M 7 11111111111~gB111~Ig11N SEP2o-332 wiCKARD, PAUL A S IIIIgpIII111~IgIqNq111 SEP20-234 WENTZEL„ JR PAUL H 9 11 X 14 IIIIgINII111~N111N11111 5EP20-53 SMELTZ, LUKE E 15 IIIIq~I11g111111N1111111 SEP20-241 BUSKEY, MICHAEL J 17 IIIIIINIIIIIIIIfllllq~l 5EP2o-43 KIMBALL, JANICE B 18 IIIIIIIINg11gNqNIlMlq11 SEP20-288 O'BRIEN„ SR WILLIAM T IAlIgAl1111flg11qH1111 SEP20-48 MILLS 3 20 IIIIIIHIlgllq~llligll SEP20-1 WHITE, JACQUELINE K 21 IIIIIIIIIIIIII11~1111111111 SEP20-6 BOTCHIE, JOSEPH G 22 IIINg11~IIIIgI1111M111111 SEP2o-233 SCHORR, JERELDINE M t ~'~`~' JOSEPH P. MARTINEC ---- v s --- WESLEY D. VANDER ARK, M.D. AND PLASTIC SURGERY GROUP, P.C. JUR In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2005-1626 CIVIL Judge: OLER Attorney: Attorney: Date: ORS ~ No. Juror # NAMES OF JURORS CALLED CAUSE P D 23 INI~I~IN~IINIBIN SEP20-215 CLEGG, LORI L 24 IdNI11Nt~I~~1~1~NN SEP20-25 ALBURGER, THOMAS C 25 IANIII~IMMI®~~~ SEP20-151 HOLT, ROGER A 2~ 1111N~~~~IINNIMI SEP20-29 POWLEY, STAGY L 27 IIIIIU~II~I~~IrIghN SEP20-28 KRAMER, JILL A 28 IRIIM11~11~11N~~NNNN SEP20-68 CHBONISTER, SUSAN L 29 INNN~I~N~INlll~llllp SEP20-275 KUGLEB, CHERYL E 30 Ifl1111~II~111~11~II1Nll SEP20-304 STRICKLEB, DORIS J x 32 INNNII~NINI~IIUINII~MNp SEP2o-203 GULDEN, AMI M 33 Ia1~N~II~N~I~I~IN~NII SEP20-226 BOWMAN, GAY E 34 IlIN1111~~11~11NAlIIgNB SEP20-188 BROADS, DEBRA K 35 IARgII~N~~IN~II~NNII SEP20-117 SHUGHART, STEVEN L 36 37 ~ ~~ 38 39 40 41 42 43 44 GRACE M. MARTINEC, Personal representative of JOSEPH P. MARTINEC, Deceased, Plaintiff v WESLEY D. VANDER ARK, M.D.,: And ENT FACIAL PLASTIC SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1626 CIVIL TERM JURY TRIAL DEMANDED IN RE: MOTION IN LIMINE ORDER OF COURT AND NOW, this 17th day of September, 2010, upon consideration of Defendant's Motion in Limine To Preclude Plaintiff's Expert from Testifying at Trial, and following a hearing, the record on that issue is declared closed, and the matter is taken under advisement. Charles E. Wasilefski, Esquire 2931 North Front Street Harrisburg, PA 17110-1250 For Plaintiff Francis E. Marshall, Jr., Esquire Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011-3700 For Defendants :mae es 0,,? l LL // '? / to "tZril ww ? ? L .» rr7 j°^ ?.3 C. CD -- ] C7 ' y r; °a By the Court, a DICKIE, MCCAMEY & CHILCOTE, P.C. ATTORNEY FOR: DEFENDANTS BY: Francis E. Marshall, Jr., Esquire WESLEY D. VANDER ARK M.D., AND ENT ATTORNEY LD. N0.27594 FACIAL PLASTIC SURGERY GROUP, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) 71 731-4803 ax GRACE M. MARTINEC, IN THE COURT OF COMMON PLEAS PERSONAL REPRESENTATIVE OF OF CUMBERLAND COUNTY, JOSEPH P. MARTINEC, DECEASED PENNSYLVANIA Plaintiff, v. WESLEY D. VANDER ARK, M.D., AND ENT FACIAL PLASTIC SURGERY GROUP, P.C, Defendants. N0.2005-1626 CIVIL ACTION -MEDICAL JURY TRIAL DEMANDED PRAECIPE TO ENTER JUDGMENT IN FAVOR OF DEFENDANTS TO THE PROTHONOTARY: This case was tried to a jury in September of 2010. On September 23, 2010, a jury returned a verdict in favor of Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C. Pursuant to the jury's verdict, please enter judgment in favor of Defendants, Wesley D. Vander Ark, M.D. and ENT Facial Plastic Surgery Group, P.C., and against Plaintiff, Grace M. Martinec, personal representative of Joseph P. Martinec, deceased. No post-trial motions have been filed. ~a --~ ~; ~ Cdr ~,~ trt `»'~'~-~ ;~ ~ ~ ~-~ , ==~w ~ . ~ ~, ;~ ..~, w r_-a cx~ -=~; ~,~ ~? ~P Respectfully submitted, DICHIE, MCCAMEY & CHILCOTE, P.C. Date: October 5, 2010 By: •~ 'U Francis E. Marshall, Jr., E ire Supreme Court I. D. #27594 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 Tel: 717-731-4800 Attorney for Defendants, Wesley D. Vander Ark M.D., and ENT Facial Plastic Surgery Group, P. C. 2 CERTIFICATE OF SERVICE AND NOW, October 5, 2010, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.5. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: Charles E. Wasilefski, Esquire PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff, Joseph P. Martinec) Francis E. Marshall, Jr., Esquire