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HomeMy WebLinkAbout05-3875Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: n 5-- 3875' CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons upon the above-named Defendants at the following addresses: Thank you. Henry K. Smith, D.O. 1515 Bridge Street New Cumberland, PA 17070 Smith Radiology, Inc. 1515 Bridge Street New Cumberland, PA 17070 BY David J. Foster Esquire L D. # 23151 COSTOPOULOS, FOSTER & FIELDS 831 Market Street / P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 -Attorney for Plaintiff Dated: July -2g , 2005 Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants DOCKET NO.: oS -3V5' Attorney for Plaintiffs CIVIL ACTION - LAW JURY TRIAL DEMANDED WRIT OF SUMMONS TO THE ABOVE DEFENDANT(S): YOU ARE HEREBY NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAVE COMMENCED AN ACTION AGAINST YOU. Dated: July '9, 2005. (s/ c /C - ura Prothonotary Seal of the Court w ? (V ? Z7 H h.? N L.? THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/255-7231 Attorneys for Defendants IDA N. TONUI, V. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3875 HENRY K. SMITH, D.O., a/k/a HENRY K. SMITH, M.D. and SMITH RADIOLOGY, INC., Defendants MEDICAL MALPRACTICE JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorneys for Defendants in the above matter. THOMAS, THOMAS & HAFER, LLP DATE: Sa 8 r uilif ir% r.ut?L( BY at? hW W. Arosell, Esquire --" I.D.#58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendants 380862-1 CERTIFICATE OF SERVICE I, Sarah W. Arosell, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the b day of 2005: David J. Foster, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 THOMAS, THOMAS & HAFER, LLP By: . a ca t Sarah W. Arosell, Esquire 380862-1 c2 u? -? r_, ?? ? ? "? F r? =' ? W `'a<?, . ?, _ - ^- :'`? ??„ ?,, .._? ?> ?-L c? ,. u, Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants ORIGINAL Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A Notice of Intent to Serve Subpoenas with a copies of the subpoenas 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 subpoenas is attached to this Certificate, (3) No objections to the subpoenas has been received, and (4) The subpoenas which will be served is identical to the subpoenas which is attached to the Notice of Intent to Serve Subpoenas. Date: September 23, 2005 David J. Foster, squire Attorney for Plaintiff Ida N. Tonui Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Costopoulos, Foster & Fields intends to serve a subpoena identical to the one that is attached to this notice. 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 will be served. Date: September '2005 David J. Foster; quire Attorney for Plaintiff Ida N. Tonui Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE, DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Jeffrey Sedlack M.D., Sedlack Surgery, 220 Wilson Street, Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: I . Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/28/0 1 95 8, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam 999179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time during 1999 to 2002. 3. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to Plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4. All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning Plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), and/or treatment and/or the subject matter of this action. 6. Any and all writings of any kind pertaining to Plaintiff, and/or on which Plaintiff's name appears. 8. other party to this action. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME COURT ID#: 23151 ATTORNEY FOR: Plaintiff BY THE COURT: DATE: 111 7 d0057 Seal of the Court All your billing records pertaining to Plaintiff. All documents that mention or refer to Plaintiff, produced or provided to any 15 ri Prothono Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Masland Associates Inc Medical Arts Building 220 Wilson Street, Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/28/01958, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time during 1999 to 2002. 3. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to Plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4. All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning Plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), and/or treatment and/or the subject matter of this action. Any and all writings of any kind pertaining to Plaintiff, and/or on which Plaintiffs name appears. 7. All your billing records pertaining to Plaintiff. All documents that mention or refer to Plaintiff, produced or provided to any other party to this action. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME COURT ID#: 23151 ATTORNEY FOR: Plaintiff BY THE COURT: DATE: Seal of the Court A6??k 4e"'e? Prothonotary Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dunham U.S. Army Health Clinic 450 Gibner Road Suite #1 Carlisle Barracks, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/2 8/01 95 8, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time during 1999 to 2002. 3. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to Plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4. All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning Plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), and/or treatment and/or the subject matter of this action. Any and all writings of any kind pertaining to Plaintiff, and/or on which Plaintiff's name appears. 7. All your billing records pertaining to Plaintiff. 8. All documents that mention or refer to Plaintiff, produced or provided to any other party to this action. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME COURT ID#: 23151 ATTORNEY FOR: Plaintiff BY THE COURT: DATE: _ w LL ?OD? Seal of the Court G2G! Prothonotary Costopoulos, Foster & Fields By: David J. Foster, Esquire PA 1D No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 T O: Sadler Health Center Corp 100 North Hanover Street, Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/28/01958, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time during 1999 to 2002. 3. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to Plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4. All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning Plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), and/or treatment and/or the subject matter of this action. Any and all writings of any kind pertaining to Plaintiff, and/or on which Plaintiff's name appears. All your billing records pertaining to Plaintiff. 8. All documents that mention or refer to Plaintiff, produced or provided to any other party to this action. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME COURT ID#: 23151 ATTORNEY FOR: Plaintiff BY THE COURT: DATE: X05 Seal of the Court TYS; Prothono y Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Wallace Longton, 25 Sprint Drive, Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/28/01958, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time during 1999 to 2002. 3. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to Plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4. All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning Plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), and/or treatment and/or the subject matter of this action. 6. Any and all writings of any kind pertaining to Plaintiff, and/or on which Plaintiffs name appears. All your billing records pertaining to Plaintiff. 8. All documents that mention or refer to Plaintiff, produced or provided to any other party to this action. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME COURT ID#: 23151 ATTORNEY FOR: Plaintiff BY THE COURT: DATE: 7d05 Seal of the Court ?s Ca /? 111 Prothonotary Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: David P. Chernicoff, D.O., 5 Sprint Drive, Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/28/01958, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time during 1999 to 2002. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to Plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4. All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning Plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), and/or treatment and/or the subject matter of this action. 6. Any and all writings of any kind pertaining to Plaintiff, and/or on which Plaintiff's name appears. All your billing records pertaining to Plaintiff. All documents that mention or refer to Plaintiff, produced or provided to any other party to this action. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME COURT ID#: 23151 ATTORNEY FOR: Plaintiff BY THE COURT: DATE: ws Seal of the Court Prothonotary COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DA U -TON U= rS File No. d5-3815 HEM ()-I k sfi-1H, N?.h. PNj-? 51?4-TH 2t4?L?LOG`? ANC SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Ar NUT noTTo RADIOLOGY,- R50 WATNNT RnTTnM ROAD, (Name of Person or Entity) CARLISLE, PA 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: at 831 MARKET ST LEMOYNE PA 17Q43 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party snaking 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 parry 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: NAM[E:DAVID J. FOSTER, ESQUIRE ADDRESS: 811 MARKET STREET _ iFMOYNF PA 17043 TELEPHONE: 717-761-2121 SUPREME COURT ID # 7 I 1 51 ATTORNEY FOR: pr ATNTTFF , BY THE COURT: r? Pro notary, Civi Date: w y am - eC ea of the Court ep Ty' I . Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/2 8/01 95 8, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time during 1999 to 2002. 3. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to Plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4. All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning Plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), and/or treatment and/or the subject matter of this action. 6. Any and all writings of any kind pertaining to Plaintiff, and/or on which Plaintiff's name appears. 7. All your billing records pertaining to Plaintiff. 8. All documents that mention or refer to Plaintiff, produced or provided to any other party to this action. CERTIFICATE OF SERVICE 1, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this b day of September, 2005, a true and correct copy of the foregoing NOTICE OF INTENT TO SERVE SUBPOENA was served upon the following individual by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Henry K. Smith, D.O., alkla Henry K. Smith, M.D. 1515 Bridge Street New Cumberland, PA 17070 Smith Radiology, Inc. 1515 Bridge Street New Cumberland, PA 17070 By: COSTOPOULOS, FOSTER & FIELDS Jifiller CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 23`d day of September, 2005, a true and correct copy of the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS was served upon the following individual by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Sarah W. Arosell, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS ?Tifany M. M'Iler ?) r l ?J (-' "tl ? l1 T ?._. ? -? 511 ?.? _-? f: hI -:)l? v a i _ ?t '.,"j `:i , C..i ::i .. L?: :ll -- J { THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/255-7231 Attorneys for Defendants IDA N. TONUI, V. Plaintiff HENRY K. SMITH, D.O., a/k/a HENRY K. SMITH, M.D. and SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3875 MEDICAL MALPRACTICE JURY TRIAL DEMANDED RULE TO FILE A COMPLAINT TO: Plaintiff and Counsel You are hereby ruled to file a Complaint against Defendants within twenty (20) days of service of this Rule or a judgment of non pros will be entered against Plaintiff pursuant to Pa.R.C.P. 1037(a). DATE: e- Pq a 7 f 2605 I Proth notary -- 381813-1 THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/255-7231 Attorneys for Defendants IDA N. TONUI, V. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3875 HENRY K. SMITH, D.O., a/k/a HENRY K. SMITH, M.D. and SMITH RADIOLOGY, INC., Defendants MEDICAL MALPRACTICE JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule on Plaintiff to file a Complaint in the above case within twenty (20) days of service of said Rule, or suffer a judgment of non pros pursuant to Pa.R.C.P. 1037(a). THOMAS, THOMAS & HAFER, LLP DATE: Bv: Sarah 'W. Arosell, Esquire I.D.#58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendants 381813-1 CERTIFICATE OF SERVICE I, Sarah W. Arosell, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the g day of 2005: David J. Foster, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 THOMAS, THOMAS & HAFER, LLP By: LQ.?GI. LG2 arah W. Arosell, Esquire 381813-1 C7 v ?' G.f? N y? SHERIFF'S RETURN - REGULAR CASE NO: 2005-03875 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TONUI IDA N VS SMITH HENRY K DO ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SMITH HENRY K D.O. the DEFENDANT , at 0015:10 HOURS, on the 3rd day of August , 2005 at 1515 BRIDGE ST NEW CUMBERLAND, PA 17070 by handing to LESLIE KUPCHINSKY (MEDICAL RECEPTIONIST a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers- 18.00 13.60 .1I .00 10.00 R. Thomas Kline .00 41.60 08/04/2005 COSTOPOULOS, FOSTER & FIELDS Sworn and Subscribed to before me this _ day of aL'^'?-'? ?ooJ A.D. U Pro honotar By : ?3°? Deputy She f SHERIFF'S RETURN - REGULAR CASE NO: 2005-03875 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TONUI IDA N VS SMITH HENRY K DO ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS SMITH RADIOLOGY INC was served upon DEFENDANT the , at 0015:10 HOURS, on the 3rd day of August , 2005 at 1515 BRIDGE ST NEW CUMBERLAND, PA 17070 LESLIE KUPCHINSKY (MED by handing to RECEPTIONIST) a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 So Answers- 01 P .00 7 .00 10.00 R. Thomas Kline .00 16.00 08/04/2005 COSTOPOULOS, FOSTER & FIELDS Sworn and Subscribed to before me this day of A.D. Prothonotary By: Deputy Sh ff Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A Notice of Intent to Serve 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 was sought to be served, (2) A copy of the Notice of Intent, including the proposed subpoena is attached to this Certificate, (3) All objections to the subpoena have been waived as per the attached writing, and (4) The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to Serve Subpoena. Date: October 13, 2005 David J. Foste , squire Attorney for Plaintiff Ida N. Tonui THOMAS, THOMAS &HAFER LLP ATTORNEYS AT LAW www.ttwaw.com Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 Sarah W. Arosell (717) 255-7231 sarosell@tthlaw.com October 11, 2005 David J. Foster COSTOPOULOS, FOSTER & FIELDS 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 RE: Tonui v. Smith, D.O., et al. Cumberland County C.C.P. No. 05-3875 Dear Dave: We are in receipt of Plaintiffs Notice of Intent to Serve Subpoena on Jonas Michael Sheehan, M.D., Penn State Milton S. Hershey Medical Center in the above-captioned matter. Please be advised that we hereby waive any objection to the subpoena and request complete copies of any records or radiology studies received in response thereto. Very truly yours, THOM JT OMAS & JJHAFER, LLP L2lL ?L 'i A By: Sarah W. Arosell SWA/gmc Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610') 868-1675 • Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 + Phone: (412) 697-7403 • Fax: (412) 697-7407 Costoponlos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., AWA HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Costopoulos, Foster & Fields intends to serve a subpoena identical to the one that is attached to this notice. 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 will be served. Date: October 2005 David J. Fos , Esq ire Attorney for Plaintiff Ida N. Torun Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone. (717) 761-2121 IDA N. TONUI, Plaintiff N'S. HENRY K. SMITH, D.O., AWA HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO. Jonas Michael Sheehan M.D., Penn State Milton S. Hershey Medical Center, 500 Universi Drivel ershey, PA 17033 (Name of person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/28/01958, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961). 2. Any and all contracts and agreements that applied in any way to medical services provided by Defendants, in effect at any time on or about June 27, 2005. Any and all writings, including notes, memorandum, diaries, statements, reports, etc. made by defendants or their employees pertaining to plaintiff, and her treatment and/ or the subject matter of this action, except for privileged communications. 4_ All correspondence between the defendants and other physicians, health care providers and all other persons or entities concerning plaintiff, whether or not contained in her medical chart. 5. Any and all photographs, films or videotapes pertaining to Plaintiff(s), andlor treatment and/or the subject matter of this action. 6. Any and all writings of any kind pertaining to Plaintiff- and/or on which Plaintiffs name appears. T All your billing records pertaining to Plaintiff. 8. All documents that mention or refer to Plaintiff, produced or provided to any other party to this action. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME. COURT Ill4: 23151 ATTORNEY FOR Plaintiff BY THE ('OUR"I DATE: r U " D?-f Prothonotary Seal of the Court CCC)11 / CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 6" day of October, 2005, a true and correct copy of the foregoing NOTICE OF INTENT TO SERVE SUBPOENA was served upon the following individual by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Sarah W. Arosell, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. ray: COSTOPOULOS, FOSTER & FIELDS Tiffany M. iller CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 13 T' day of October, 2005, a true and correct copy of the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS was served upon the following individual by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Sarah W. Arosell, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS A, At ),6AA Tiffany M. Miller 10 r" Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiffs IDA N. TONUI, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. VS. DOCKET NO.: 05-3875 HENRY K. SMITH, D.O., A/K/A CIVIL ACTION - LAW HENRY K. SMITH, M.D., AND (MEDICAL MALPRACTICE) SMITH RADIOLOGY, INC., Defendants JURY TRIAL DEMANDED STIPULATION TO AMEND THE CAPTION AND NOW, comes the Plaintiffs, Ida N. Tonui, by and through her counsel, David J. Foster, Esquire, and the Defendants, Henry K. Smith, D.O., a/k/a Henry K. Smith, M.D., and Smith Radiology, by and through their counsel, Sarah W. Arosell, Esquire, and hereby stipulate and agree as follows: 1. Counsel entering into this Stipulation on behalf of their respective clients represent that they are authorized to do so. 2. This case was commenced by the Plaintiff on or about July 29, 2005 by Writ of Summons. 3. On or about August 12, 2005, Plaintiff, Ida N. Tonui, died. 4. On or about October 2, 2005, the Cumberland County Register of Wills granted Letters of Administration to Phillip D. New, as the Executor of the Estate of Ida N. Tonui, deceased (see attached copy of Short Certificate marked "Exhibit A"). 1 5. Counsel for the parties stipulate and agree to substitute the Estate of Ida N. Tonui PHILLIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED Respectfully submitted, and amend the caption of this matter as follows: DAVID J. FOSTER, ESQUIRE DATE: D o2/ 05 BY: Attorney for P ' tiff SARAH W. AROSELL, ESQUIRE J? DATE: /? 9 0 BY: ? Attorney for Defendants Henry K. Smith, D.O., et al. STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICATE I, GLENDA FARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby certify that on the 3rd day of October, Two Thousand and Five, Letters TESTAMENTARY in common form were granted by the Register of said County, on the estate of IDA NOBANTU TONUI late of CARLISLEBOROUGH /First, Middle, L-) in said county, deceased, to PHILIPD NEW (First, Middle, L-0 and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 3rd day of October Two Thousand and Five. File No. PA File No. Date of Death S.S. # NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL 2005- 00875 21- 05- 0875 8112/2005 193-78-0472 EXHIBIT w a S \ L i ?(J Deputy OCT 2 6 2005 ?,l 1 IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED ORDER AND NOW, this Z 7' day of Gbh a/ , 2002, upon consideration of a Stipulation of Counsel, it is HEREBY ORDERED AND DECREED that the above-captioned matter shall be amended as follows: PHILLIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED BY THE COURT: J. r ? ? ? ' ? _? ORIGINAL IDA N. TONUI, V. Plaintiff HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCUMENT NO.: 05-3875 CIVIL ACTION - LAW JURY TRIAL DEMAND ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendants, Henry K. Smith, D.O. and Smith Radiology, Inc., in the above-captioned. Respectfully submitted, McKissock & Hoffman, P.C. I.D. o . 36818 L M. Burnette, Esquire 1.15. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: a Z 1 3 Os Attorneys for Defendants, Henry K. Smith, D.U. and Smith Radiology, Inc. Y CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 23151 Lemoyne, PA 17043-0222 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: B. Cr i Black, Esquire I.D. : 36818 Lauren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: 12-13 Attorneys for Defendants, Henry K. Smith, D.O. and Smith Radiology, Inc. ,._> = ; ',,? , ORIGINAL THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/255-7231 Attorneys for Defendants IDA N. TONUI, V. Plaintiff HENRY K. SMITH, D.O., a/k/a HENRY K. SMITH, M.D. and SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3875 MEDICAL MALPRACTICE JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of the undersigned as attorneys for Defendants in the above matter. DATE: /Z1z1o 5` THOMAS, THOMAS & HAFER, LLP Sar h W. Arosell, Esquire I.D.#58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendants 380862-2 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Withdrawal of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 23151 Lemoyne, PA 17043-0222 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: I. D. 6818 La po: Burnette, Esquire I.D. 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: 2 Attorneys for Defendants, Henry K. Smith, D.O. and Smith Radiology, Inc. ,.? ?. i:i -i ?_ Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A Notice of Intent to Serve 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 was sought to be served, (2) A copy of the Notice of Intent, including the proposed subpoena is attached to this Certificate, (3) All objections to the subpoena have been waived as per the attached writing, and (4) The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to Serve Subpoena. , 2006 Y -f Date: January 4 David J. Foster,Tsquire Attorney for Plaintiff Ida N. Tonui MCKISSOCK & HOFFMAT4 A PROFESSIONAL CORPORATION B. CRAIG BLACK 0.re Di.] 717/ 540-34W Ex, 25 011 k@.kl f.,' David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 23 i 51 Lemoyne, PA 17043-0222 Re: Dear David: CCP: Cumberland Cc Docket No.: 05-3875 Our File No.: 241-518 ATTORNEYS AT LAW 2040 LINGLESTOWN ROAD SU TE 302 HARRISBURG, PA 17110 PHONE: (717) 540-3400 PAX: (717) 540-3434 W W W.MCKHOFCOM December 29, 2005 17W MARKET STREET SU[ 3W0 PHILADLEPHIA, PA 19103 (215) 2462 IW FAX (215) 2462144 16 NORTH FRANKLIN STREET SUITE 300 DOYLESTOWN, PA 10901 (215) 345-4501 PAX: 215) 345-4503 25 CHESTNUT STREET SUITF 108 HADDONFTELD, NJ 09133 (856) 4237200 PAX: (056) 4230099 105 E. EV ANS STREET, SUITE D 4 O. BOX 3086 WPSTCHESTERPA 19301 (610)738-8850 FAX: (610) 739-9121 I am in receipt of your letter dated December 22, 2005, to which was appended a copy of a Notice of Intent to Serve Subpoena to the Fredericksen Outpatient Center. Given the time constraints associated with the Rule to File a Complaint and the agreement which you entered with Ms. Arosell, I have no objection to your issuance of the subpoena as presented. Please move forward with obtaining these records and forward to me copies of any records received, including any mammography films which may be produced pursuant to your subpoena. Very truly yours, jssBg;B ac k, Esquock 8, Hoffman, P.C. BCB/mjh Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 9 Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K1A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Costopoulos, Foster & Fields intends to serve a subpoena identical to the one that is attached to this notice. 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 will be served. Date: December 2005 David J. Foster, Esquire Attorney for Plaintiff Ida N. Tonui Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiffs IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENT'S OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Fredrickson Outpatient Center, 2015 Technology Parkway. Mechanicsburg, PA 17050 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Please provide the originals and copies of any and all medical records, medical reports, x-rays, mammograms, and/or any and all radiological studies, including originals and those that are stored electronically or digitally, and any other documents containing any information relating to Ida N. Tonui, Date of Birth: 07/2 8/0 1 95 8, Social Security No.: 193-78- 0472, including, but not limited to, x-rays, reports, and/or mammograms, originals or otherwise, including digitally or electronically stored copies taken of the Plaintiff Ida N. Tonui on or about October 1, 1999 at 1300 hours (exam #99179961, by Smith Radiology). You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: David J. Foster, Esquire ADDRESS: P.O. Box 222, Lemoyne, PA 17043 TELEPHONE: (717) 761-2121 SUPREME COURT ID#: 23151 ATTORNEY FOR: Plaintiff BY THE COURT: DATE: Prothonotary Seal of the Court CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 22nd day of December, 2005, a true and correct copy of the foregoing NOTICE OF INTENT TO SERVE SUBPOENA was served upon the following individual by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): B. Craig Black, Esquire MCKISSOCK & HOFFMAN 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS Tiffany M. Miller CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this day of January, 2006, a true and correct copy of the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA was served upon the following individual by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): B. Craig Black, Esquire MCKISSOCK & HOFFMAN 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS Tiffany M. Miller •a ?% ?'_? -n .a ?? ? -r1 l;i=_ t U? .. 1 ^-J ._ r Costopoulos, Foster & Fields By: David J. Foster, Esquire J.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiff PHILIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW (MEDICAL MALPRACTICE) 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. PENNSYLVANIA LAWYER REFERRAL SERVICE P.O. Box 186 Harrisburg, PA 17108 (800) 692-7375 Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 PHILIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI Plaintiff Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICIA Le ban demando a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o per abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y per cualquier queja o alivo que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. PENNSYLVANIA LAWYER REFERRAL SERVICE P.O. Box 186 Harrisburg, PA 17108 (800) 692-7375 PHILIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Philip D. New, by and through his attorney, David J. Foster, Esquire, and respectfully represents as follows in support of this Complaint: Parties Plaintiff, Philip D. New, is an adult individual residing in Cumberland County, Pennsylvania, and was duly appointed the Executor of the Estate of Ida N. Tonui, Plaintiff's decedent, on October 2, 2005 by the Cumberland County Register of Wills. 2. At all times relevant herein, Defendant, Henry K. Smith, D.O., a/k/a Henry K. Smith, M.D. (hereinafter referred to as "Smith") was a licensed professional physician with his main office at 1515 Bridge Street, New Cumberland, Cumberland County, Pennsylvania. Plaintiff is asserting a professional liability claim against this Defendant. 3. At all times relevant herein, Defendant Smith Radiology, Inc. (hereinafter referred to as "Smith Radiology", was a corporate medical practice with its main office and facilities located at 1515 Bridge Street, New Cumberland, Cumberland County, Pennsylvania. Plaintiff is asserting a professional liability claim against this Defendant. 4. At all times relevant herein, Defendant Smith, was an agent, apparent agent, servant, and/or employee of Defendant Smith Radiology, and was acting in the scope of said agency/employ when providing services to Plaintiff s decedent. General Allegations On October 1, 1999, Plaintiffs decedent, Ida N. Tonui (hereinafter referred to as "Tonui") had a screening baseline mammogram performed at the Dunham U.S. Army Health Clinic in Carlisle, Pennsylvania. 6. Pursuant to contract, that mammogram was delivered to Defendant Smith at his offices at Smith Radiology for his professional interpretation. In his report of October 5, 1999, Defendant Smith reported that "No evidence of any speculated breast lesions are seen," characterizing his impression of the mammogram as a "Negative baseline mammogram," and a listed Result Code of "NORMAL." 8. However, unknown to Tonui and her treating physicians, Defendant Smith failed to identify numerous pleomorphic calcifications in the left upper quadrant of various shapes and sizes, which should have been viewed with a high degree of suspicion. 9. In addition, Defendant Smith failed to identify a subtle increase in the density in the left upper outer quadrant when compared to the right. 10. Defendant Smith failed to identify and report these findings and failed to order additional compression spot views and magnification views. 11. In fact, the mammogram of October 1999, revealed the early stages of cancer of Tonui's left breast; and, had Defendant Smith correctly read the mammogram at that time, Tonui would have received proper and timely treatment and would have been cured of the breast cancer. -2- 12. Tonui and her physicians relied on the negative findings of Defendant Smith and no treatment was ordered or rendered; thereafter, in July 2003 additional mammogram studies were conducted which revealed abnormalities in her left breast leading to additional testing establishing a diagnosis of August 2003 ofpT2N3aMx;AJCC Stage IIIC infiltrating ductal carcinoma of the left breast. The tumor at the time of diagnosis in 2003 measured 3cm in greatest diameter and it already spread to 17 axillary lymph nodes. 13. Thereafter, Tonui was treated by partial mastectomy and axillary node dissection followed by radiation therapy and chemotherapy. Unfortunately, Tonui succumbed to her disease on August 12, 2005. 14. Defendants Smith and Smith Radiology are jointly and severally liable to Plaintiff for the damages as set forth hereinafter. 15. As a direct and proximate result ofthe Defendants' negligence and reckless disregard for Plaintiff decedent's welfare, Tonui's condition and cancer went undetected for a period of approximately 3 years and 9 months, causing the cancer to develop and spread and ultimately cause her death on August 12, 2005. 16. As a direct and proximate result of the Defendants' negligence and reckless disregard for Plaintiff decedent's welfare, Tonui was compelled to submit to various medical treatments and procedures and claim is made therefore. 17. As a direct and proximate result of the Defendants' negligence and reckless disregard for Plaintiff decedent's welfare, Tonui suffered severe emotional damage due to the advanced stage of her cancer and the realization of her impending death and claim is made therefore. 18. As a direct and proximate result of the Defendants' negligence and reckless disregard -3- for Plaintiff decedent's welfare, Tonui was forced to incur liability for medical treatments, medicine, hospitalization, and similar miscellaneous expenses in an effort to treat her cancer and claim is made therefore. 19. As a direct and proximate result of the Defendants' negligence and reckless disregard for Plaintiff decedent's welfare, Tonui underwent great physical and mental pain and suffering, great in carrying out her daily activities, and loss of life's pleasures and enjoyment, prior to her death and claim is made therefore. 20. As a direct and proximate result of the Defendants' negligence and reckless disregard for Plaintiff's decedent's welfare, Tonui was subject to great humiliation, embarrassment, and disfigurement, until her death, and claim is made therefore. 21. As a direct and proximate result ofthe Defendants' negligence and reckless disregard for Plaintiff's decedent's welfare, Tonui sustained a loss of earnings and earning capacity from the date of her injury until her death, and claim is made therefore. 22. As a direct and proximate result of the Defendants' negligence and reckless disregard for Plaintiff decedent's welfare, the Estate of Ida N. Tonui has suffered the loss of decedent's future earnings capacity less the amount of her personal maintenance from the date of her death through her estimated working life span, and claim is made therefore. 23. As a direct and proximate result of the Defendants' negligence and reckless disregard for Plaintiff's decedent's welfare, the Estate of Ida N. Tonui has suffered the loss of decedent's retirement and Social Security income, and claim is made therefore. -4- Count I: Negligence - Survival Action Plaintiff v. Defendant Henry K. Smith 24. The averments set forth in paragraphs 1 through 23 are incorporated herein by reference. 25. The Plaintiff, Phillip D. New, brings a civil action pursuant to the Pennsylvania Survival Act at 42 Pa.C.S. 8302, et seq., in his capacity as the Executor and personal representative of the Estate of Ida N. Tonui, decedent. 26. This civil action is brought to recover on behalf of the Estate of Ida N. Tonui, decedent, all damages legally recoverable under the Pennsylvania Survival Act. 27. As a direct and proximate result of the negligent care and/or reckless acts of the Defendants, Plaintiff's decedent, Ida N. Tonui, died on or about August 12, 2005. 28. In reviewing the October 1999 mammogram of Plaintiff's decedent, Ida N. Tonui, Defendant Smith was required to exercise a reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances. 29. Defendant Smith, in reviewing the October 1999 mammogram of the decedent, Ida N. Tonui, failed to exercise the reasonable and ordinary, care, skill, and ability exercised by other members of his profession in that he: a) incorrectly interpreted Plaintiff s decedent's mammogram and concluded the mammogram was normal when in fact it displayed evidence of cancer; b) failed to properly read, interpret, and report the findings with respect to the mammogram; C) failed to diagnose Plaintiff's decedent's breast cancer; -5- d) failed to observed, identify, and report the presence of numerous pleomorphic calcifications in the left upper quadrant; e) failed to observe, identify, and report the presence of a subtle increase in the density in the left upper outer quadrant when compared to the right; f) failed to order additional studies, including but not limited to additional spot views and magnification views; g) failed to order or to recommend or take steps leading to a biopsy which would have resulted in the diagnosis of Plaintiff s decedent's cancer in 1999; h) failed to refer Plaintiffs decedent to the necessary specialists in radiology, surgery, and oncology who would have undertaken the correct evaluation of the mammogram and procedures to render the correct diagnosis of cancer in a timely fashion. 30. The negligence, carelessness and/or recklessness of Defendant Smith was a substantial factor in increasing the risk of harm and causing the death of Plaintiffs decedent, Tonui, as described in detail in this Complaint, which averments are incorporated herein by reference. 31. As a direct and proximate result of the negligent, careless, and/or reckless care of Plaintiffs decedent, Ida N. Tonui, and the negligent, careless, and/or reckless reading of Tonui's mammogram by Defendant Smith as described in detail above, Plaintiffs decedent was caused a substantial delay in the detection of her breast cancer and the subsequent treatment for it, which delay in turn caused the cancer to metastasize or spread significantly, thereby increasing the risk of harm and causing her death. 32. As a direct and proximate result of the negligent, careless, and/or reckless care of -6- Plaintiff's decedent, Ida N. Tonui, and the negligent, careless, and/or reckless reading of her mammogram by the Defendant Smith, as described in detail above, Plaintiff's decedent did not undergo immediate treatment for the cancer in 1999 and 2000 when it remained highly treatable, thereby increasing the risk of harm and causing her death. 33. The aforesaid conduct of Defendant Smith, was outrageous, wanton, and/or recklessly indifferent to the rights of other so as to justify the award of punitive damages against the Defendant. WHEREFORE, Plaintiff, Phillip D. New, on behalf of the Estate of Ida N. Tonui, decedent, hereby demands judgment against the Defendant in an amount in excess of the compulsory arbitration limits plus interests and costs as provided by law. Count II: NeOhmnee - Wrongful Death Plaintiff v. Defendant Henry K. Smith 34. The averments set forth in paragraphs 1 through 33 are incorporated herein by reference. 35. This action is brought pursuant Pennsylvania Wrongful Death Act at 42 Pa.C.S. 8301, et seq., andPa.R.C.P. 22(a)(1), et seq. 36. Plaintiff's decedent, IdaN. Tonui, is survived bythe following statutory beneficiaries who are legally entitled to recover damages for her death: Son, Joseph Kipchumba, D.O.B.: 09/13/96, 1512 Berryhill Street, Harrisburg, Pennsylvania 17104; Daughter, Marjorie Vuyiswa, D.O.B: 05/07/76, 7817 Anita Drive, Philadelphia, Pennsylvania 19111. 37. This civil action is brought to recover, on behalf of the aforesaid statutory beneficiaries, all damages legally available under the Pennsylvania Wrongful Death Act. -7- 38. As a direct and proximate result of the negligent, careless, and/or reckless actions of the Defendant, which caused the death of Plaintiff s decedent, Ida N. Tonui, the aforesaid statutory beneficiaries have incurred hospital, nursing, and medical bills, funeral expenses, and the cost of the administration of the Estate. 39. As a further direct and proximate result of the negligent, careless, and/or reckless actions of the Defendant, which caused the death of the Plaintiff's decedent, Ida N. Tonui, the aforesaid statutory beneficiaries have suffered the loss of monetary support, including probable earnings and contribution, that she would have provided them during her lifetime. 40. As a further direct and proximate result of the negligent, careless, and/or reckless actions of the Defendant, which caused the death of the Plaintiff s decedent, Ida N. Tonui, the aforesaid statutory beneficiaries have suffered the loss of a pecuniary value of the services, society, comfort, companionship, guidance, mother's care, training, advice, and education that she would have provided them during her lifetime. WHEREFORE, Plaintiff, Phillip D. New, on behalf of the aforesaid statutory beneficiaries hereby demands judgment against the Defendant, in an amount in excess of the compulsory arbitration limits plus interests and costs as provided by law. Count III - Vicarious Liability Wrongful Death and Survival Actions Plaintiff v. Defendant Smith Radiology 41. The averments set forth in paragraphs 1 through 40 are incorporated herein by reference. 42. At all relevant times herein, the actual or ostensible agents, servants, or employees of Defendant Smith Radiology, including but not limited to Defendant Smith, were acting within the -8- scope of their employment or agency with Defendant Smith Radiology, in rendering negligent, careless and/or reckless care to Plaintiffs decedent, Ida N. Tonui, and, more specifically, in negligently, carelessly and/or recklessly analyzing and interpreting her 1999 mammogram as alleged above. 43. Defendant Smith Radiology is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants, or employees, including but not limited to Defendant Smith, who negligently, carelessly and/or recklessly rendered medical care to Plaintiff s decedent, Ida N. Tonui, as set forth above, which averments are incorporated herein by reference. 44. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants, or employees of Defendant Smith Radiology, including but not limited to Defendant Smith, which is imputed to Defendant Smith Radiology, was a substantial factor in increasing the risk of harm and causing the death of Plaintiff s decedent, Ida N. Tonui, as alleged more fully above, which averments are incorporated herein by reference. 45. As a direct and proximate result of the aforesaid negligence, carelessness, and/or recklessness imputed to Defendant Smith Radiology, Plaintiff s decedent, IdaN. Tonui, was caused a substantial delay in the detection of her malignant cancer and the subsequent treatment for it, which delay in turn caused the cancer to metastasize or spread significantly, thereby increasing the risk of harm and causing her death as alleged more fully above, which averments are incorporated herein by reference. 46. As a further direct and proximate result of the aforesaid negligence, carelessness and/or recklessness imputed to Defendant Smith Radiology, Plaintiffs decedent, Ida N. Tonui, did -9- not undergo immediate treatment for the breast cancer in 1999 and 2000 when it remained highly treatable, thereby increasing the risk of harm and causing her death as alleged more fully above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Phillip D. New, on behalf of the Estate of Ida N. Tonui, decedent, hereby demands judgment against Defendant Smith Radiology, in an amount in excess of the compulsory arbitration limits plus interests and costs as provided by law. Respectfully submitted, David J. Foster, F?squire I.D. No.: 23151 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 -Attorney.for Plaintiff Date: March 30 '2006 -10- VERIFICATION Phillip D. New, as Executor of the Estate of Ida N. Tonui v. Henry K. Smith, DO., a1Wa Henry K. Smith, M.D., and Smith Radiology, Inc. I, Philip D. New, Executor of the Estate of Ida N. Tonui, hereby verify that the facts set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Philip D. New Dated: ? 30? 0? CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 30T' day of March, 2006, a true and correct copy of the foregoing COMPLAINT was served upon the following individual by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): B. Craig Black, Esquire MCKISSOCK & HOFFMAN 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS Tiffany M. Miller ^} -l ? __Y 'Z- -it ?-C? ",? • ?:1 :? C? Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiff PHILLIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI Plaintiff HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants DOCKET NO.: 05-3875 VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT HENRY K. SMITH. D.O. a/k/a HENRY K. SMITH. M.D. I, David J. Foster, Esquire, certify that: [11 an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR Ir M [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: David J. Foster, Esquire I.D. No.: 23151 Costopoulos, Foster & Fields 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiff Ior CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 31" day of March, 2006, a true and correct copy of the foregoing CERTIFICATE OF MERIT was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): B. Craig Black, Esquire MCKISSOCK & HOFFMAN 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS 121 o r?I ktij AA. Tiffany M. Idler 1 _ l ___ n; CCi Costopoulos, Foster & Fields By: David I Foster, Esquire I.D. No.: 23151 831 Market -02Box 222 ORIGINAL Lemoyne, PA 1 170437043-0222 Phone: (717) 761-2121 Attorney for Plaintiff PHILLIP D. NEW, as Executor of the IN THE COURT OF COMMON PLEAS ESTATE OF IDA N. TONUI CUMBERLAND COUNTY, PENNA. Plaintiff DOCKET NO.: 05-3875 VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT SMITH RADIOLOGY. INC. I, David J. Foster, Esquire, certify that: [ ] an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR M the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: 3 C (, _ l- David J. Foster;, Esquire I.D. No.: 23151 Costopoulos, Foster & Fields 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 -Attorney for Plaintiff CERTIFICATE OF SERVICE 1, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 3151 day of March, 2006, a true and correct copy of the foregoing CERTIFICATE OF MERIT was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): B. Craig Black, Esquire MCKISSOCK & HOFFMAN 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Attorney for Defendants Henry K. Smith, D. 0., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS A k Tiffany M. Miler CO PHILLIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCUMENT NO.: 05-3875 V. CIVIL ACTION - LAW HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., JURY TRIAL DEMANDED Defendants STIPULATION AMENDING COMPLAINT AND NOW, TO WIT this day of 4 6 L__, 2006, comes the parties to the above-captioned matter: Philip D. New, as Administrator of the Estate of Ida N. Tonui, Deceased, by and through his attorney, David J. Foster, Esquire; and Henry K. Smith, D.O. a/k/a Henry K. Smith, M.D. and Smith Radiology, Inc., by and through their attorney, B. Craig Black, Esquire, and stipulate as follows: The parties hereto, by and on behalf of their respective clients, hereby agree and stipulate that paragraphs 17, 20 and 23 of the Complaint are hereby stricken. The parties agree that despite these paragraphs being stricken from the Complaint, Plaintiff reserves the right at the time of trial to claim and present damages of all legally recoverable damages, and the elimination of these paragraphs from the Complaint shall not limit Plaintiff from the recovery of recognizable damages in claims arising under the Wrongful Death Act (42 Pa. C.S.A. §8301) and the Survival Act 42 Pa. C.S.A. §8302); 2. The parties hereto agree that Plaintiff's claim for punitive damages as asserted in paragraph 33 of the Complaint is withdrawn without prejudice to Plaintiff to seek to amend the Complaint at the conclusion of discovery if facts are developed which, in the Court's judgment justify submission of the punitive damage issue to the jury. 3. Defendants shall have a period of thirty (30) days from the entry of the proposed Court Order approving this Stipulation to file their Answer and New Matter to Plaintiff's Complaint 4. Counsel hereby acknowledge that they have reviewed the contents of this Stipulation with their respective clients and are authorized by their clients to enter into this agreement thereby effectuating same. WHEREFORE, the parties hereto pray this Honorable Court to enter an Order in the form attached. Respectfully submitted, Date: f - < i" David J. Foster, Esquire Counsel for Philip D. New, Executor of the Estate of Ida N. Tonui, Deceased Date: 3?I20104 B6, Cr,Qi? Black, Esquire n /for Henry It. Smith, D. 0. a/k/a Henry K. Smith, M.D. and Smith Radiology, Inc. APR 2 8 2006 b. PHILLIP D. NEW, as Executor of the IN THE COURT OF COMMON PLEAS ESTATE OF IDA N. TONUI, CUMBERLAND COUNTY, PENNA. Plaintiff DOCUMENT NO.: 05-3875 V. CIVIL ACTION - LAW HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., JURY TRIAL DEMANDED Defendants ORDER AND NOW, this 28` day of April, 2006, upon consideration for the attached Stipulation, and noting the agreement of the parties with the terms thereof, it is hereby ORDERED: Paragraphs 17, 20 and 23 of the Complaint are hereby stricken. Despite these paragraphs being stricken from the Complaint, Plaintiff reserves the right at the time of trial to claim and present damages of all legally recoverable damages, and the elimination of these paragraphs from the Complaint shall not limit Plaintiff from the recovery of recoverable damages in claims arising under the Wrongful Death Act (42 Pa. C.S.A. §8301) and the Survival Act 42 Pa. C.S.A. §8302); 2. Plaintiff's claim for punitive damages as asserted in paragraph 33 of the Complaint is withdrawn without prejudice to Plaintiff to seek to amend the Complaint at the conclusion of discovery if facts are developed which, in the Court's judgment justify submission of the punitive damage issue to the jury. 3. Defendants shall have a period of thirty (30) days from the entry of the this Order to file their Answer and New Matter to Plaintiff's Complaint 0,?0 By the Court, ???H r ?ICAI',:?r? l.? 'Is :g t,!TJ 1 A soot ] f ' ' Hi 1-10 PHILIP D. NEW, as Exeutor of the ESTATE OF IDA N. TONUI, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCUMENT NO.: 05-3875 V. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE TO PLEAD To: Philip D. New c/o David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street; P.O. Box 222 Lemoyne, PA 17043-0222 You are hereby notified to file a written response to the New Matter pursuant to Pa.R.C.P. 1030 within 20 days from service hereof. AND NOW, this ? day of M OUCA 2006, comes Defendants, Henry K. Smith, D.O. a/k/a Henry K. Smith, M. d Smith Radiology, Inc., by and through their attorneys, McKissock & Hoffman, P.C., and files the following Answer and New Matter to Plaintiff's Complaint wherein the following is a statement: 1. Denied. After reasonable investigation, Answer Defendants are of insufficient knowledge and information to form a belief as to the averments in Ti of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the matter. 2. Admitted in part, denied in part. It is admitted that Henry K. Smith, M.D. is a licensed physician maintaining an office for the practice of medicine at 1515 Bridge Street, New Cumberland, Cumberland County, Pennsylvania. It is denied that Henry K. Smith, M.D. was ever known as Henry K. Smith, D.O. The remaining averments in ¶2 of Plaintiff's Complaint are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 3. Admitted in part, denied in part. It is admitted that Smith Radiology is a Pennsylvania Corporation with its office located at 1515 Bridge Street, New Cumberland, Cumberland County, Pennsylvania. The remaining averments in T of Plaintiff's Complaint are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the averments in ¶3 of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the matter. 4. Denied. It is admitted only that on or about October 1 through 5, 1999 Henry K. Smith, M.D. was an employee of Smith Radiology, Inc. The remaining averments in ¶4 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. 5. Denied. After reasonable investigation, Answer Defendants are of insufficient knowledge and information to form a belief as to the averments in ¶5 of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the matter. 6. Denied. After reasonable investigation, Answer Defendants are of insufficient knowledge and information to form a belief as to the averments in 16 of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the matter. 7. Denied as stated. The averments in ¶7 are denied. The interpretation dated October 5, 1999 by Henry K. Smith, M.D. is set forth in writing and the characterization of same as set forth in ¶7 of Plaintiff's Complaint is specifically denied. 8-11. Denied. The averments in ¶¶s 8 through 11 of Plaintiff's Complaint are denied in accordance with Pa.R.C.P. 1029(e). By way of further answer, it is specifically denied that Defendant in any way deviated or failed to appreciate any significant findings with respect to the baseline mammographic examination completed of Plaintiff's decedent dated October 1, 1999. 12. Denied. After reasonable investigation, Answer Defendants are of insufficient knowledge and information to form a belief as to the averments in ¶12 of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the matter. 13. Denied. After reasonable investigation, Answer Defendants are of insufficient knowledge and information to form a belief as to the averments in ¶13 of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the matter. 14. Denied. The averments in ¶14 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute a conclusion of law, same are denied. 15. Denied. The averments in 115 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleadings is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 16. The averments in T16 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleadings is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 17. Paragraph 17 has been stricken by agreement of the parties pursuant to Stipulation and Order of the Court dated April 28, 2006. 18. The averments in 118 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleadings is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 19. The averments in 119 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleadings is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 20. Paragraph 20 has been stricken by agreement of the parties pursuant to Stipulation and Order of the Court dated April 28, 2006. 21. The averments in 121 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleadings is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 22. The averments in ¶22 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleadings is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 23. Paragraph 23 has been stricken by agreement of the parties pursuant to Stipulation and Order of the Court dated April 28, 2006. COUNT I: Negligence - Survival Action Plaintiff v. Defendant Henry K. Smith 24. The averments set forth in paragraphs 1 through 23 of the foregoing Answer are incorporated herein by reference. 25. The averment in 125 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averment is factually specific and does not constitute a conclusion of law, same is denied. 26. The averment in ¶26 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averment is factually specific and does not constitute a conclusion of law, same is denied. 27. The averment in 127 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averment is factually specific and does not constitute a conclusion of law, same is denied. 28. The averments in ¶28 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. To the extent that the averments in ¶28 of Plaintiff's Complaint infer or allege that Defendant, Henry K. Smith, M.D. failed to exercise reasonable and ordinary care, skill, and ability, said averments are specifically denied. The averments contained in ¶¶s 8 through 11 of the foregoing Answer are incorporated by reference herein. 29. The averments in 129 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute conclusions of law, same are denied in accordance with Pa.R.C.P. 1029(e). By way of further answer, it is specifically denied that Defendant Smith failed to exercise reasonable and ordinary care, skill and ability in any of the manners as set forth in subparagraphs (a) through (h) of ¶29 of Plaintiff's Complaint. To the contrary, at all times Defendant Henry K. Smith, M.D., exercised reasonable and ordinary care, skill and ability in accordance with his professional obligations and duties to the Plaintiff and Plaintiff's decedent. 30-32. The averments in ¶¶s 30 through 32 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute a conclusion of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. 33. Paragraph 33 has been stricken from the Complaint pursuant to the Stipulation of the parties and the Order dated April 28, 2006. WHEREFORE, Defendants, Henry K. Smith, D.O. a/k/a Henry K. Smith, M.D. and Smith Radiology, Inc., respectfully request that this Honorable Court enter judgment in their favor and dismiss Plaintiff's Complaint with prejudice. COUNT II: Nealiaence - Wronaful Death Plaintiff v. Defendant Henry K. Smith 34. The averments set forth in paragraphs 1 through 33 of the foregoing Answer are incorporated herein by reference as if more fully set forth at length. 35. The averments in 135 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. 36. Denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of the averments set forth in ¶36 of Plaintiff's Complaint. 37-40. The averments in ¶¶s 37 through 40 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of the averments set forth in ¶¶s 37 through 40 of Plaintiff's Complaint. WHEREFORE, Defendants, Henry K. Smith, D.O. a/k/a Henry K. Smith, M.D. and Smith Radiology, Inc., respectfully request that this Honorable Court enter judgment in their favor and dismiss Plaintiff's Complaint with prejudice. COUNT III: Vicarious Liability Wrongful Death and Survival Actions Plaintiff v. Defendant Smith Radiology 41. The averments set forth in paragraphs 1 through 40 of the foregoing Answer are incorporated by reference as if more fully set forth at herein. 42. The averments set forth in 142 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, it is specifically denied that Smith Radiology, Inc. or any employees, agents, ostensible agents, or servants of Smith Radiology, Inc. were in any way negligent, careless or reckless in the analysis and/or interpretation the 1999 baseline mammographic film as alleged in Plaintiff's Complaint. 43. The averments in ¶43 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute conclusions of law and are factually specific, same are denied. Answering Defendant hereby incorporates the averments in 142 of the foregoing Answer as if more fully set forth herein. 44-46. The averments set forth in ¶Js 44 through 46 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. Paragraph 42 of the foregoing Answer is specifically incorporated herein by reference. After reasonable investigation, Answer Defendant has insufficient knowledge and information to form a belief as to the truth of the averments set forth in ¶¶s 44 through 46 of Plaintiff's Complaint. WHEREFORE, Defendant, Smith Radiology, Inc., respectfully requests that this Honorable Court enter judgment in its favor and dismiss Plaintiff's Complaint with prejudice. NEW MATTER 47. The averments set forth in paragraphs 1 through 46 of the foregoing Answer are incorporated by reference as if more fully set forth at herein. 48. The recovery of medical expenses paid by any third-party, including any insurance carrier, is barred pursuant to Section 605 of the Health Care Service Malpractice Act of 1975, as amended (Act of October 15, 1975; P.R. 390, No: 111(40 Pa. S. §1301.605)). 49. Plaintiff's claims are barred by the applicable Statute of Limitations. 50. Plaintiff's injuries and losses, if any, were caused in whole or in part by persons or events outside of the control of Answering Defendants. 51. Plaintiff's injury and losses, if any, were caused in whole or in part by persons not a party to the within action. 52. Plaintiff's injuries, if any, were sustained as a result of natural and unknown causes and not as a result of any action or inaction on behalf of Answering Defendants. 53. At all times relevant hereto, Answering Defendants rendered care in an appropriate manner, within the standards of care applicable thereto and in compliance with all Statutes, Rules, Regulations, Protocols and/or Procedures applicable thereto. 54. Any acts and/or omissions of Answering Defendants were and are not the proximate cause or a substantial factor giving rise to Plaintiff's injuries and/or damages. 55. To the extent that Answering Defendants elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, Answering Defendants invoke the two schools of thought doctrine. 56. Plaintiff may have entered into a Release Agreement with other individuals or entities which has the effect of discharging any and all liability of Answering Defendants. 57. Plaintiff has failed to state a claim upon which relief can be granted. 58. All claims and causes of action pleaded against Answering Defendants are barred by Plaintiff's knowing and voluntary informed consent to the care in question. 59. Plaintiff's claims are barred by the doctrines of Comparative or Contributory negligence. 60. Answering Defendants invoke all affirmative defenses enumerated under Pa.R.C.P. 1030(a). Respectfully submitted, Dated: O V McKissock & Hoffman, P.C. I.D. N .: 6818 Laur . Burnette, Esquire I.D. o.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Henry K. Smith, D.O. and Smith Radiology, Inc. -V, 0 I, Henry K. Smith, M-13..-, hereby verify that the statements in Defendants' Answer and New Matter are true and correct to the best of my information, knowledge and belief. I understand that the statements are made subject to the penalties of PA.C.S. Section 4904, relating to the unsworn falsification to authorities. Henry K. Sm .P esident Smith Radiology, In 'b. Dated: VERIFICATION 00, I, Henry K. Smith, St?I B hereby verify that the statements in Defendants' Answer and New Matter are true and correct to the best of my information, knowledge and belief. I understand that the statements are made subject to the penalties of PA.C.S. Section 4904, relating to the unsworn falsification to authorities. Wo"n K. Si Wen , fvCB- Dated: CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Answer and New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 23151 Lemoyne, PA 17043-0222 (Counsel for Plaintiff) McKissock & Hoffman, P.C. Dated: 5 S VW By: LD. 91'or'36818 LaLtW M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Henry K. Smith, D.O. and Smith Radiology, Inc. n ? o c:- ::? ?,. -„ • ? T -?-. r„ N -? C 7 ?' i ' 1 t .l ?- t_f ' „ C7 _:': +i tV Cp 77 _? Cn -$ A Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiff PHILIP D. NEW, as Executor of the IN THE COURT OF COMMON PLEAS ESTATE OF IDA N. TONUI CUMBERLAND COUNTY, PENNA. Plaintiff DOCKET NO.: 05-3875 VS. HENRY K. SMITH, D.O., A/K/A CIVIL ACTION - LAW HENRY K. SMITH, M.D., AND (MEDICAL MALPRACTICE) SMITH RADIOLOGY, INC., Defendants JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANTS AND NOW comes the Plaintiff, Philip D. New, as Executor of the Estate of Ida N. Tonui, by and through his attorney, David J. Foster, Esquire, Costopoulos, Foster & Fields, and replies to the New Matter of Defendants as follows: 47. Denied. 48. Denied. 49. Denied. 50. Denied. 51. Denied. 52. Denied. 53. Denied. 54. Denied. 55. Denied. 56. Denied. 57. Denied. 58. Denied. 59. Denied. 60. Denied. Respectfully submitted: rl l David J. Fos squire I.D. No.: 23151 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Plaintiff Date: June 1, 2006 v VERIFICATION Philip D. New, as Executor of the Estate of Ida N. Tonui v. Henry K. Smith, D.O., a/k/a Henry K. Smith, M.D., and Smith Radiology, Inc. I, Philip D. New, Executor of the Estate of Ida N. Tonui, hereby verify that the facts set forth in the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANTS are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. t Philip D. New Dated: ` Z?? CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 1 It day of June, 2006, a true and correct copy of the foregoing PLAINTIFF'S REPLY TO NEW MATTER was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): B. Craig Black, Esquire MCKISSOCK & HOFFMAN 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Attorney for Defendants Henry K. Smith, D.O., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS Tiffany M. Miller n i7 - - CD "? >< WEI PHILLIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI, Plaintiff DOCUMENT NO.: 05-3875 V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., JURY TRIAL DEMANDED Defendants WITHDRAWAL OF APPEARANCE Kindly withdraw our appearance on behalf of Defendants, Henry K. Smith, D.O. and Smith Radiology, Inc., in the above-captioned. Respectfully submitted, By: McKissock & Hoffman, P.C. ts. tsiacK, tsgwire I.D .: 36818 L ren M. Burnette, Esquire I . D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: el-.&Asa 3o sa,r Attorneys for Defendants, Henry K. Smith, D.O. and Smith Radiology, Inc. r °? CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Withdrawal of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 23151 Lemoyne, PA 17043-0222 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: B. Cr Blac , Esquire 36818 Lauren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: d?t4e•i.?. se Zco;L Attorneys for Defendants, Henry Smith, D.O. and Smith Radiology, Inc. ?`;; - r ,, ?: - ,. _ ?> _ ? <? -?., ??.;? ?? -'" ---t ? ?. y •- ter„ _.) f•.. 1 ..ter ??.. ?? +1 .,,,r?. ? E__,y ? ... ?? ? ??Y / ry G,: -{ ORIGINAL PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) 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) Philip D. New, as Executor of the Estate of Ida N. Tonui (Plaintiff) VS. Henry K. Smith, D.O., a/k/a Henry K. Smith, M.D., and Smith Radiology, Inc. vs. (check one) ® Civil Action - Law ? Appeal from arbitration (other) The trial list will be called on 3/17/09 and Trials commence on t4 .11,14Q Pretrials will be held on 3/25/09 (Briefs are due 5 days before pretrials (Defendant) No. 05-3875 Term Indicate the attorney who will try case for the party who files this praecipe: David J. Foster, Esquire, P.O. Box 222, Lemoyne, PA 17043 George J. Costopoulos, Esquire, 10 East Louther Street. Carlisle, PA 17013 Indicate trial counsel for other parties if known: B. Craig Black, Esquire, 1017 Mumma Road, Suite 100, Wormleysbur8,-ft- V7043 -{? This case is ready for trial. Signed:- t - y Print Name: David Foster Date: 2/ 1 I T Attorney for: Plaintiff T © cz? iijx W ,/ ?y THE CHARTWELL LAW OFFICES, LLP BY: B. CRAIG BLACK, ESQUIRE I.D. NO.: 36818 PATRICIA HAAS CORLL, ESQUIRE I.D. NO.: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 Attorneys for Defendants, Henry K. Smith, D.O., a/k/a Henry K. Smith, M.D. and Smith Radiology, Inc. PHILIP D. NEW, as Executor of the Estate of IDA N. TONUI Plaintiffs V. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW (MEDICAL MALPRACTICE) DOCKET NO. 05 - 3875 HENRY K. SMITH, D.O., A/K/A/ HENRY K SMITH, M.D. and SMITH RADIOLOGY, INC., Defendants MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF RICHARD B. KEOHANE, M.D. AS VIOLATIVE OF THE MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR ACT §1303.512 AND/OR TO EXCLUDE FROM EVIDENCE THE MAMMOGRAPHY EXHIBITS CREATED BY DR. KEOHANE AS VIOLATIVE OF PENNSYLVANIA RULE OF EVIDENCE 901 AS THE EXHIBITS DO NOT FAIRLY AND ACCURATELY REPRESENT THE MAMMOGRAPHY AT ISSUE. Defendants, Henry K. Smith, D.O.., a/k/a/ Henry K. Smith, M.D. and Smith Radiology, Inc., by and through their counsel, B. Craig Black, Esquire, Patricia Haas Corll, Esquire and the Chartwell Law Offices, LLP and respectfully requests that this Honorable Court enter an Order excluding the testimony of Richard B. Keohane, M.D. ("Dr. Keohane") as Dr. Keohane does not meet the qualifications for an expert witness under the Medical Care Availability and Reduction of Error Act. ("MCare Act") Specifically, Dr. Keohane admittedly retired from the practice of medicine at the end of June of 2002, and has no ongoing teaching involvement. Accordingly, he is not qualified to testify in this matter pursuant to §1303.512 of the MCare Act which mandates that an expert testifying in a medical matter must be engaged in, or retired from active clinical practice or teaching within five previous years from the time of his testimony. Further, Dr. Keohane no longer holds an unrestricted license to practice medicine in the Commonwealth of Pennsylvania, and as such cannot testify as an expert witness in a medical malpractice matter. Additionally, moving defendants object to Dr. Keohane's testimony regarding and the use photographs of the mammograms at issue in this case. Specifically, Dr. Keohane, took digital photographs of the original mammograms in this matter which were magnified and subjected to photographic editing prior to being made into and used as exhibits during his deposition. Thus, the photographs violate Pennsylvania Rule of Evidence 901 in that they do not fairly and accurately represent the mammography that was viewed by Dr. Smith. Further, in a case were the central issue is what could be seen on mammography films, magnified and edited photographs are misleading to the jury and prejudicial to the moving defendants in a manner that cannot be addressed by a cautionary instruction by this Honorable Court. Accordingly, as set forth more fully below, Exhibits 3A, B, C and D and 5 A, B, C, and D, and Dr. Keohane s testimony attendant to them must be excluded. SUMMARY STATEMENT OF FACTS 1. On or about July 29, 2005, Ida N. Tonui ("Ms. Tonui ") commenced an action against the moving Defendants by way of Writ of Summons by and through Plaintiff's current counsel, David J. Foster, Esquire and the Law Firm of Costopoulos, 2 Foster & Fields. On or about August 12, 2005, Ms. Tonui died. Subsequently on or about October 2, 2005, the Cumberland County Register of Wills granted letters of administration to, Phillip D. New, as the Executor of the Estate of Ida N. Tonui, deceased. By stipulation between the parties, approved by this Honorable Court on October 27, 2005, it was agreed that Philip D. New, as Executor of the Estate of Ida N. Tonui would be substituted as the Plaintiff in this matter. 2. On or about March 30, 2006, Plaintiff filed a Complaint in this matter against the moving parties. The gravamen of this Complaint is that the baseline mammogram Ms. Tonui had performed at the Dunham U.S. Army Health Clinic in Carlisle Pennsylvania on October 1, 1999 was misread by Dr. Smith. 3. Specifically, in paragraph 8 of the Complaint, Plaintiff contends that Dr. Smith "failed to identify numerous pleomorphic calcifications in the left upper quadrant of various shapes and sizes, which should have been viewed with a high degree of suspicion." 4. Similarly, in paragraph 9 of the Plaintiff's Complaint, it is alleged that Dr. Smith "failed to identify a subtle increase in the density in the left upper quadrant when compared to the right." 5. In paragraph 11 of the Plaintiff's Complaint, it is further alleged that "the mammogram of October 1999 revealed the early stages of cancer of Tonui s left breast; and, had Defendant Smith correctly read the mammogram at that time, Tonui would have received proper and timely treatment and would have been cured of the breast cancer." Thus, what could be seen on the mammography is the central issue of this case. 3 6. Since March 30, 2006 when the Plaintiff filed the Complaint, this matter has progressed, until on February 17, 2009, Plaintiff, through counsel, David J. Foster, Esquire praeciped this matter to be listed for trial. Trial of this matter is now scheduled to commence on April 13, 2009. 7. Prior to filing its Praecipe For Listing Case For Trial, Plaintiff scheduled the deposition of Richard B. Keohane, M.D. ("Dr. Keohane"). This deposition, which was accomplished on July 19, 2007, was treated as if it had been taken on June 21 of 2007. 8. At the time of his deposition, Dr. Keohane advised that his license to practice medicine was a limited one and that he had retired from the active practice of medicine as of June 30, 2002. (See, deposition of Richard Keohane, M.D. taken on July 19, 2007, hereinafter referred to as "Keohane" at 14 and 15). 9. Indeed, Dr. Keohane testified as follows: Q. Dr. Keohane, my understanding from your testimony is that you retired from the active practice of medicine in June, the end of June of 2002; is that correct? A. That is correct. Q. So as I understand your testimony then, you have not engaged in the practice of medicine, the clinical practice of medicine with patients since that time correct? A. That is correct. Q. Am I to understand as well, Doctor, that the academic duties and responsibilities that you had while you were associated with the institutions you discussed, namely the University of Pennsylvania School of Medicine and Thomas Jefferson Medical College, similarly you have not undertaken any role in - - or teaching responsibilities with respect to medical students since your retirement in June of 2002; is that correct? 4 A. That is correct. Q. So you have neither clinically practiced medicine or been ended in teaching medicine since Tune, the end of Tune 2002, correct? A. Correct. Q. Now you maintain a current Pennsylvania license, is that correct? A. I do. Q. But that license, as I understand it, reflects inactive status, is that correct? A. Yes. It's a limited license. Q. You have essentially notified the Bureau of Professional and Occupational Affairs, the Bureau of Physician Licensing, of the fact that your retirement was effective on June 30th of 2002, and by virtue of that, they have issued to you a restricted license to practice medicine. A. That is correct. Q. Under the restricted license to practice medicine which you hold, Doctor, that would not allow you to render clinical services to the general patient population, isn't that correct? A. That is correct. Q. That restricted practice - - restricted license for the practice of medicine, that was effective as of the date of your retirement back in Tune of 2002, correct? A. Correct. Keohane at 14-16 (emphasis added). 10. Additionally, Dr. Keohane testified that he created the exhibits he utilized during his testimony by photographing the mammograms and placing them on a compact disc (Keohane at 43-44 and 54-55). On cross examination, however, Dr. 5 Keohane admitted that he both magnified the images to be shown to the jury as well as subjected them to photo-editing. Specifically, Dr. Keohane testified as follows: Q. Now, my understanding from your earlier testimony is that you were provided the originals of the mammograms from the August 1St, 1999 study, and that by virtue of concern that you were going to have to return those mammograms to Mr. Foster for his use, you elected to make photographs of the mammograms; is that correct? A. That's correct. I do that in almost any case that I review. Q. You could make copies of the mammographic films, could you not, Doctor? A. I don t have the facility to do that at my home. Q. Well, copies of mammograms are often obtained in a clinical context, are they not? A. Yeah, you could do that if you are at a place that does mammograms and has copy film and has a processor. I have none of those in my home. Q. Well, you certainly have access to institutions in the facilities where you could take films and have them copied, could you not? A. I suppose I could take them to a hospital and ask them to copy them. Whether they would or not, I dont know. Q. But in this case you elected not to do that. You elected instead to use a digital camera in order to take a photograph of the original mammographic films; is that correct? A. That is correct. Q. What kind of camera did you use? A. Olympus. Q. Was it a - - do you know what the mega pixel rating of the camera was? A. I think eight. 6 Q. Do you know what - - A. No. I'm sorry, five. Q. Do you know what the comparison is with respect to the mega pixel rating of that particular camera versus the quality of the original mammographic film? Have you ever done that comparison, Doctor? A. No, I haven't. Q. Did the Olympus camera that you used to make these photographs contain a telephoto lens? A. Yes, it does. It's a zoom lens. Q. Did you utilize a zoom lens in taking any of these particular photographs? A. Yes, for the detail use, I did. Q. Do you know to what extent of magnification you utilized when you used that telephoto lens to hone in on the original mammographic film to take the blowup or the zoom-in film? A. I would suspect two or three times. Q. Do you know or is that just an assumption on your part? A. That is an assumption. I didn t measure it, but using a magnifying glass and seeing what the calcifications looked like, and then looking at the - what I had on the computer screen looked about the same. Q. Let's talk a little bit about your magnifying glass. What power magnification do you use in your magnification glass when you review mammograms? A. I believe its two and a half. Q. Did you adjust the photographs of the mammograms for contrast after you took them? A. Some of them, yes. 7 Q. So as I understand what you did, in addition to utilizing this camera to take pictures of the mammograms, is that once the pictures were obtained in digital format, you used some kind of photo editing software in order to enhance those photographs; is that correct? A. Yes, for demonstration purposes. Q. The enhanced photographs that you took of the original mammographic studies, you then had those printed out on some type of photopgraphic paper; is that correct? A. No. Q. Did you have those digital formats taken to a printer or some kind of poster preparer? A. No. Q. Did you arrange for the preparation of the poster boards that were displayed during your testimony earlier and marked as Exhibits 3A through 3D? A. No. Q. Do you know how they were prepared? A. Not specifically, no. Q. I would surmise, however, Doctor that the poster board presentation of those photographs are many times the size of the original photogrraphs that you took, is that correct? A. Yes, they were made for demonstration purposes. Keohane at 78-82 (emphasis added). 11. Given the above it is clear that Dr. Keohane is not competent to render testimony in this matter, nor can the exhibits he created for submission in this matter be 8 submitted as they will be are misleading to a jury. LEGAL STANDARD A. Oualifications of Dr. Keohane 12. The Medical Care Availability and Reduction of Error Act ("MCare Act") was approved on March 20, 2002 and became effective 60 days later on May 20, 2002. This Act changed the litigation of medical malpractice cases in the Commonwealth. For example, it set forth written criteria for the qualification of an expert in a medical malpractice case at section 1303.512. 13. Specifically, section 1303.512 of the MCare Act mandates as follows: 1303.512. Expert qualifications (a) GENERAL RULE. - No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable. (b) MEDICAL TESTIMONY. - An expert testifying on a medical matter, including the standard fo care, risks and alternatives, causation and the nature and extent of the injury must meet the following qualifications: (1) Possess an unrestricted physician's license to practice medicine the any state or the District of Columbia. (2) Be engaged in or retired within the previous five years from active clinical practice or teaching. 40 P.S. § 1303.512(a and b). 14. Given his own admissions, Dr. Keohane is not competent to offer an expert opinion in this matter pursuant to the mandates of Section 1303.512. 15. Specifically, at the time of his deposition, Dr. Keohane did not possess an unrestricted license to practice medicine in, "any state or the District of Columbia" as 9 required by Section 1303.512 (b)(1) of the MCare Act. Accordingly, he is not "competent to offer an expert medical opinion in a medical professional liability action" under the guidance provided by the legislature in Section 1303.512 of the MCare Act for this reason alone. 16. Further, at the time of the trial of this matter, Dr. Keohane, who retired from the active practice of medicine in June of 2002, had been retired for more than six years. Thus, he was not "engaged in or retired within the previous five years from active clinical practice or teaching" as required by Section 1303.512(b)(2) of the MCare Act to be competent to offer an expert opinion in this matter. 17. Plaintiff appears to ignore the fatal flaw created by Dr. Keohane s restricted license to focus only on the timing of Dr. Keohane's retirement. Indeed, Plaintiff appears to have taken the position that the taking of Dr. Keohane's deposition on the defined date of June 21, 2007 in some way constitutes timely testimony under Section 1303.512 of the Act. It does not. 18. Indeed, the Superior Court in the case of Weiner v. Fisher, 871 A.2d 1283 (Pa. Super 2005) noted that the plain language of a statute is in general the best indication of the legislative intent that gave rise to the statute. 871 A.2d at 1286. Using this benchmark, the Weiner court stated of 1303.512 (b)(1 and 2): The unambiguous meaning of the language is that the expert must possess the license at the time he testifies. There is no statutory contemplation (e.g. through inclusion of language in the past tense or modifying phrases) of the possibility that the relevant time for possession of the license could be at some point in the past. The second qualification is that the testifying expert "be engaged in or retired within the previous five years from active clinical practice or teaching," Again the statutory verb is present tense, referring to the time of giving testimony. To apply a different temporal reference point to the segment of the statute that deals with a retired expert would violate the plain meaning of the 10 statute. Weiner at 1286-87. 19. As Dr. Keohane has not possessed an unrestricted license to practice medicine since 2002 and will be retired for more that six years at the time of the trial of this matter, the unambiguous language of the MCare Act and the holding in Weiner mandate his preclusion as an expert. 20. Further, the Weiner court alluded to the fact that the preservation of expert testimony by deposition to avoid the impact of the clock after the retirement of an expert is ineffective. It stated: We are concerned about the disruption and expense that a pa may incur if its expert is qualified according _to section 512M at the time of a deposition or preparation of a report, but then, because of trial delays, falls outside the five year period bX the time that he is to give testimony at trial. We are also concerned about the possibility of abuse by delay tactics, the primary goal of which is to prevent the trial from occurring until the opponent's expert has been retired for more than five years and thus is unqualified to testify. Regardless of such concerns, our duty is to discern and effectuate the legislature's intent. Weiner at 1288 (emphasis added). 21. Given all of the above, it is clear that under section 1303.512 of the MCare Act, Dr. Keohane may not testify in this matter. B. Standard re: Photographic Evidence 22. Moving defendants object to Dr. Keohane's testimony regarding and the use of photographs of the mammograms at issue in this case. Specifically, Dr. Keohane, took digital photographs of the original mammograms in this matter which were magnified and subjected to photographic editing prior to being made into and used as 11 exhibits during his deposition. Thus, the photographs violate Pennsylvania Rule of Evidence 901 in that they do not fairly and accurately represent the mammography that was viewed by Dr. Smith and are misleading and prejudicial. 23. Beyond this, Dr. Keohane admittedly magnified and edited the photographs he took of the mammography. These photographs were then enlarged again to be shown to the jury. In this case which involves a determination of what Dr. Smith could see on a mammogram, such photographs are misleading to the jury and prejudicial to the moving defendants in a manner that cannot be addressed by a cautionary instruction by this Honorable Court. 24. Pointedly, Pennsylvania Rule of Evidence 901 requires that demonstrative evidence, such as the photographs of the mammography at issue herein, be authenticated or identified as a condition precedent to its admissibility. As Dr. Keohane admittedly magnified, manipulated and enlarged Exhibits 3A, B, C and D and 5 A, B, C, and D, Dr. Keohane's testimony attendant to them must be excluded. 25. Indeed, where a photographic image distorts that which it purports to represent, is will be inadmissible. See, Flynn v. City of Chester, 429 Pa. 170, 239 A.2d 322 (1968)(photograph taken under weather conditions different from those at the time of the incident which distorted the view of the area rendered inadmissible). 26. Given Dr. Keohane's admissions that he magnified and manipulated the photographs he took of the original mammography and that they were further enlarged in the process of converting them to exhibits, Exhibits 3A, B, C and D and 5 A, B, C, and D, and Dr. Keohane's testimony attendant to them must be excluded. WHEREFORE, for all the foregoing reasons,. moving defendants respectfully 12 request that this Honorable Court prohibit Dr. Keohane's testimony from being submitted in this manner and prohibit the submission of Exhibits 3A, B, C and D and 5 A, B, C, and D. Respectfully submitted, THE CHARTWELL LAW OFFICES, LLC Dated: /Woa s.4 tt, taw9 .w B. CR BLACK, ESQUIRE---,, Attorke'y I.D. No. 36818 PATRICIA HAAS CORLL, ESQUIRE Attorney I.D. No.: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendants, Henry K. Smith, D.O., a/kla Henry K. Smith, M.D. and Smith Radiology, Inc. 13 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Motion in Limine upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by hand delivery and by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 23151 Lemoyne, PA 17043-0222 THE CHARTWELL LAW OFFICES, LLP By: B. CV.: lack, Esquire I.D. 6818 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendants, Henry K. Smith, D.O., a/k/a Henry K. Smith, M.D. and Smith Radiology, Inc. Date: /l9,ar a as, 200 9 14 -? ?? =? ? ?`= -n ?`?;== _r„?? u? , ?-?, ? _ .rte {;`?;; U'..? (? ?.? q -.! ? "< PHILIP D. NEW, Executor of the IDA N. TONUI, Plaintiff VS. HENRY K. SMITH, D.O., a/k/a HENRY K. SMITH, M.D. and SMITH RADIOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3875 CIVIL IN RE, PRETRIAL CONFERENCE Present at a pretrial conference held March 25, 2009, were David J. Foster, Esquire, attorney for the plaintiff, and B. Craig Black, Esquire, attorney for the defendants. This is a medical malpractice case in which it is alleged that the defendant radiologist failed to diagnose the early stages of the plaintiff s breast cancer. The defendant has filed a motion in limine with regard to the testimony of Richard B. Keohane, M.D. contending that the doctor does not meet the qualification requirements of the MCare Act. The motion also contends that the doctor, in his deposition, resorted to the use of a mammogram which was magnified, contained adjustments in contrasts and was otherwise misleading. A ruling on this motion in limine is reserved to the trial judge. The parties are attempting to reach a stipulation concerning the authenticity of certain medical records. This trial is expected to be of four to five days' duration. There are witnesses who are coming from as far away as San Diego. Counsel have expressed the hope that the trial of this case would begin on Monday of the civil trial week. March 25, 2009 X 4 Kevin ess, J. 7'C :Z Ind SZ 8vw6001 Doi David J. Foster, Esquire For the Plaintiff B. Craig Black, Esquire For the Defendants Court Administrator :rlm . ORIGINAL Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: 717.761.2121 Fax: 717.761.4031 Email: dionfoster(&aol.com PHILIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI Plaintiff VS. HENRY K. SMITH, D.O., A/K/A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., Defendants Attorney for Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. DOCKET NO.: 05-3875 CIVIL ACTION -LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF RICHARD B. KEOHANE M.D. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. By way of further answer, this deposition had originally be -1- scheduled for June 21, 2007, within 5 years from the time that Dr. Keohane had retired on June 30, 2002; it was postponed at defense request until July 19, 2007 and it was stipulated that it would be treated as if it had in fact taken place on June 21, 2007 as originally scheduled, in contemplation of this issue. At trial, Dr. Keohane's videotaped deposition is to be introduced as his testimony. 8. Admitted. By way of further answer, Dr. Keohane's testimony was taken (effective June 21, 2007) within 5 years from the date of his retirement on June 30, 2002. 9. Admitted. 10. Admitted. By way of further answer, Dr. Keohane in his testimony also indicated that the enlargements did not add or change the information contained in the original films, and were accurate representations of what he viewed when examining the original films with a magnifying glass: Q. Now, Doctor, I am going to have you look at the blowups, and these are blowups of - - Exhibit 3 consists of blowups of the 1999 mammograms and then further magnifications of some of that. First of all, you didn't make the blowup, but did you make the copy of the originals that led to the blowup? A. What I did when I reviewed the films initially, I knew that the films would have to go back to you and be sent to other physicians to review. Basically for my own reference so that I could go back and look at them, all I did was put the films up on a view box and use a digital camera and photographed them. Q. Then you put them on a disc? -2- A. Yes. Q. Compact disc? A. Yes. Q. Then from that they were sent by my office for processing to be put on this poster board. A. That's correct. Q. Now, did - - in looking at the blowups, do they change the information that you were able to glean from the original films? A. No, nothing was done to change the information. Q. When you conducted your review and in reaching your conclusions, did you use your photographs or blowups - - A. No. Q. - - or did you use the original - - A. I used the original films. Keohane at pp. 43-44, attached. In addition, Dr. Keohane testified: Q. Did you utilize these blowups that were made from your photographs in rendering your opinion? A. No. Q. Did you utilize your photographs themselves in rendering your opinion? A. No. I only used the original films. -3- Keohane at p. 103, attached. Finally, defense counsel made no objections during the course of this deposition to the use of the photographic blowups during Dr. Richard Keohane's testimony. 11. Denied. Dr. Keohane is competent to render testimony as he gave his testimony within 5 years from the date of his retirement. In addition, the exhibits he utilized are not misleading to the jury and should be permitted. LEGAL STANDARD A. Qualifications of Dr. Keohane 12. Admitted. 13. Admitted. 14. Denied. Dr. Keohane was competent to offer testimony at the time he offered it inasmuch as it was within the previous 5 years from the date of his active clinical practice. 15. Denied as a conclusion of law. See answer to # 14 above. 16. Admitted that he had retired in June of 2002, more than 6 years from the present date; however, it was within 5 years from the date of his retirement from active clinical practice that he gave his testimony. 17. Denied. 18. No answer required as it is a statement of law. See Plaintiff's -4- accompanying brief. 19. Denied as a statement of law. See Plaintiff's accompanying brief. 20. Denied as a statement of law. See Plaintiff's accompanying brief. 21. Denied. B. Standard re: Photographic Evidence 22. Admitted that Dr. Keohane took digital photographs of the mammograms as testified; however, Dr. Keohane specifically testified that they do fairly and accurately represent the mammography of the original films viewed by Dr. Smith. Further, Dr. Keohane testified as follows: Q. Then you were satisfied that the blowups of those photographs that were prepared on the poster board were accurate reproductions of the actual photographs that you took; is that correct? A. They appeared to be so to me. Keohane at p. 82, attached. 23. These photographs were utilized for demonstration purposes; any differences in size and contrast were described to the jury in Dr. Keohane's testimony, and Dr. Keohane stated that they accurately represent the content of the original mammogram films viewed by Dr. Smith. 24. Dr. Keohane properly authenticated and identified the enlargements used during his testimony and as such they are permissible demonstrative evidence that can be used during his testimony. -5- 25. Denied as a statement of law. By way of further answer, a photographic image is not distorted as Dr. Keohane testified that it is an accurate representation of the original mammogram film. 26. Denied as a statement of law. WHEREFORE, Plaintiff requests that this Honorable Court deny the motion in limine of the Defendants in this case. Respectfully submitted, David J. Foster, wire I.D. No.: 23151 COSTOPOULOS, FOSTER & FIELDS 831 Market Street, P.O. Box 222 Lemoyne, PA 17043 Phone: 717.761.2121 Fax: 717.761.4031 Web: www.costopoulos.com ATTORNEY FOR PLAINTIFF Date: March 31, 2009. -6- CERTIFICATE OF SERVICE I, David J. Foster, Esquire, of the law offices of Costopoulos, Foster & Fields,do hereby certify that on this 31ST day of MARCH a true and correct copy of the foregoing PLAINTIFF'S ANSWER TO DEFENDANTS' MOTION IN LIMINE was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): B. Craig Black, Esquire THE CHARTWELL LAW OFFICES, LLP 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 Attorney for Defendants Henry K. Smith, D. O., and Smith Radiology, Inc. By: COSTOPOULOS, FOSTER & FIELDS David J. Foster -7- 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PHILIP D. NEW, as Executor of CIVIL ACTION - LAW the ES TATE of IDA N. TONUI, (MEDICAL MALPRACTICE) Plaintiff, V. No. 05-3875 HENRY K. SMITH, D.O., a/k/a HENRY K. SMITH, M.D., and SMITH RADIOLOGY, INC.., Defendants JURY TRIAL DEMANDED Videotaped Deposition of RICHARD B. KEOHANE, M.D. DATE: Thursday, July 19, 2007 TIME: 10:00 a.m. PLACE: Offices of Costopoulos, Foster and Fields 831 Market Street Lemoyne, Pennsylvania TAKEN BY: Plaintiff APEX REPORTING SERVICE By: Sharon L. Dougherty P. 0. Box 6265 Harrisburg, PA 17112-0265 717-545-3553 c ?y? -' 2 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 APPEARANCES: For the Plaintiff: DAVID J. FOSTER, ESQUIRE COSTOPOULOS, FOSTER & FIELDS 831 Market Street Lemoyne, PA 17043 For the Defendants: B. CRAIG BLACK, ESQUIRE DAVID SCHERTZ, ESQUIRE McKISSOCK & HOFFMAN, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 I N D E X Witness Direct Cross (On Qualifications) RICHARD B. KEOHANE, M.D. Examination by: Mr. Foster 5 -- Mr. Black -- 14 Examination by: Direct Cross Redirect Recross Mr. Foster 31 -- 100 -- Mr. Black -- 62 -- 104 Exhibits Marked No. 1 (Curriculum Vitae) 5 No. 2 (Report) 31 No. 3A,B,C,D (1999 Mammogram Films) 45 No. 4 (Mammogram Report) 45 No. 5A,B,C,D (2003 Mammogram Films) 53 **** Exhibits 3 and 5 retained by Attorney Foster APEX Reporting Service f 3 PROCEEDINGS 3 STIPULATION 4 (It is hereby stipulated by and between s counsel for the respective parties that signing, 6 sealing, certifying, and filing are hereby waived, and 7 that all objections, except to the form of the e question, are reserved to the time of trial.) 9 10 MR. FOSTER: Again, Craig, the stipulation i i between the parties that, for purposes of the five-year 12 rule regarding the qualifications of an expert witness 13 in medical malpractice cases, this deposition shall be 14 treated as if it had occurred on June 21st of 2007. is MR. BLACK: I agree with that, pursuant to 16 the dialogue that we had back in June, and I guess if 1"7 there is any question about that, I don't think that 18 either of us would have a problem with incorporating 19 that transcript -- 20 MR. FOSTER: Agreed. 21 MR. BLACK: -- to further expound upon 22 what the agreement was. 23 MR. FOSTER: Agreed. 24 (Discussion off the record.) 25 THE VIDEOGRAPHER: The time on the vii APEX Reporting Service 4 i monitor is 10:02:46. 2 My name is John Moore of Moore Legal 3 Services. 4 This begins the videotaped deposition of s Richard Keohane, M. D. testifying in the matter of 6 Philip D. New, et al versus Henry K. Smith, D.O., 7 et al in the Court of Common Pleas, Cumberland County, a Pennsylvania, Case No. 05-387. 9 This deposition is being taken at io 831 Market Street, Lemoyne, PA. Today's date is i 1 July 19, 2007. 12 Will Counsel please identify yourselves 13 and state whom you represent. 14 MR. FOSTER: My name is David Foster. 15 I represent the plaintiff, Philip New, who is the 16 executor of the estate of Ida Tonui. 17 MR. BLACK: Good morning. My name is 18 Craig Black and I represent Dr. Henry Smith and Smith 19 Radiology. 20 THE VIDEOGRAPHER: Will the court rel 21 please identify herself and swearing in or affirm the 22 witness. 23 THE COURT REPORTER: My name is St 24 Dougherty. 25 RICHARD B. KEOHANE, M.D., APEX Reporting Service 5 1 having been sworn, was examined and testified as 2 follows: 3 THE VIDEOGRAPHER: Please begin. 4 eL wsitiui Exl?b No. 1, s Es?;anlmalrked for i en ca ion. 6 ?j_RCTI FRAM) ATION ua cations a BY MR. FOSTER: 9 Q Dr. Keohane, will you state your full name i o for the record, please? 11 A Richard B. Keohane. Last name is 12 K-E-O-H-A-N-E. 13 Q Your present address? 14 A 20 Fariston Road in Wayne, Pennsylvania. 15 Q You are a retired radiologist; is that 16 correct? 17 A That's correct. 19 Q When did you retire? 19 A The end of June 2002. 20 Q What is a radiologist? 21 A A radiologist is a doctor who specializes 22 in diagnosing disease using a combination of 23 modalities, x-rays primarily, nuclear medicine in some 24 cases, MRI in some cases, and CT scans. All of it has )5 to do with radiation. APEX Reporting Service 6 > Q What is a diagnostic radiologist? 2 A It's a radiologist who specializes in just 3 doing the diagnosis of disease as opposed to a 4 therapeutic radiologist which uses radiation to s primarily treat cancer. 6 Q When you were in practice, were you a 7 diagnostic radiologist? e A I was. 9 Q As a diagnostic radiologist, did you have io a particular focus or expertise in the area of ii mammography? 12 A During the last ten years of my practice 13 it was devoted primarily to mammography. Before that I 14 did general radiography which includes barium enemas is and upper GIs, and diagnosing fractures and that sort 16 of thing. 17 But probably for the last ten to twelve 1a years, it was primarily spent reading mammograms. 19 Q What is a mammogram? 81) A A mammogram is an x-ray performed of the 21 breast in an effort to find early signs or suspicious 22 areas that may lead to a diagnosis of cancer. U Q Is that the essential purpose of a 24 mammogram is to detect the early presence of cancer? s A In most cases, yes. Occasionally, a woman APEX Reporting Service 7 1 may come in with a lump, and using a combination of 2 mammography and ultrasound it may turn out that it is 3 just a simple cyst, but primarily it is to find early 4 signs of cancer. s Q Did I engage you to perform an expert 6 review of the mammograms in this case? 7 A Yes, you did. a Q Did you perform that review? 9 A I did. to Q Are you prepared to offer professional 11 medical opinions based upon your review? 12 A I am. 13 Q Doctor, before we get into your review and 14 your findings, I want you to describe for the jury your 1 s professional education, training, and experience. 16 Where did you go to college and medical 17 school? 18 A I went to Dickinson College and graduated 19 with a Bachelor of Science Degree in 1963. Following 20 that I spent four years at Jefferson Medical College 21 which is now Thomas Jefferson University, and received 22 my M.D. Degree in 1967. 23 Q Go ahead. 24 A Following that I served a one-year 25 internship at Pennsylvania Hospital, and after that -- APEX Reporting Service 8 1 Q Is that in Philadelphia? 2 A In Philadelphia, and after that I went 3 back to Jefferson to do a four-year residency in 4 radiology where basically as a resident you learn how s to read x-rays and make reports and -- but that was a 6 four-year program. Q You completed that in 1972? 6 A Correct. 9 Q From 1972 to 1975 were you in the United to States Navy? 11 A I was. 12 Q Did you have a position with the United 13 States Navy? 14 A I was Chief of Radiology at the Naval 15 Hospital, Annapolis, Maryland. 16 Q You completed that in 1975; is that 17 correct? 18 A Correct. 19 Q Thereafter, did you have various faculty 2o appointments with various medical hospitals? 21 A In 1975 I returned to Philadelphia and z2 became a member of the staff in the radiology 23 department at Pennsylvania Hospital. Since it is a 24 teaching hospital, we also had faculty appointments 25 with the University of Pennsylvania for several years. APEX Reporting Service 9 1 Then there was an affiliation with z Jefferson for awhile where I was on the faculty of 3 Jefferson, and then for the last five to six years it 4 was back to the University of Pennsylvania, and from s 1997 to 2002 I was a clinical assistant professor of 6 radiology, University of Pennsylvania School of 7 Medicine. e Q When you talked about all of those 9 schools, were they actually schools of medicine? to A Yes. 11 Q What hospital administrative appointments 12 have you had? Particularly in 1975 to 1976, were you a 13 clinical assistant -- 14 A Clinical assistant radiologist at 15 Pennsylvania Hospital, and then various appointments 16 through the years as associate radiologist, and finally 17 in 1993 to 2002 I was chief of the Section of General la Diagnostic Radiology at Pennsylvania Hospital. 19 Q What were the responsibilities of the 20 chief of the Section of General Diagnostic Radiology? 1 A It was primarily the administration of the 22 section of General Diagnostic Radiology which included 3 -- scheduling was a major problem, make sure all of the >4 areas were covered, making sure the vacations didn't 2s interrupt the work flow. APEX Reporting Service 10 1 In addition to that, we had to supervise 2 the continuing medical education and the teaching of 3 our residents and medical students. 4 Q Are you certified by the American Board of 5 Radiology? 6 A I am. 7 Q When did you receive that certification? 9 A 1972. 9 Q Are you licensed in Pennsylvania? to A Yes. 11 Q When that was? 12 A 1968. 13 Q Are you a member of the American College 14 of Radiology? is A Yes. 16 Q Radiological Society of North America? 17 A Yes. 18 Q American Roentgen -- 19 A Roentgen Ray Society, yes. ?o Q Society for Computer Applications in ?1 Radiology? >_2 A I was until my retirement. ?3 Q Society of Breast Imaging? 4 A Yes. s Q Society of Uroradiology? APEX Reporting Service 11 13 1 A Until my retirement I was, yes. 1 At the time I was doing this I was one of 2 Q A member of the Philadelphia -- how do you 2 approximately 25 people in the country that were 3 pronounce that? 3 reviewing mammograms. The mammograms would come fr 4 A Roentgen Ray Society, the Pennsylvania 4 all over the country. s Radiologic Society, and the Philadelphia College of 5 In my case, I could not review anything 6 Physicians. I was members of those, but since my 6 from Pennsylvania or New Jersey since we were 7 retirement I am no longer a member. -7 contiguous and I may know the institutions involved, a Q Were you a member of the Radiation Safety a but films would come from all over the country and we 9 Committee at the Pennsylvania Hospital? 9 would review them, score them, and send them back. 10 A I was. 10 Q For the accreditation process. 11 Q From 1995 to 2002? 11 A The accreditation process which was run 12 A Yes. 12 from the American College of Radiology. 13 Q A member from 1994 to 2000, Emergency Ro( n3 Q Have you been qualified as an expert 14 Committee at the Pennsylvania Hospital? 14 witness in various Pennsylvania courts? is A Yes, I was. 15 A Yes, I have. 16 Q Have you had -- what teaching and clinical 16 Q What counties have you been so qualified 17 responsibilities have you had at the University of 17 in? 18 Pennsylvania and affiliated hospitals? 18 A Dauphin, Cumberland, Montgomery, Chester, 19 A The Pennsylvania Hospital for the last 19 and Delaware. 20 five to six years has been one of the major teaching 20 Q Philadelphia? 21 affiliates of the University of Pennsylvania. As such, 21 A And Philadelphia, yes. 22 we had to oversee teaching of medical students when 22 Q In those cases, what percentage of those 23 they were on their rotation through Pennsylvania 23 cases would you estimate you testified to on behalf of 24 Hospital. 24 plaintiffs versus defendants? 25 We also had our own freestanding residency 25 A I would estimate that 80 to 90 percent of APEX Reporting Service APEX Reporting Service 12 14 1 program which we taught our own residents and anybody 1 all my work was for defense. 2 that wanted to come for an elective, they could come to 2 MR. FOSTER: I offer him as an expert in 3 Pennsylvania Hospital in the Radiology Department and 3 the field of diagnostic radiology and mammography, and 4 serve part of their training there. 4 if you have any questions. s Q What editorial positions have you had? 5 MR. BLACK: Certainly. I would like to do 6 A In 1988 I was a reviewer for Radiographics 6 some voir dire on his qualifications. Thank you, which is one of the peer reviewed magazines. Articles 7 David. e would be submitted prior to publication, and we would e t S A?VIIN?ITION n 9 review them for appropriateness and whether there was y a i ica o sll 1o any changes that should be made. 1o BYMR. BLACK: 11 Q In 1998 through 2002, according to your 11 Q Dr. Keohane, my understanding from your 12 CV, you were a MAPS, M-A-P-S, Clinical Image Reviewer, 12 testimony is that you retired from the active practice 13 and you have ACR after that. What is that? 13 of medicine in June, the end of June of 2002; is that 14 A In order for any facility to perform 14 correct? 15 mammograms, they have to be accredited. The 15 A That is correct. 16 accreditation consists of basically two parts. One is 16 Q So as I understand your testimony then, 17 a complete audit including an audit of the actual 17 you have not engaged in the practice of medicine, the 18 physics of each machine and the processors and review 19 clinical practice of medicine with patients since that 19 of recall -- more of the business part of the practice. 19 time; is that correct? 20 If you pass that to become fully 20 A That is correct. 21 accredited, you would have to send images to a reviewer 21 Q Am I to understand as well, Doctor, that 22 who would actually grade the images as to whether it 22 the academic. duties and responsibilities that you had 23 was a -- as I recall, about 20 different points that 23 while you were associated with the institutions you 24 you had to score the mammogram on, and then depending 24 discussed, namely the University of Pennsylvania School 25 on the final score, you either passed or failed. 25 of Medicine and Thomas Jefferson Medical College, APEX Reporting Service APEX Reporting Service 15 i similarly you have not undertaken any role in -- or 2 teaching responsibilities with respect to medical 3 students since your retirement in June of 2002; is that 4 correct? s A That is correct. 6 Q So you have neither clinically practiced 7 medicine or been engaged in teaching medicine since s June, the end of June 2002, correct? 9 A Correct. 10 Q Now, you maintain a current Pennsylvania 11 license; is that convect? 12 A I do. 13 Q But that license, as I understand it, 14 reflects inactive status; is that correct? 15 A Yes. It's a limited license. 16 Q You have essentially notified the Bureau 17 of Professional and Occupational Affairs, the Bureau of 18 Physician Licensing, of the fact that your retirement 1 g was effective on June 30th of 2002, and by virtue of 20 that, they have issued to you a restricted license to 21 practice medicine. 22 A That is correct. 23 Q Under the restricted license to practice 24 medicine which you hold, Doctor, that would not allow 25 you to render clinical services to the general patient APEX Reporting Service 16 1 population; isn't that correct? 2 A That is correct. 3 Q That restricted practice -- restricted 4 license for the practice of medicine, that was s effective as of the date of your retirement back in June of 2002, correct? 7 A Correct. s Q Now, Doctor, you indicated in your 9 testimony that you were initially board certified by 1 o the American Board of Radiology back in 1972, correct? 11 A Correct. 12 Q Were you board certified, Doctor, at a 13 time when you -- the certification by the American 14 Board of Radiology did not require recertification at 15 specific intervals? 16 A That is correct, yes. 17 Q That is commonly and colloquially referred 16 to as grandfathering; is that correct? 19 A To my knowledge, there is no requirement 20 to this day to be recertified in radiology. 21 Q You are aware, however, that the American 22 Board of Radiology maintains a program for the 23 maintenance of certification; is that correct? 24 A That is correct, they do. 25 Q That is a voluntary program by those APEX Reporting Service 17 i individuals who have passed the board certification in 2 radiology to agree to submit to recertification at 3 ten-year intervals in order to maintain competence in 4 their certification, correct? s A That is correct, but that was not in 6 effect when I retired. 7 Q Members who were initially board certified 9 by the American College of Radiology or American Board 9 of Radiology -- excuse me -- could elect, could they io not, Doctor, to enroll in the maintenance of 11 certification program that is held by the American 12 Board of Radiology? 13 A You can now, but that was not in effect 14 when I retired. 15 Q So it's your testimony that back in 2002 16 this program on maintenance of certification did not 17 exist. 1s A To my understanding, yes. 19 Q Did the Mammography Quality Standards Act 2o exist when you retired from practice back in June of 21 2002? 22 A Yes, it did. 23 Q The Mammography Quality Standard Act also 24 has criteria for those individuals who desire to be 25 board certified by the American Board of Radiology with APEX Reporting Service 18 1 respect to the number of mammograms that they are 2 required to have interpreted under the auspices of a 3 board certified radiologist in order to be qualified to 4 sit for the board certification examination; is that s correct? 6 A I'm sorry. Could we break that down a 7 little bit? I think I know what you are asking, but s I'm not certain. I don't want to mislead you. 9 Q Are you aware that under the terms of the 1o Mammography Quality Standards Act there are 11 requirements for individuals as far as the number of 12 mammograms and their exposure to the interpretation of 13 mammograms in order to qualify to take the board 14 certification examination? 15 A Yes. As a resident, before your boards, 16 and before you can sit for the boards you have to 17 demonstrate that you have read so many mammograms, and 18 mammography is a separate section of the Board of 19 Radiology, and you have to qualify by having read a 20 number of mammograms under supervision to be able to 1 sit for the boards. 2 Q In fact, those requirements did not exist 3 back when you undertook your board certification 4 examination in 1972; is that correct? s A That's correct. There was no section of APEX Reporting Service I; 19 1 mammography at that time. 2 Q In fact, Doctor, it's true, is it not, 3 that it wasn't until 1990 that the American Board of 4 Radiology included as part of their certification s examination the field of breast imaging? 6 A I am not sure of the exact date, but that 7 sounds somewhere right in that area, yes. s Q Now, Doctor, you explained to us what 9 diagnostic radiology entails, and my understanding is 1o that your practice throughout your medical career 11 involved the clinical practice of diagnostic radiology, 12 correct? 13 A Correct. 14 Q You told us essentially that you had 15 worked at two different institutions, the University of 16 Pennsylvania and Pennsylvania Hospital which I 17 understand is affiliated with the University of 19 Pennsylvania Medical School; is that correct? 19 A No, that is not correct. I have only ever 20 worked at Pennsylvania Hospital. The only exception to 21 that was at one point we -- our department used to 22 provide some radiologic service to Wills Eye Hospital, 23 but primarily I was always at Pennsylvania Hospital. 24 Q Did you, as part of your academic and your 25 faculty involvement, train residents who were in APEX Reporting Service 20 1 medical school at the University of Pennsylvania School 2 of Medicine? 3 A Yes. 4 Q By virtue of that involvement with those s medical schools, that is, hence, where you came about 6 the title of being a clinical associate or clinical 7 assistant professor affiliated with the University of e Pennsylvania School of Medicine, correct? 9 A That is correct. 10 Q Were you involved at all, Doctor, in the 11 didactic treating -- didactic teaching of medicine at 12 the University of Pennsylvania School of Medicine? 13 A No, but I was at Pennsylvania Hospital 14 with their students and sometimes their residents who 15 would rotate through. 16 I did not lecture at the physical location 17 of the University of Pennsylvania, but many of their 19 residents and many of their medical students would come 19 to Pennsylvania Hospital where I did lecture. 20 Q It was as part of their clinical 21 orientation, those students' clinical orientations that 22 you became involved in mentoring or teaching them in 23 the area of general diagnostic radiology; is that 24 correct? 25 A Primarily mammography and genitourinary APEX Reporting Service 21 1 radiology were most of the lectures. 2 Q Now, you indicated on your curriculum 3 vitae that between 1994 and 1997 you held an 4 appointment as a clinical assistant professor at s Jefferson Medical College; is that correct? 6 A Yes, that's correct. 7 Q During that period of time -- well, strike a that. 9 Jefferson Medical College, is that io affiliated in some way with the Jefferson Hospital, 11 Jefferson University Hospital? 12 A It all comes under the -- I think the 13 correct term or the umbrella is the Thomas Jefferson 14 University, which one section is the hospital and one 15 is the medical school and one is the nursing school. 16 They also have a graduate education program. 17 Q As far as fulfilling your duties and 1e responsibilities as a clinical assistant professor with 19 Jefferson Medical College, physically were you located 20 at Jefferson Hospital? 21 A No, I was not. I was at Pennsylvania 22 Hospital. 23 Q You were at Pennsylvania Hospital. 24 Were you aware, Doctor, back in 1994 25 through 1997 that at the Jefferson Medical College APEX Reporting Service 22 1 there existed a section of radiology known as the 2 breast imaging section? 3 A Yes, I was. 4 Q You were not a member of the breast s imaging section at Jefferson Hospital during that 6 period of time, were you? 7 A No, but I was at Pennsylvania Hospital. s Q Now, you are not board certified in 9 internal medicine, are you, Doctor? 10 A No. 11 Q In fact, you never undertook any 12 specialized training after your fulfillment of your 13 rotating internship in internal medicine; is that 14 correct? 15 A That's correct. 16 Q You also recognize, do you not, Doctor, 1.7 that within the field of internal medicine there is a 18 subspecialty of medical oncology. 19 A Yes, there is. 20 Q In fact, there exists a board 21 certification under or subspecialty board certification 22 in the field of internal medicine for medical oncology; 23 is that correct? 24 A I don't know. I am not familiar with 25 their rules and how they set up their accreditations. APEX Reporting Service 23 1 Q Presuming that such a board certification 2 exists, you are not board certified either by the board 3 -- certifying board for internal medicine, nor are you 4 subboard certified in the field of medical oncology, s are you, Doctor? 6 A No. 7 Q In fact, none of your clinical experience e during your practice has ever dealt with clinical 9 oncology or therapeutic oncology; is that correct? 10 A Only Pennsylvania Hospital had a molded 11 disciplinary breast committee meeting once a week where 12 all cases of diagnosed breast cancer from the following 13 week were reviewed with a diagnostic mammographer, 14 which would be like myself, and also the clinical is oncologists and the surgeons and the radiation 16 oncologists. 17 It was a standing committee that reviewed is every case, and that would be -- I did not propose the 19 treatment, but I was actively involved in the 20 Committee. 21 Q You were present for the discussion where 22 various therapeutic alternatives were submitted by 23 medical oncologists with respect to diagnosing cases of 24 breast cancer; is that correct? 25 A That's correct. APEX Reporting Service 24 1 Q But you did not suggest or formulate or in 2 any way offer treatment programs in the field of 3 oncology for those patients; is that correct? 4 A No, I did not. s Q Similarly, the American College of 6 Radiology also has a certification in the field of 7 radiation oncology or therapeutic oncology, do they s not? 9 A They do. 10 Q And radiation oncology is the utilization 11 of radiation as a treatment alternative for various 12 malignancies that may be found within the body; is that 13 correct? 14 A That's correct. is Q You do not hold board certification by the 16 American Board of Radiology in the field of therapeutic 17 radiation, do you? 18 A No, I do not. 19 Q Now, you've also provided us within the 20 context of your curriculum vitae the medical literature 21 which you have authored and which has been published. 22 You used the term peer reviewed during 23 Mr. Foster's questioning of you regarding your 24 credentials. Can you describe for the jury what it 2s means when a journal is peer reviewed, Doctor? APEX Reporting Service 25 1 A It means the article is submitted ahead of 2 time to the editorial board and they review it to see 3 whether the case is worth being published and whether 4 there are any factual errors in it. s Q In fact, on your curriculum vitae page 3, 6 you have listed under your bibliography two 7 publications which were submitted to peer reviewed e journals and ultimately were published within those 9 journals; is that correct? to A That is correct. 11 Q It's true, isn't it, Doctor, that neither 12 of the articles that you have submitted to peer review 13 journals for publication have dealt with, in any sense 14 of the word, mammography or mammographic 15 interpretations? 16 A That is correct. 17 Q In fact, both of those journals which you 18 have submitted to peer reviewed journals for 1 g publication were submitted before 1981; isn't that correct? A That is correct. 2 Q They were both published before 1981; 3 isn't that correct? 4 A That is correct. s Q Other than those two articles, your APEX Reporting Service 26 1 curriculum vitae represents that you have no other 2 published medical literature; is that correct? A That is correct. 4 Q You have never submitted either to a peer s reviewed journal or to a nonpeer reviewed journal any 6 articles that were published dealing with the issue of 7 mammography. a A That's correct. 9 Q Similarly on page 3 you have a section, to lectures by invitation. That would be invitations that 11 are extended to you as a medical practitioner to come 12 to conferences or seminars, things of that nature, to 13 provide lectures to other medical practitioners. Is 14 that what that is generally? is A That is -- this is for named lectureships 16 at usually medical schools, is what that refers to, and 17 no, I did not do that. is Q So you have never been asked by any 19 medical school to come to lecture with respect to the 20 interpretation of mammograms; is that correct? 21 A No, I have not, that's correct. 22 Q You have never received any grants from 23 any agencies or corporations with respect to 24 mammography trials or oncology trials. 25 A No. APEX Reporting Service 27 1 Q You had discussed with Mr. Foster the 2 reference on page 2 to your curriculum vitae that 3 between 1998 and 2002 you served as a clinical image 4 reviewer for the American College of Radiology. s That actually, the clinical review of 6 those mammograms, dealt with the technical parameters 7 of the mammograms; isn't that correct, Doctor? e A That is correct. 9 Q It didn't deal in any way with whether or io not the particular radiologist who was interpreting 11 that mammogram properly interpreted the mammogram. It 12 dealt with whether or not the technical components of 13 the mammography itself comported with the requirements 14 of the American College of Radiology. 15 A With one exception. All of the images 16 submitted for review are supposed to be normal 17 mammograms with no evidence of anything abnormal. 18 Q But your review of the mammogram is not to 19 -- in that capacity was not to determine whether or not 20 there was any abnormality on the mammogram. It was to 21 look at the technical components of the mammography 22 itself to determine whether or not that met the 23 requirements of the American College of Radiologists. 24 A No, that is not entirely correct because 25 sometimes we would find something on the mammogram d APEX Reporting Service 28 was not reported, at which time we turned it over to 2 the ACR and they would follow-up with the institution 3 that did the films, and sometimes you would find things 4 that were suspicious that were not reported. So you s had to look at the mammograms. 6 The weight was certainly on the technical 7 aspects, but you had to also review the mammogram for e accuracy. 9 Q You also indicate on your curriculum vitae 1o that you were a reviewer for Radiographics. That is a 11 peer reviewed journal of what organization? 12 A I think it's the Radiologic Society of 13 North America publishes that. 14 Q You served as a reviewer for one year? is A That's correct. 16 Q How many articles did you review? 17 A Maybe four or five. 18 Q How many of those four or five articles 19 dealt with the subject of mammography? 20 A None. 21 Q The curriculum vitae that you referred to, 22 you continued -- this was prepared in January of 2006; 23 is that correct? 24 A Yes. 2-5 Q I understand from your testimony that with APEX Reporting Service 29 i respect to your professional and scientific society 2 memberships, that the Society for Computer Applications 3 in Radiology, the Society for Uroradiology, the 4 Philadelphia Roentgen Ray Society, Pennsylvania s Radiologic Society, and the Philadelphia College of 6 Physicians, you did not maintain membership in any of 7 those societies following your retirement in June of a 2002. 9 A That is correct. 10 Q So in actuality, your curriculum vitae as ii of June 19th, 2006 should not reflect that you 12 maintained active membership in any of those societies; 13 is that correct? 14 A Yes, I suppose you are correct. 15 Q Now, with respect to the Society of Breast 16 Imaging, there are individuals who actually are 17 entitled to be referred to as Fellows of the Society of 19 Breast Imaging; isn't that correct? 19 A That is correct. 20 Q Do you know, Doctor, what requirements 21 there are in order to be able to say that you are a 22 Fellow of the Society of Breast Imaging? 23 A To the best of my knowledge, you have to 24 be elected to that position. Q You are not a Fellow of the Society of APEX Reporting Service 30 1 Breast Imaging. 2 A No. I am a member. 3 Q You are a member of the American College 4 of Radiology, correct? s A That's correct. 6 Q Do you serve on any committees within the 7 American College of Radiology? a A No. 9 Q Are you familiar that the American College 1o of Radiology has a committee that is referred to as the 11 BIRADS Committee? 12 A Yes, there is. 13 Q BIRADS is an acronym for the Breast 14 Imaging and Reporting Data System; is that correct? 15 A That's correct. 16 Q You are not a member of that committee? 17 A No. 18 Q Are you familiar, Doctor, with the 19 American College of Radiology BIRADS classification 20 system? 21 A Yes, I am. 22 Q Is that something that you utilized 23 throughout your practice once it was promulgated by the 24 American College of Radiology? 25 A Yes. APEX Reporting Service 31 I MR. BLACK: That is all of the questions I 2 have at this time. Thank you, Doctor. 3 DIRECT EXAMINATION 4 BY MR. FOSTER: s Q Doctor, you indicated earlier that you did 6 conduct a review of the various mammograms in this 7 case, and pursuant to that review, did you then author e an expert report dated March 7th, 2006? 9 A Yes, I did. 10 Q Does that contain your findings? 11 A Yes, it does. 12 MR. FOSTER: For the record, that has been 13 marked as Exhibit 2. 14 epsrti on Exhibit No. 2, 15 wdas and marked for i en ica on.) 16 17 BY MR. FOSTER: 1e Q Doctor, what materials were you provided 19 by me in order to conduct your review of the films in 20 this case? 21 A I was given their reports and mammograms 22 dated 10/1/99, 7/9/03, 7/15/03, 8/11/03, and 15/13/04, 23 along with -- 24 Q 5/13/04? 25 A 5/13/04. I'm sorry. And 1/13/05 APEX Reporting Service 32 1 Mammograms dated 10/1/99, 7/9/03, 7/15/03, and 5/13/04 2 Medical records of Jeffrey Sedlack dated 7/31/03, 3 medical records of Carlisle Regional Medical Center 4 dated 8/11/03, and medical records of Carlisle Regional s Medical Center dated 9/2/03. 6 Q Now, Doctor, of all those materials, did 7 they include in fact the original mammograms from e October of 1999 that were originally interpreted by the 9 defendant in this case, Dr. Henry K. Smith? 10 A Yes. 11 Q Did it also include Dr. Smith's report 12 concerning his findings from his review? 13 A It did. 14 Q Now, from the various medical records that 15 you reviewed, what historical background did you 16 obtain? 17 A In 2003 the patient was diagnosed with a 1 a rather large breast cancer in the upper outer quadrant 19 of her left breast, along with abnormal lymph nodes. 20 Subsequent to this, she underwent I 21 believe a needle aspiration which was suspicious, 22 followed by core biopsies in the upper outer aspect of 23 the left breast, and eventually she had a mastectomy, 24 radiation therapy, and chemo therapy for a stage 3 C 25 breast carcinoma. APEX Reporting Service 33 I Q What is a stage 3 C breast carcinoma? 2 A It's a rather advanced stage of breast 3 cancer. 4 Q Did she ultimately die as a result of the s metastasis of the cancer to other parts of her body? 6 A Yes, she did. 7 MR. BLACK: Objection. a Please go off the record. 9 THE VIDEOGRAPHER: Going off record. 1o time on the video monitor is 10:40:05. 11 MR. BLACK: I have two objections. 12 Initially there is nothing within 13 Dr. Keohane's reports which specifically indicate that 14 he would be testifying that the cancer, the diagnosed 15 cancer in 2003 was the cause of Mrs. Tonui's death, and 16 I would initially object to that opinion being 17 expressed as being beyond the scope of the report that 1e Dr. Keohane proffered in this case. 19 The second objection is with respect to 20 the qualifications of Dr. Keohane to render that 21 opinion based on the qualifications, voir dire, which 22 was presented at the onset of this deposition. 23 My understanding was that he was being 24 proffered as an expert in the field of diagnostic 2s radiology. I don't know that he has expressed APEX Reporting Service 34 1 qualifications in the field of medical oncology and/or 2 whether or not he is in a position to make such a 3 conclusion or impression based on his qualifications. 4 So I also modify and add to my objection s as to outside the scope of the report with the absence 6 of qualifications as an expert to render those 7 opinions. e MR. FOSTER: I would just simply point out 9 that the question and the answer were directed toward 1o the medical history that he had obtained from his own 11 review of the medical records. It's not offered as his 12 ultimate conclusion as an opinion. It is simply what 13 he gleaned from the medical records, and the records do 14 indicate that, and with respect to his report, he did 15 state based upon his review of the records that 16 unfortunately -- I am quoting -- she succumbed to a 17 disease in 2005. 1e So I am not offering him to make an expert 19 opinion on that, on causation. Simply having him relay 20 the historical background that was made available to 21 him when he received his -- conducted his review. 22 MR. BLACK: I think as the question was 23 asked, it was asked whether or not he had an opinion as 24 to whether or not the cancer, the breast cancer, the 25 diagnosed breast cancer caused her death. That was my APEX Reporting Service 35 1 understanding of the question. 2 It was not being presented in the context 3 of his factual understanding, the background of her 4 care. It was asked as an opinion, and I object to it s as an opinion. 6 MR. FOSTER: Well, what I will do is I 7 will make an effort to rephrase. 8 THE VIDEOGRAPHER: Back on the record. 9 The time on the video monitor is 10:43:06. Please io begin. ii BYMR. FOSTER: 12 Q Doctor, I will rephrase that question. 13 From your review of the records, did it 14 appear that Ida Tonui ultimately died from cancer in 15 2005? 16 A Yes. 17 Q Now, did you also review Dr. Smith's 18 report concerning his review of the 1999 mammograms? 19 A Yes, I did. 20 Q What did Dr. Smith's report conclude with 21 respect to his review of those mammograms? 22 A His impression was that there was a 23 negative baseline mammogram and recommended a one- to 24 two-year follow-up, and gave it BIRADS Category 2 which 25 is benign findings. APEX Reporting Service 36 1 Q What is a negative baseline mammogram? 2 What does that mean? 3 A Baseline mammogram is the initial 4 mammogram of any patient that is referred to as the s baseline mammogram. It's usually a screening 6 mammogram. 7 Screening mammograms -- mammograms are 8 divided into both screening studies which are for g asymptomatic women, and then diagnostic studies which io there is some kind of a problem, a lump or somebody saw ii something on a mammogram, in which case you have to do 12 further studies and then it becomes a diagnostic 13 mammogram. 14 Q So was the mammogram in 1999 a screening 15 mammogram? 16 A It was. 17 Q Mrs. Tonui was asymptomatic as of that 18 point. 19 A From my understanding, yes. 20 Q When Dr. Smith writes in his report, it 21 was a negative baseline mammogram, what does that mean? 22 What does the term negative mean? 23 A That he saw no abnormalities that would 24 indicate that there was any evidence of malignancy. 25 Q Now, when one is doing a screening APEX Reporting Service 37 1 mammogram, is that again a mammogram done, as you have 2 testified earlier, to ascertain the presence of 3 anything -- any evidence of cancer, anything suspicious 4 of cancer? s A Correct. Well, for every mammogram you 6 have to do that, but especially for screening. It's been shown that screening mammograms are the -- leading 8 to the early diagnosis of cancer made a significant g improvement in the overall survival of women with io breast cancer. 11 Q Now, Dr. Smith indicated that it was a 12 negative baseline mammogram, and that he found no 13 evidence of any abnormalities; is that correct? 14 A That is correct. is Q Do you agree with those findings? 16 A No, I do not. 17 Q Before we get into your specific findings 18 and your conclusions, I have a few questions concerning 19 your review of the original 1999 mammograms. 20 First, were you in active practice in 21 October of 1999 when these films were reviewed by 22 Dr. Smith? 23 A Yes, I was. 24 Q What was your position in active practice 25 at that time? APEX Reporting Service 38 1 A I was chief of the Section of General 2 Diagnostic Radiology which includes the Breast Imaging 3 Center. 4 Q At -- s A At Pennsylvania Hospital. 6 Q At that time were you also engaged, as you 7 testified earlier, as one of the clinical image 8 reviewers for the American College of Radiologists to 9 determine accreditation procedures for mammograms? io A Yes. 11 Q Were you familiar with the standard of 12 care for diagnostic radiologists and specifically in 13 the field of mammography for 1999? 14 A Yes. is Q Now, I have some blowups of the films in 16 question that I will have you describe for the jury 17 which are collectively marked Exhibit 3, but before we 18 get to that, I want to ask you, when you conducted your 19 review and reached your conclusions, did you do so by 20 reviewing the actual original mammogram films? 21 A Yes. Initially all that I received to 22 review were the original mammograms and the report that 23 was authored by Dr. Smith. 24 Q When you say original mammograms, you are 25 talking about the original mammograms of October of APEX Reporting Service 39 1 1999. 2 A That's correct. 3 Q Now, when you conducted your review on the 4 original mammograms of 1999, did you use anything, any s kind of tools to assist you in examining the films? 6 A Magnifying glass. 7 Q Is the use of a magnifying glass standard e procedure in examining mammogram films? 9 A It's mandatory for all mammograms. 10 Q Is the use of a magnifying glass in fact 11 the standard of care for the proper examination of 12 mammogram films? 13 A Yes, it is. 14 Q From your review of the original mammogram 15 films taken in October 1999, in what ways do you 16 disagree with Dr. Smith's findings as set forth in his 17 report? 18 A Primarily the disagreement boils down to 19 two things. No. 1, my review showed innumerable 20 varying size calcifications in the upper outer aspect 21 of the left breast which were not mentioned at all in 22 Dr. Smith's report. 23 In addition, Dr. Smith stated the breasts 24 were symmetric, which in my opinion they are not. 25 There is increased density in the upper outer aspect of APEX Reporting Service 40 i the left breast where subsequently in 2003 the cancer 2 was discovered. 3 Q Let's start with the -- what you call the 4 innumerable calcifications of different sizes and s shapes. In your report you characterize that as 6 pleomorphic. 7 A Yes, that would be varying shapes and e varying sizes. 9 Q You indicated that they were in the upper i o left quadrant of Mrs. Tonui's left breast. 11 A Correct. Upper outer aspect of the left 12 breast. 13 Q Could you demonstrate using your own chest 14 where that would be? is A Sure. If this is the breast here, this 16 would be the lower portion of the breast. This would 17 be the upper. This would be the outer, and this would 19 be the medial aspect, and if you go here, this would be 19 the upper outer aspect of the left breast. 20 Q It's in that area from your examination of 21 the 1999 mammograms that you observed the pleomorphic 22 calcifications? 23 A That's correct. 24 Q Now, first of all, what is a calcification 25 when it is seen in breasts? APEX Reporting Service 41 1 A Calcifications of the breast are -- it's 2 actually some form of calcium that gets precipitated or 3 deposited in the breast. It can be from varying 4 causes. s Basically, calcifications break down into 6 three types. There is some that are absolutely benign. 7 They are nice and round. They are smooth looking and e they have hollow centers and they are always benign and 9 you can forget about them. 10 Then there are the pleomorphic kind which 11 are maybe somewhat angular. They have multiple sizes 12 and multiple shapes, and these are the ones that are 13 highly suspicious for cancer. 14 And then there is a group in the middle 15 which you can't tell, and if you can't tell, you have 16 to biopsy them to find out whether they are abnormal or 17 not. 18 Calcifications are probably one of the 19 foremost things that we see on mammograms that can lead 20 to the diagnosis of breast cancer. 21 Q How would you characterize the pleomorphic 22 calcifications you observed in the 1999 mammogram as 23 among the various classifications you just described? 24 A To me they were highly suspicious. zs Q When you say highly suspicious, you mean APEX Reporting Service 42 i highly suspicious of what? 2 A Of cancer. 3 Q Was there any mention in Dr. Smith's 4 report of pleomorphic calcifications in the upper left s quadrant of the breast? 6 A There is no mention of any calcifications 7 in Dr. Smith's report. e Q You also testified that there was a 9 difference in the density of the two breasts? 10 A Yes. 11 Q Could you explain what you meant by that 12 and what the significance of that is? 13 A Changes in the density of a breast can be 14 from multiple causes. The most common probably is that 15 the woman's breasts are just normally asymmetric which 16 occurs in some women. 17 The majority of women's breast are almost 1e like minor images of each other. In some cases some 19 women get more glandular tissue in one part of their 20 breast than the other and it can be completely normal, 21 although it has to be evaluated in all cases when you 22 see that. 23 The other thing that can cause changes in 24 density is differences in the amount of compression 25 used when the mammogram is done. Less compression APEX Reporting Service 43 1 makes the breast look more dense. More compression 2 flattens it out better and there would be less density. 3 In this case, there is an asymmetry to the 4 breast with increased density or white area in the s upper outer aspect of the left breast. That, combined 6 with the multiple almost innumerable calcifications in 7 the upper outer aspect of the left breast makes this a e highly suspicious situation that at the very least 9 merits fiirther investigation. 10 Q Was the difference in the density between 11 the two breasts as you described mentioned in 12 Dr. Smith's report? 13 A No. 14 Q Now, Doctor, I am going to have you look 15 at the blowups, and these are blowups of -- Exhibit 3 16 consists of blowups of the 1999 mammograms and then 17 further magnifications of some of that. 18 First of all, you didn't make the blowup, 19 but did you make the copy of the originals that led to 20 the blowup? 21 A What I did when I reviewed the films 22 initially, I knew that the films would have to go back 23 to you and be sent to other physicians to review. 24 Basically for my own reference so that I could go back 25 and look at them, all I did was put the films up on a APEX Reporting Service 44 1 view box and use a digital camera and photographed 2 them. 3 Q Then you put them on a disc? 4 A Yes. s Q Compact disc? 6 A Yes. 7 Q Then from that they were sent by my office e for processing to be put on this poster board. 9 A That's correct. 10 Q Now, did -- in looking at the blowups, do 11 they change the information that you were able to glean 12 from the original films? 13 A No, nothing was done to change the 14 information. 15 Q When you conducted your review and in 16 reaching your conclusions, did you use your photographs 17 or blowups -- 1e A No. 19 Q -- or did you use the original -- 20 A I used the original films. 21 Q I will have you first look at Exhibit 3A, 22 Doctor, which is over here, and I have it labeled as 23 1999 CC. What is CC? 24 A CC refers to craniocaudad which is just a 25 fancy way of seeing a view from the top, and basically APEX Reporting Service 45 i the film is -- 2 MR. FOSTER: Could you focus on the 3 for a second? I'm sorry. He is going to explain what 4 a CC is. s on Exhibi,° 3pB C and D, 6 u i t edlors, ?3er? tan sition Exhibit No. 4, 9 v "WR MF Vannm Wed for 9 i en Ca on.) o THE WITNESS: Where the film was placed 1 under the breast and the breast is compressed from the 2 top down. So basically it's the view looking down on 3 the top of the breast, and the MLO view, the film 4 placed over at the side. s BY MR. FOSTER: 6 Q What does MLO stand for? 7 A Mediolateral oblique, and that view is 9 done because true lateral view, shooting straight 9 across, wouldn't get all of the breast tissue on it. o So if you do it this way, you get much more breast 1 tissue which is the beam coming through this way on the 2 breast. 3 Q Why is it, Doctor, that there are two 4 separate views of the breast, one looking down from the s top and one looking from the side? APEX Reporting Service 46 1 A So you can orient any abnormality in three 2 dimensional space. If you have to do a biopsy or 3 actually just to describe where the lesion is, you have 4 to be able to accurately say it's in the upper outer s aspect of the left breast, or it's at 12:00. 6 Frequently we use the face of a clock to orient people 7 as to where the abnormality is. R If it were 3:00 in the left breast, it 9 would be directly lateral from the nipple. 12:00 would lo be at the top of the breast. 11 Q If you only used one view, for example, as 12 in Exhibit 3A, the CC view, you are only seeing a 13 two-dimensional representation of what is seen on the 14 film. 15 A That is correct, and you don't know where 16 it is in three-dimensional space. 17 Q That is why you have two different views. 18 A Exactly. 19 Q Looking now at the poster which is a 20 blowup of the CC from 1999, can you explain -- 21 A Yes. 22 Q -- to the jury in general terms what this 23 represents? 24 A This represents -- this is the right 25 breast. This is the left breast. This would be the APEX Reporting Service 47 1 chest wall on either side, and this would be the z nipple, which in this case is marked with a little BB 3 out there, and this is the view from the top, and they 4 are oriented this way so that radiologists make it easy s to compare one side to the other. 6 Q In other words, these are actually -- are 7 they two separate photographs? 8 A Two separate films, but you place them 9 together on the view box so that it makes it easy to i o compare. 11 Q To compare the left breast -- 12 A To the right. 13 Q And again, this study is looking down from 14 above. is A Correct. 16 Q This on the right is actually the left 17 breast. 18 A Yes. It's confusing for people, but that 19 is the way radiologists put films up to look at them. 2o Like if I was looking at you and you were looking at 21 me, you know, on my left is your right, but it is just 22 the convection that you use for looking at the films. 23 Q Now, on this, this is the 1999 CC view of 24 Ida Tonui's breast. Can you see on this the 25 pleomorphic calcifications which you described that you APEX Reporting Service 48 1 viewed from the originals looking under the microscope 2 -- a magnifying glass? 3 A You have to use a magnifying glass to see 4 the calcifications. You might be able to see a few on s here, but not the very small pleomorphic calcifications 6 that you can see with a magnifying glass. 7 This view does demonstrate, however, if 8 you look at this area on the right breast and this area 9 on the left breast, you will notice that this is much 1 o whiter or denser than this area over here, and this is 11 a definite asymmetry in the breast. 12 The calcifications without the use of a 13 magnifying glass are extremely difficulty to see. 14 Q Is that why the use of a magnifying glass is is the standard of care? 16 A Yes, it is. 17 Q Now, did you actually make a magnification 18 of a portion of the breast? 19 A Yes. 20 Q I will put up what has been marked as 21 Exhibit 3B, and is this the magnification of the CC 22 view looking down from the top of a portion of the 23 left breast? 24 A Now with magnification, this was the 2s appearance of the increased density, but if you look APEX Reporting Service 49 i closely there are very, very fine calcifications, 2 especially in this area where there are almost too many 3 to count. It's almost like a cloud of calcifications. 4 There is another area here. When you look s at these with a magnifying glass, some of these, 6 although it looks like one calcification, is actually 7 an area of multiple small calcifications, and this is 8 what makes them extremely suspicious, and this is the 9 area of the increased density which you could see io better on the previous view. 11 Q Can you circle with a marker -- and I 12 don't suggest that you circle every calcification that 13 you can see, or is there some that stand out -- 14 A Actually, it's the whole area. When you 15 use a magnifying glass on the original films, which has 16 much more detail than this, you can see that this whole 17 area right here just contains numerous small, fine 18 calcifications of varying sizes that are suspicious, in 19 my opinion. 20 Q Can you circle the whole area then? 21 A Yeah. 22 Q That you are referring to on Exhibit 3B. 23 A You may have to pass that over here 4 because I am wired in. s Q Now, Doctor, let's go on to the other APEX Reporting Service 50 1 view. This was the CC view looking down. z A Magnification, yes. 3 Q Now we will look at Exhibit 3C, which is 4 the MLO view. What does MLO stand for again, Doctor? s A Mediolateral oblique. 6 Q This is where each breast is being looked 7 at from the side and down? 6 A Yeah. In an oblique manner. It's not a 9 true lateral. It's usually about a 45 degree coming io this way. 11 Q Again, does this show both breasts? 12 A Yes, it does. This is the right breast 13 here, nipple. This is actually what we call the 14 pectoralis fold which is this muscle here in the 15 anterior portion of your armpit. 16 The same thing here. Here is the fold on 17 the left side, nipple -- well, actually it's cut off on 18 this when I photographed it. 19 And again, looking at this area and 20 comparing it to this area, is the area of increased 21 density. You can see that this again appears a larger 22 area of white on this side than on this side. It is 23 not as apparent as on the craniocaudad view, but there 24 is a subtle change here in the density. 25 Again, with a magnification you can see APEX Reporting Service 51 i that there are calcifications here, although on just 2 the routine view they are there, but it is difficult to 3 see them without a magnifying glass. 4 Q Again, is a magnifying glass something s that is utilized as a matter of course -- A A matter of course. -7 Q -- when you are examining mammogram films. e Now, did you make a blowup of a portion of 9 the left breast of the MLO view in 1999? o A Correct. 11 Q Is that what Exhibit 3D represents? 12 A Yes. And again, when you look at this, in 13 this area here, there are just multiple irregular 14 varying sized calcifications, this whole area right i s here, which were not mentioned in the report. 16 And again, calcifications that you see in 17 an area like this in one breast that is not present in 18 the other breast is highly suspicious, and biopsy is 9 warranted to find out why this one area of the breast 20 has all of these calcifications. 22 Q Could you likewise circle that area that 22 you are referring to? 23 A (Witness complies.) 24 MR. FOSTER: Do you have that on there? 25 THE VIDEOGRAPHER: Yes. APEX Reporting Service 52 i BY MR. FOSTER: 2 Q Now, Doctor, based upon your review of the 3 1999 mammograms, do you have an opinion to a reasonabl 4 degree of medical certainty as to whether Dr. Smith's s failure to observe and report the findings that you 6 have described to us was a violation of the standard of 7 care for radiologists in 1999? e A In my opinion, it was. 9 Q Based upon your review of that 1999 i o mammogram, what further action should have been done or 11 recommended by the examining radiologist in this case, 12 Dr. Smith? 13 A I think two things should have been done 14 initially. One is magnification views of the upper is outer aspects of the left breast. This is a 16 specialized radiographic technique which actually 17 magnifies a small portion of the breast, and it's done 18 with special equipment that is just attached to the 19 regular mammogram machine, and it's easily done. 20 The second thing is I think a compression 21 spot view of the upper outer aspect of the left breast 22 is mandatory because of the change in density, the 23 increased density in the upper outer aspect of the left 24 breast which should be further investigated. 25 Had this been done, I feel that a biopsy APEX Reporting Service 53 1 -- well, it certainly should have been done, but I 2 think it probably would have been done if that were the 3 course of action that was followed. 4 Q Did Dr. Smith order or recommend either s the magnification views that you described or the 6 compression spot views that you described? 7 A No. s Q Do you have an opinion to a reasonable 9 degree of medical certainty as to whether Dr. Smith's o failure to order compression spot views and 1 magnification views was a violation of the standard of 2 care? 3 A In my opinion, it was. s gR oExhibit I A? Bd C, and D, ell ication. 6 17 BY MR. FOSTER: ie Q Now, Doctor, did you also review the 19 original mammograms dated July 9th, 2003, July 15th, 20 2003? 21 A Yes. Initially when I first received 22 material in this case, I only had the original 23 mammograms and the original report from 1999. 24 Subsequently, about a month later, I 25 received mammograms from 2003 from -- I think it was APEX Reporting Service 54 i July 9th and July 15th. 2 Q Did you conduct a review of those 3 additional films? 4 A Yes, I did. s Q What findings did you make with respect to 6 those additional films taken in 2003, specifically 7 July 9 and July 15, 2003? a A The films of July 9 were performed, and 9 the radiologist who read that said that there were io numerous calcifications and a suspicious area of 1 architectural distortion in the upper outer aspect of 12 the left breast, and recommended compression spot views 13 and magnification views of the left breast. 14 These were subsequently performed, I 15 believe it was on July 15th, and what you see now is a 16 marked increase in the number and type of the 17 calcifications, new calcifications, but a generalized iR increase in an area of increased density, and there may 19 also be an area of actual puckering and mass effect in 20 the upper outer aspect of the left breast, all of which 21 are highly suspicious of malignancy. 22 Q Now, again, did you review those films 23 yourself and see the same findings that was conducted 24 in 2003? 25 A Yes, I reviewed them, the original APEX Reporting Service 55 1 mammograms subsequently. After I reviewed them, I z photographed them. 3 Q Now, I am going to have you look at some 4 blowups with respect to some of the 2003 films, and s first, this is marked Exhibit 5A which is dated 6 July 9, 2003 CC. Could you explain what that 7 represents? 8 A What this represents is, again, the 9 craniocaudad view with the view from the top of the io breast. This being the left breast. This being the 1 right, and now you can see that there is fii Cher 12 increase in the density throughout this whole area up 13 here. 14 Here you can see some new calcifications. 15 There are other calcifications in here, but again, when 16 you magnify these, you see that the -- there are now 17 innumerable calcifications, thousands of calcifications 18 of varying sizes and shapes, and this is highly 19 suspicious of malignancy. 20 The area of involvement has also increased 21 so that actually now the calcifications you can see 22 almost with your naked eye out in this area which were 23 not present on the previous films. 24 Q You see apparently black markings on the 25 upper portion of that film up here. APEX Reporting Service 56 i A Yes. 2 Q Did you mark them? 3 A No. They were on the films when I 4 received them. 5 Q Is there anything similar, of similar 6 concern on the right breast? 7 A No, there is -- the right breast is 8 normal. 9 Q Did you make an enlargement or i o magnification of a portion of the -- actually, this one 11 is dated from the July 15th, 2003 CC. 12 A This is -- the patient returned to have 13 follow-up. The previous blowups of both the right and 14 left breast were performed on the 9th, at which time it is was recommended that fiuther views of the left breast 16 be performed, and they were performed on the 15th, and 17 that is what this represents. 18 Q Are these in fact the kind of compression 19 spot views -- 20 A This is actually a magnification view 21 which was performed at that time. 22 Q It's one of the type of things that you 23 say -- that you testified that Dr. Smith should have 24 ordered back in 1999. 2S MR. BLACK: Objection. Off the record, APEX Reporting Service 57 1 please. 2 THE VIDEOGRAPHER: Going off record. 3 time on the video monitor is 11:13:07. 4 MR. BLACK: I am trying to be patient, s David, but you are leading him in all of these films. 6 I will not allow you to lead him to express opinions on 7 the standard of care. 8 MR. FOSTER: I am just reiterating what he 9 has already testified to. o MR. BLACK: That is not true. You are 1 leading him down the road of suggesting what this film 2 is, and what he should have done or shouldn't have 3 done. 14 His testimony stands for itself, but I is can't allow you just to lead him into these opinions. 16 So my objection is as to the form of the 17 question in that it's leading. 18 MR. FOSTER: Okay. 19 THE VIDEOGRAPHER: Back on the record. 20 The time on the video monitor is 11:13:49. Please 21 begin. 22 BYMR. FOSTER- 23 Q Doctor, you indicated that this is a 24 compression spot view? 25 A This is a magnification view. APEX Reporting Service 58 > Q I'm sorry. Magnification view. 2 You testified earlier that in 1999 3 Dr. Smith should have ordered a magnification view of 4 the left breast based upon the 1999 mammograms. s A That is correct, I did. 6 Q Is that the same type of view we are 7 talking about here? 8 A Yes. 9 Q What can you see on this view that is io important and significant? 11 A Well, if you look you can see that these 12 calcifications are scattered all throughout the outer 13 aspect of the left breast here. If you look closely, 14 there are varying sizes. Here is a couple large ones 15 in this area. It's almost like they are smeared 16 together. There are so many of them. 17 There are thousands of calcifications in 18 this area, and this whole area would have to be 19 considered suspicious. That, especially coupled with 20 the fact that there were calcifications in this area on 21 the previous study that were not evaluated, and the 22 progression here is unbelievable in four years, that 23 the number of calcifications here is highly suspicious 24 for malignancy. 25 Q Is this in the same or different area of APEX Reporting Service 59 1 the left breast than those calcifications you pointed 2 out that you viewed in 1999? 3 A It's in the exact same area of the left 4 breast. s Q Now, let's look at Exhibit 5C which is the 6 MLO dated July 9, 2003. Again, which is the MLO view, 7 Doctor? e A Mediolateral oblique view, right breast 9 here, left breast here. The changes that you see now 1o are -- again, you can see some calcifications out in 11 this area, although again, without using the magnifying 12 glass, you can't see the full extent and the number of 13 the calcifications. 14 The other thing that has changed is there 15 is now abnormal lymph nodes. There were previous 16 normal lymph nodes in 1999, but these are large dense 17 things which are also suspicious for metastatic disease 18 from the left breast. 19 Again, you can see the marked area of 20 increased density in this area as opposed to this area 21 in the right breast, which again, coupled with the 22 calcifications, makes it highly suspicious. 23 Q Finally, Exhibit 5D, which is what, 24 Doctor? 25 A This is a detail view of the upper portion APEX Reporting Service 60 1 of the left breast, mediolateral, and again, the 2 calcifications all over the entire area here. 3 You can see these white specs of varying 4 sizes which do not occur in the right breast, and in my s opinion, this is highly suspicious for malignancy. 6 Q Now, Doctor, based upon your review of the 7 1999 films in conjunction with the 2003 films, do you e have an opinion to a reasonable degree of medical 9 certainty as to what would have had occurred had 1o Dr. Smith ordered in 1999 compression spot studies and 11 magnification views? 12 MR. BLACK: Objection. 13 THE VIDEOGRAPHER: Going off record. 14 time on the video monitor is 11:17:51. 15 MR. BLACK: I reiterate my objection to 16 the qualification of the ability of this witness to 17 express opinions in the area of causation based on the 18 growth rate or diagnosability of the cancer because he 19 has admitted during the course of his voir dire on 20 qualifications that he is not engaged in the field of 21 oncology 22 I don't think that there has been any 23 testimony by the witness that he has any familiarity in 24 the area of pathology or that he is a practicing 25 pathologist, and I don't believe that he is qualified APEX Reporting Service 61 to express these opinions. 2 MR. FOSTER: I will note for the record 3 that I think the opinions that I am asking him for are 4 within his range of expertise as an expert in the field s of diagnostic mammography. 6 (Off the record.) 7 THE VIDEOGRAPHER: Back on the record. e The time on the video monitor is 11:18:59. Please 9 begin. io BY MR. FOSTER: 11 Q Doctor, do you recall the question? 12 A Restate it, please. 13 Q Based upon your review of the 1999 films 14 and the 2003 films, do you have an opinion to a 15 reasonable degree of medical certainty as to what would 16 have occurred had Dr. Smith ordered compression spot 17 studies and magnification views in 1999? 18 A Well, I can certainly state what should 19 have happened, and that is that, No. 1, they should 20 have been done, and I think if they were done in 1999, 21 that this would demonstrate that there were numerous 22 calcifications at that time, and that a biopsy should 23 have been performed. 24 If a biopsy were performed at that time, 25 it certainly would have led to a diagnosis at an APEX Reporting Service 62 1 earlier stage for your interval -- I can't say what the 2 stage was in 1999, but certainly the cancer progressed 3 to a stage 3C in 2003. 4 The whole idea is to try and diagnose s these things as early as possible, and I think not to 6 do so placed her at increased risk of harm. 7 Q Doctor, have the opinions that you s expressed here today been to a reasonable degree of 9 medical certainty? 10 A Yes, they are. 11 MR. FOSTER: Thank you, Doctor. That is 12 all I have. THE VIDEOGRAPHER: Going off the 4 The time on the video monitor is 11:20:38. 5 (Discussion off the record.) 6 THE VIDEOGRAPHER: Back on the record. 7 The time on the video monitor 11:28:44. Please begin. e CROSS EXAMINATION 9 BY MR. BLACK: 20 Q Dr. Keohane, I would like to start by 21 reviewing with you the chronology of the events 22 involving your review of the mammograms that were 23 interpreted by my client. 24 It's my understanding from your testimony 25 that when you were initially consulted in this matter APEX Reporting Service 63 i you were provided only copies of the mammographic study 2 of October 1 st of 1999, together with a copy of the 3 impression, dictated impression by Dr. Smith of that 4 study; is that correct? s A I'm not sure, but I think I reviewed the 6 original mammograms, not copies at that time, but it 7 was only the four films and the report. That's all. e Q Did you prepare documentation relating to 9 your findings of the review of those original 1o mammograms at that time? 11 A I made notes. 12 Q Did you bring those notes with you, 13 Doctor? 14 A No, I did not. is Q Do you still have possession of those 16 notes? 17 A No, I do not. 18 Q What happened to those notes? 19 A The notes were incorporated into my final 20 report. 21 Q Do you recall when it was that you first 22 conducted this evaluation of the original study of 23 October 1st, 1999? 24 A Apparently part of 2006, I believe. I 25 might be able to find that information out, if you feel APEX Reporting Service 64 1 it's necessary. 2 Q Well, what I am trying to learn here, 3 Doctor, is as I understand from your earlier testimony, 4 the chronology or sequence of events relating to your s review of this matter is that you received the original 6 mammograms from the October 1999 study, together with the interpretation, and then at some later point you e received either the original or copies of some 9 subsequent mammograms starting in around 2003 on 1o Mrs. Tonui; is that correct? 11 A I remember that it was about a month after 12 I looked at the originals, yes, that I received -- and, 13 again, I'm not sure whether they were copies or 14 originals in the 2003 films, but I believe that they 15 were originals. 16 My recollection is that they were the 17 originals of 2003 and the subsequent reports. 18 Q At the time that you received the second 19 set of mammograms, is that also when you were supplied 20 the additional information that you referenced in your 21 report of March 7th, 2006, being the records of 22 Dr. Sedlack, the medical records of Carlisle Regional 23 Medical Center of August 11th, 2003, and the medical 24 records of Carlisle Regional Medical Center of 25 September 2nd, 2003? APEX Reporting Service 65 1 A That is my recollection, yes. 2 Q Did you perform the review of all that 3 documentation and material at one time, in one setting? 4 A I believe I did, yes. s Q Did you similarly prepare notes based on 6 the mammography studies and the various medical records 7 that you received in that second package? s A No. At that time I just wrote my final 9 report. 10 Q So that as I understand it then, there is ii no documentation which would exist that would show your 12 impressions of your initial interpretation of the 13 October 1999 mammogram other than what is contained in 14 this written report that you have prepared that is 15 dated March 7th, 2006; is that correct? 16 A That's correct. 17 Q Similarly, there are no other documents 18 which would contain the impressions of the other 19 materials that you received and evaluated subsequent to 20 the review of the mammograms of October I st, 1999, 21 other than that contained in your report of March 7th, 22 2006? 23 A Correct. 24 Q Doctor, were you aware that my client, 25 Dr. Smith, underwent a deposition in this case? APEX Reporting Service 66 1 A Yes. 2 Q You did not, in connection with your 3 evaluation of these mammograms or in preparation of 4 your report dated March 7th, 2006, consider the s testimony of Dr. Smith in his deposition, did you? 6 MR. FOSTER: Off camera. 7 THE VIDEOGRAPHER: Going off camera. e time on the video monitor is 11:33:57. 9 MR. FOSTER: I will note my objection to 1o the question and its form because at that time 11 Dr. Smith had not been deposed, and in fact at that 12 time the suit had not been instituted. So that there 13 was no possibility of a review by Dr. Keohane of 14 Dr. Smith's testimony. It didn't exist. 15 MR. BLACK: Okay. Well, you can ask him 16 that on redirect. 17 THE VIDEOGRAPHER: Back on the video. 1a time on the video monitor is 11:34:38. Please begin. 1 g BYMR. BLACK: 20 Q Doctor, my question was, that in 21 connection with your report of March 7th, 2006, you did 22 not review the testimony of my client Dr. Smith or 23 consider the testimony of my client Dr. Smith with 24 respect to his interpretation of the mammograms of 25 October 1 st, 1999, did you? APEX Reporting Service 67 1 A Not at that time. z Q In fact, you never issued any subsequent 3 report to this report of March 7th, 2006, in which you 4 indicated that you had reviewed the testimony of my s client, Dr. Smith, did you? 6 A No. 7 Q Let's discuss a little bit, Doctor, the e subject of calcifications and the interpretation of 9 calcifications in mammography. 10 It is true, is it not, Doctor, that it is 11 important for a radiologist to be able to classify 12 calcifications both as to type and as to distribution 13 pattern when they are interpreting a mammogram? 14 A Correct. 15 Q When I use the word type, when we are 16 discussing the type of calcifications, what we are 17 discussing is the appearance or the morphology of the is calcification; isn't that correct? 19 A That's correct. 20 Q Morphology means what, Doctor? 21 A What the calcifications look like, their 22 size, their shape. 23 Q Radiologists and mammographic radiologists 24 have classified morphology of calcifications into 25 several subtypes, have they not? z sharp. 69 A They have ill-defined margins and not APEX Reporting Service 68 1 A Yes, they have. 2 Q And pleomorphic calcifications which are 3 the type of calcifications that you have testified that 4 you observed on the left breast mammography films of s Mrs. Tonui are one type of classifications of 6 calcifications that are recognized by radiologists, correct? e A That is one type, yes. 9 Q There are other types of calcifications i o that are what are known as punctate calcifications, are 11 they not? 12 A Yes. 13 Q What are punctate calcifications, Doctor? 14 A Dot like. 15 MR. FOSTER: I'm sorry? 16 THE WITNESS: Dot like. 17 BYMR. BLACK: is Q Do those punctate calcifications, are they 1 g generally -- is there a size that is associated with 20 punctate calcifications? 21 A Less than a millimeter. 22 Q There are also what are known as amorphous 23 calcifications? 24 A Yes. 25 Q What are amorphous calcifications? APEX Reporting Service 3 Q Is there a size that is associated with 4 the classification of amorphous calcifications? S A Any size. 6 Q You have already testified for us what 7 pleomorphic calcifications are. Are you familiar with e the phrase heterogeneous calcifications? 9 A Yes. 10 Q What are heterogeneous calcifications? 11 A Varying sizes and shapes, almost like 12 pleomorphic. 13 Q Before we get into the issue of 14 distribution of the calcifications, radiologists and 15 the BIRADS classifications of calcifications have 16 generally divided the types of calcifications into 17 three classifications of concern, have they not? is A Yes, I mentioned that earlier. Definitely 19 benign, definitely malignant, or highly suspicious of 2 o malignancy, and the ones in between that are -- you 21 can't tell. 22 Q Is there a category for definitely 23 malignant? 24 A Not with calcification I don't believe 25 there is. Highly suspicious. APEX Reporting Service 70 1 Q The calcification classifications is, is 2 it not, Doctor, that there are calcifications which by 3 type are considered to be typically benign. 4 A Right. s Q There are calcifications by type that are 6 considered to be of intermediate concern, and there are 7 calcifications by type that have a higher probability e of malignancy; is that correct? 9 A Yes. 10 Q Those are the three categories. 11 A Yes, what I said. 12 Q In fact, calcifications are not evidence 13 of cancer, are they, Doctor? 14 A Of cancer, no. It's an abnormality that 15 should be evaluated and sometimes it is suspicious of 16 cancer. 17 Q In fact, calcifications are considered to 1s be a secondary sign of a potential malignancy; isn't 19 that correct, Doctor? 20 A In most cases, yes. 21 Q Now, are you familiar, Doctor, with the 22 various distribution patterns of calcifications that 23 have been adopted by the American College of 24 Radiologists? 25 A Yes. APEX Reporting Service 71 1 Q What are the various distribution patterns z for calcifications that have been adopted by the 3 American College of Radiology? 4 A They can be ductal. They can be s localized. They can be diffuse. 6 Q Any others? 7 A Can be contained within a mass. e Q When you use the word ductal, what do you 9 mean by, the calcifications can be ductal in i o distribution? 11 A In the breast there is almost like, if you 12 think of it as a tree, with the trunk in the area of 13 the nipple, and then there is a branching out, and if 14 the calcifications have this branching pattern, to them 15 they are usually considered to be ductal type 16 calcifications. 17 Q Are you familiar with the utilization of 18 the phrase segmental distribution? 19 A Yes. 20 Q Is a segmental distribution the same as a 21 ductal distribution? 22 A For the most part, yes. 23 Q You referred to localized distribution of 24 calcifications. What is meant by localized 25 distribution of calcification? APEX Reporting Service 72 1 A Just occurring in one area of the breast. 2 Q Are you familiar with the term or phrase 3 group or clustered microcalcifications? 4 A Yes. s Q Is a localized distribution of 6 calcifications the same as a grouped or clustered 7 distribution of calcifications? 8 A It may be, yes. 9 Q Are you familiar with a linear 1o distribution of calcifications? 11 A Yes. 12 Q What is a linear distribution of 13 calcification? 14 A May be related to ductal, but the is calcifications sort of line up in a line-like pattern. 16 Q Are you familiar with a regional 17 distribution of calcifications? 18 A Yes. 19 Q What is meant by regional distribution of 20 calcifications? 21 A Confined to one region of the breast. 22 Q How if at all does a regional distribution 23 of calcifications differ from a ductal distribution of 24 calcifications? 25 A Ductal may be more diffuse, branching out APEX Reporting Service 73 1 into various areas of the breast. 2 Q Then you used the phrase diffuse 3 distribution. What is a diffuse distribution? 4 A Throughout the entire breast. s Q When a radiologist attempts to determine 6 the significance of the presence of calcifications on a 7 mammographic study, it's true, is it not, Doctor, that s the radiologist should consider the type or the 9 appearance of the calcifications, as well as the i o distribution pattern of the calcification in 11 determining which of the three categories the 12 calcifications fit into, meaning whether they are 13 considered to be typically benign, whether they are 14 considered to be of intermediate concern, or whether 15 they are considered to have a high probability -- 16 higher probability of malignancy; isn't that correct? 17 A Yes. 1e Q It's true, is it not, Doctor, that the 19 radiologist's recommendation with respect to follow-up 20 for the mammographic study is often determined by the 21 categorization or classification as to whether or not 22 these calcifications appear to be typically benign of 23 intermediate concern or higher probability of 24 malignancy? 25 A Correct. APEX Reporting Service 74 1 Q Correct. 2 Now, in Mrs. Tonui's case, the 3 October 1 st, 1999 mammograms that you reviewed, your 4 testimony revealed that you found pleomorphic s calcifications in the upper outer quadrant of her left 6 breast; is that correct? 7 A That's correct. a Q Did you find calcifications in any other 9 areas of Mrs. Tonui's left breast? 10 A She had some I think in the left 11 retroareolar area, and a few which appeared to me to be 12 benign, and she had a few very scattered benign 13 appearing calcifications in her right breast. 14 Q When you use the word, left retroareolar, is what physiologic or what physical aspect of the breast 16 are you referring to? 17 A Right behind the nipple. 1e Q What appearance -- what about the 19 appearance of the calcifications that you found in the 20 left retroareolar area led you to the impression that 21 those calcifications were likely benign? 22 A They were very smooth, round. 23 Q Were those calcifications that were 24 contained in the left retroareolar area of her left 25 breast visible without the use of a magnification APEX Reporting Service 75 i glass? 2 A I think they were. 3 Q What distribution pattern did you find 4 those calcifications to be in? s A Scattered. 6 Q Did you count how many calcifications 7 there were? 8 A No. 9 Q You also indicated that you found evidence 1 o of calcifications on the right breast that also 11 appeared benign to you; is that correct? 12 A That's correct, scattered. 13 Q What was the appearance of those 14 calcifications that led you to the impression that they is were likely benign? 16 A Smooth, round. 17 Q They were also in a scattered 18 distribution? 19 A Yes. 20 Q Did you count those calcifications? 21 A No. 22 Q Were those calcifications visible without 23 the use of a magnification glass? 24 A A few of them were. 25 Q Did you use a magnification glass when you APEX Reporting Service 76 1 viewed the right breast -- 2 A Yes. 3 Q -- mammogram films? 4 A I used the magnification glass on every s mammogram, every view. 6 Q With the use of the magnification glass on 7 the right breast, were you able to locate additional 8 calcifications that were present in the right breast 9 that you weren't able to view without the use of the to magnification glass? 11 A Maybe one or two. 12 Q As you sit here today, you can't recall or 13 you didn't count the number of calcifications that you 14 found in the right breast. is A No. 16 Q Did you count the number of calcifications 17 that you found in the left breast? 18 A I couldn't. There were so many that 19 occurred in one area. 20 Q Explain to me, Doctor, in your parlance, 21 the difference to you of how you would categorize an 22 amorphous calcification versus a pleomorphic 23 calcification? 24 A Pleomorphic to me means different sizes, 25 different shapes. Amorphous is just ill-defined. APEX Reporting Service 77 1 Q Can amorphous calcifications be of 2 different sizes? 3 A Sure. 4 Q And amorphous calcifications can be of s different shapes. 6 A Sure. 7 Q You would agree with me, would you not, 8 that under the BIRADS criteria, amorphous 9 calcifications are considered to be calcifications of to intermediate concern; is that correct? 11 A Well, I think what you have to do though 12 is look at the entire mammogram and not just the 13 calcifications. 14 In this particular case, the 15 calcifications occurred in one -- numerous 16 calcifications, almost innumerable, occurring in one 17 area of the breast, and these calcifications weren't 19 even reported which -- I'm song. What was your 19 question again? 20 Q Well, I do -- I thank you for that, 21 Doctor, but my question really was different than that. 22 My question is, do you acknowledge that 23 under the BIRADS classification system, amorphous 4 calcifications are generally considered to be of 25 intermediate concern? APEX Reporting Service 78 1 A They can be of intermediate or highly 2 suspicious. 3 Q Whereas, under the BIRADS classification 4 system, pleomorphic calcifications are considered to s have a higher probability of malignancy, correct? 6 A That is correct. 7 Q That is regardless of distribution 8 pattern; isn't that correct? 9 A Yes. to Q Now, my understanding from your earlier 11 testimony is that you were provided the originals of 12 the mammograms from the August 1st, 1999 study, and 13 that by virtue of concern that you were going to have 14 to return those mammograms to Mr. Foster for his use, is you elected to make photographs of the mammograms; is 16 that correct? 17 A That's correct. I do that in almost any 18 case that I review. 19 Q You could make copies of the mammographic 20 films, could you not, Doctor? 21 A I don't have the facility to do that at my 22 home. 3 Q Well, copies of mammograms are often 4 obtained in a clinical context, are they not? s A Yeah, you could do that if you are at a APEX Reporting Service 79 i place that does mammograms and has copy film and has a z processor. I have none of those in my home. 3 Q Well, you certainly have access to 4 institutions in the facilities where you could take s films and have them copied, could you not? 6 A I suppose I could take them to a hospital and ask them to copy them. Whether they would or not, e I don't know. 9 Q But in this case you elected not to do 1o that. You elected instead to use a digital camera in 11 order to take a photograph of the original mammographic 12 films; is that correct? 13 A That is correct. 14 Q What kind of camera did you use? 15 A Olympus. 16 Q Was it a -- do you know what the mega 17 pixel rating of the camera was? is A I think eight. 19 Q Do you know what -- 20 A No. I'm song, five. 21 Q Do you know what the comparison is with 22 respect to the mega pixel rating of that particular 23 camera versus the quality of the original mammographic 24 film? Have you ever done that comparison, Doctor? 25 A No, I haven't. APEX Reporting Service 80 1 Q Did the Olympus camera that you used to 2 make these photographs contain a telephoto lens? 3 A Yes, it does. It's a zoom lens. 4 Q Did you utilize a zoom lens in taking any s of these particular photographs? 6 A Yes. For the detail use, I did. 7 Q Do you know to what extent of e magnification you utilized when you used that telephoto 9 lens to hone in on the original mammographic film to io take the blowup or the zoom-in film? 11 A I would suspect two or three times. 12 Q Do you know that or is that just an 13 assumption on your part? 14 A That is an assumption. I didn't measure 15 it, but using a magnifying glass and seeing what the 16 calcifications looked like, and then looking at the -- 17 what I had on the computer screen looked about the 18 same. 19 Q Let's talk a little bit about your 20 magnification glass. What power magnification do you 21 use in your magnification glass when you review 22 mammograms? 23 A I believe it's two and a half. 24 Q Did you adjust the photographs of the 25 mammograms for contrast after you took them? APEX Reporting Service 81 1 A Some of them, yes. 2 Q So as I understand what you did, in 3 addition to utilizing this camera to take pictures of 4 the mammograms, is that once the pictures were obtained s in digital format, you used some kind of photo editing 6 software in order to enhance those photographs; is that 7 correct? 8 A Yes, for demonstration purposes. 9 Q Other than the contrast adjustment, were io there any other adjustments to the photographs that you ii made via the photo editing software? 12 A No. 13 Q The enhanced photographs that you took of 14 the original mammographic studies, you then had those 15 printed out on some type of photographic paper; is that 16 confect? 17 A No. 18 Q Did you have those digital formats taken 19 to a printer or some kind of poster preparer? 20 A No. 21 Q Did you arrange for the preparation of the 22 poster boards that were displayed during your testimony 23 earlier and marked as Exhibits 3A through 31)? 24 A No. 25 Q Do you know how they were prepared? APEX Reporting Service 82 1 A Not specifically, no. 2 Q Did you take the time to review your 3 digital enhanced digital images against the poster 4 boards that were presented as Exhibit 3A through 3D to s determine whether or not they were accurate 6 representations of the photographs that you took? 7 A Yes. 8 Q When did you do that? 9 A At the time before our previous deposition i o that never came off. 11 Q Then you were satisfied that the blowups 12 of those photographs that were prepared on the poster 13 board were accurate reproductions of the actual 14 photographs that you took; is that correct? 15 A They appeared to be so to me. 16 Q I would surmise, however, Doctor, that the 17 poster board presentation of those photographs are many is times the size of the original photographs that you 19 took; is that correct? 20 A Yes. They were made for demonstration 21 purposes. 22 Q Do you know what technology if any was 23 utilized in order to make those photographs, blowup 24 those photographs in size to place them on the poster 2-5 board? APEX Reporting Service 83 A I do not. 2 Q In fact, those photographs that are on the 3 poster boards are many times the size of the actual 4 mammographic films that were taken in this case; isn't s that correct? 6 A Certainly. 7 Q Well, let's discuss a minute your e observations and impressions with regard to the area of 9 asymmetry in the left upper outer quadrant of 1o Mrs. Tonui's breast. 11 It's my understanding, Doctor, that your 12 findings are that there was an area of increased 13 asymmetry in the left upper outer quadrant of the left 14 breast as compared to the right breast; is that 15 correct? 16 A Correct. 17 Q In order to make that determination, you 18 would have had to review all four films from 19 Mrs. Tonui's October 1 st, 1999 study, correct? 20 A That's correct. 21 Q The purpose of that is to insure that what 22 you are labeling as an area of asymmetry actually 23 appears as a 3 D object. Isn't that correct? 24 A That is correct. 25 Q Because you can have areas of what may APEX Reporting Service 84 1 appear to be asymmetry that is visible on one view that 2 is not coordinated with the same area of the breast on 3 the other view; isn't that correct? 4 A In certain cases, yeah. s Q That is why it's important to insure that 6 you can document on both the craniocaudad and the 7 mediolateral oblique view this area of asymmetry, a correct? 9 A Correct. 10 Q Did you measure on the mammograms from 11 October 1 st, 1999, the area of this asymmetry? 12 A Did I measure it? No. 13 Q Why not? 14 A 1 didn't have to. I could see it. It 15 didn't make any difference to me whether it was 3 16 centimeters or 5 centimeters. It was different than 17 the other side. 18 Q You correlated, did you not, Doctor, the 19 imaging findings from October 1 st, 1999 together with 20 the mammography findings of 2003, correct? 21 A That's correct. 22 Q You also looked at the pathology reports 23 from the biopsy and the partial mastectomy, lumpectomy 24 that was completed of Mrs. Tonui, did you not? 25 A I did see the pathology report, yes. APEX Reporting Service 85 1 Q Did you not undertake to correlate the 2 area of asymmetry with ultimately the size of the tumor 3 in this case? 4 A No. s Q You didn't. So you can't tell us as you 6 are sitting here today in those 1999 mammography films 7 how large this area of asymmetry was that you located e on the left upper outer quadrant of her breast. 9 A Well, if you'd like, I can measure it now. o Q Well, did you do that in connection with 1 your review? 12 A No, I did not feel that it was necessary. 13 Q Without taking out a ruler or doing 14 something to, I guess, the enhanced photographs -- 15 A No. I can do it on the originals. 16 Q -- you wouldn't be in a position to tell 17 us right now, would you? 18 A I could make a pretty fair estimate, but I 19 would have to measure it on the original films. 20 Q Now, you talked in your -- 21 A I will be happy to do that, if you want me 22 to. 23 Q Well, I want to know what information you 24 had and what basis you had for the opinions and 25 impressions you've already expressed. So to go back APEX Reporting Service 86 1 and to now look at those things, I don't know is all 2 that helpful for us. 3 You've already told us what the basis was 4 for your opinions, and I am asking you questions to get s at what the grounds and basis are for some of the 6 opinions you expressed. 7 Now, you have also told us that 8 compression is an important element of determining the 9 density of the breast; isn't that correct, Doctor? 10 A Correct. 11 Q When we talk about compression, what we 12 are talking about is, we are talking about the physical 13 force that is applied to the plate surrounding the 14 breast to compress the breast in order to complete the 1 s x-ray study; is that correct? 16 A Correct. 17 Q Did you consider in your analysis of the 1e October Ist, 1999 mammograms, the level of compression 19 that was utilized on the left and right breast for 20 Mrs. Tonui? 21 A The actual measurement in time, is that 22 what you are referring to, or the general overall 23 impression between the two breasts? 24 It appeared that the compression was 25 basically the same, except that there -- in both views, APEX Reporting Service 87 1 there was an area of increased density in the upper 2 outer aspect of the left breast. 3 Q Well, each of the films from that 9 October 1 st, 1999 study would contain information in a s numerical fashion that would indicate the level of 6 compression that was utilized for that particular film; 7 isn't that correct? 8 A It should have been. 9 Q Did you make reference in your evaluation 1o on these mammograms to the level of compression that 11 was utilized in each of the four views of that 12 October 1st, 1999 mammography study? 13 A No. 14 Q It's important, is it not, for the 1 s radiologist to consider in the evaluation of the 16 mammogram whether or not one particular film or one 17 particular view is taken at approximately the same 18 level of compression as the other views; isn't that 19 correct? 20 A It's helpful, yes. 21 Q As you sit here today, you don't know, do 22 you, Doctor, what levels of compression were used for 23 any of the four views from the October 1 st, 1999 study, 24 do you? 25 A No, I don't. APEX Reporting Service 88 1 Q Now, you discussed, Doctor, during your 2 testimony the use of magnification views and the use of 3 spot compression views. 4 Magnification view is what, Doctor? s A It's a radiologic technique where the film 6 is moved away from the breast and a small focal spot is 7 used so that you can magnify one particular area of the 8 breast. 9 Q Magnification views involved the 1o utilization of incrementally increased radiation 11 dosage, do they not, Doctor? 12 A Yes. 13 Q In fact, the dosage of radiation that is 19 utilized for a magnification view is three to four 15 times the dosage of radiation that is utilized in order 16 to obtain a traditional mediolateral oblique or 17 craniocaudal view; isn't that correct? 18 A I think that is about correct, yes. 19 Q You would agree, Doctor, that exposure to 20 radiation has been associated with the development of 21 cancer in women. Don't you acknowledge that? 22 A There is a great deal of controversy over 23 that and whether there is a threshold that has to be 29 exceeded before that kicks in. 25 I don't think anyone knows the answer to APEX Reporting Service 89 1 that, but we do know that if you don't do proper 2 mammograms, that the chances of missing a cancer are -- 3 that certainly will cause problems. 4 Q But it is part of the radiologist's s consideration that the radiologist doesn't want to 6 order unnecessarily additional studies that are going 7 to enhance a woman's exposure to radiation; isn't that e correct? 9 A I think most radiologists would disagree io with that. They order the films that are necessary, or ii suggest the films that are necessary. 12 Q Doctor, I want to ask you if you agree as 13 a general proposition with the following statement. 14 As a guide, a lesion should be visible 15 without a magnifying lens on routine mammograms to have 16 adequate conspicuity for stereotactic guidance. Do you 17 agree with that statement? 18 A No. 19 Q You don't agree with that. 20 A No. Depends on what you are doing the 21 stereotactic biopsy for. 22 Q What that statement is discussing is the 23 ability to locate the area of concern in order to 24 successfully obtain an adequate biopsy study. Isn't s that what that statement is about, Doctor? APEX Reporting Service 90 1 A Yes. 2 Q When I say that, what I mean is, that 3 there has to be an ability of the surgeon who is 9 completing the biopsy to obtain an adequate sample of s the area of concern to insure that the biopsy is going 6 to include the area of the radiologist's concern, 7 correct? 8 A Well, I guess that depends on who is doing 9 the biopsy. I did all my own stereotactic biopsies, 1o and no surgeon involved. So I kind of knew what I was 11 looking for and where it was. 12 Q Well, in a situation where the radiologist 13 is not the one who is going to perform the biopsy, and 14 I think that that was the case in Mrs. Tonui's case; 15 isn't that correct? 16 A I have no idea who did the biopsy. 17 Q You didn't read the results of the -- 18 A I read the results. I don't know who did 19 the biopsy. 20 Q You didn't do the operative report, look 21 at that? 22 A I looked at it. I don't know who did it 23 now, as I sit here now. 29 Q Presuming that someone other than the 25 radiologist actually did the stereotactic biopsy, it APEX Reporting Service 91 1 would be important that that individual be able to z include in the area of the biopsy the area of concern 3 that is expressed by the radiologist; is that correct? 4 A Most certainly you would want to biopsy s the area of concern. 6 Q Because if you don't get the area of the 7 radiologist's concern, you are not getting a true a representative sample of what it is that may be a 9 malignancy; is that correct? 10 A That is correct. 11 Q Would you agree with me, Doctor, that by 12 the time that Mrs. Tonui underwent the follow-up 13 mammogram in July of 2003, that there had been a change 14 in the morphology of the calcifications in the upper 1 s outer quadrant of the left breast? 16 A Change in the morphology? 17 Q (Nods.) 18 A Well, there certainly were more of them. 19 There are some newer type calcifications there, but 2o again, there are many of the same type calcifications 21 that were there in 1999, but there were more of them. 22 They were more numerous and in a larger area. 23 Q Were they more diffuse? 24 A Yes, a larger area. In a regional 25 context. The region had expanded. APEX Reporting Service 92 1 MR. BLACK: Can we go off the video record 2 for a minute? 3 THE VIDEOGRAPHER: Going off video. 1 4 time on the video monitor is 12:09:30. s (Discussion off the record.) 6 THE VIDEOGRAPHER: Back on the video. 7 This concludes Tape 1 in the deposition of Richard a Keohane. 9 (Off the record.) 10 THE VIDEOGRAPHER: The time on the vic 11 monitor is 12:13:54. This begins Tape 2 in the 12 deposition of Richard Keohane, M.D. 13 Please begin. 14 BYMR. BLACK: 15 Q Doctor, I think that we left off and we 16 were going to change the videotape. 17 My question to you was whether or not in 18 your opinion by July of 2003 the calcifications were 19 more diffuse in the left breast than they had been on 20 the prior study in October of 1999. 21 A They appeared to have increased in area. 22 Q I am looking back at my notes from your 23 testimony, and I had recorded that with respect to the 24 July 15th, 2003 film you indicated that you found that 2-5 there were new calcifications; is that correct? APEX Reporting Service 93 1 A Yes. 2 Q That there was change in the appearance of 3 pre-existing calcifications; is that correct? 4 A There were certainly more of them. Their s morphology hadn't changed that much. There was more of 6 them. They covered a wider area. 7 Q Did I miswrite that down then? My s understanding was, your testimony said that there was a 9 change in the appearance of the prior existing 1o calcifications. Did you not see that? 11 A There is an overall change in the whole 12 area. There is more calcifications. They are more 13 pleomorphic than they were before. I am not -- 14 Q Well, explain that to me, Doctor. How can 1s something be more pleomorphic than it was before? 16 A Well, there was just more of them and 17 there is greater variation in size and shape than they 18 were before. 19 Q So is it, by virtue of the fact that there 20 are more calcifications and that those calcifications 21 were also pleomorphic, or is it the fact that you also 22 found changes in calcifications that had existed on the 23 October 1st, 1999 film or a combination of both? 24 A All of the above. 25 Q All of the above. APEX Reporting Service 94 1 A Yes. 2 Q Did you tell me that you also found 3 evidence of mass effect on that July 15th, 2003 film? 4 A That I misspoke. There is an area of -- s that suggested architectural distortion which is more 6 of a puckering, and I did not see a definite mass. 7 Q You said that the area of asymmetric a density had increased; is that correct? 9 A I believe it has, yes. o Q Now, in connection with your evaluation of 11 those films back in July -- the July 2003 films, you 12 reviewed as well the impressions of the radiologist 13 that had interpreted those films? 14 A Yes, I did. 1s Q With respect to the July 9th, 2003 16 interpretation by Dr. Pomeroy, Dr. Pomeroy indicated 17 that he found that the mammograms revealed symmetric 18 and dense fibroglandular thickening, did he not? 19 A That is what he said, yes. 20 Q So you would also disagree with 21 Dr. Pomeroy in that you do not believe that the films 22 from July 9th of 2003 showed symmetric breast film -- 23 or breast tissue bilaterally; is that correct? 24 A That's correct. 25 Q Do you agree, Doctor, that back in 1999, APEX Reporting Service 95 i that the rate of malignancy -- 2 A I'm sorry. 3 Q The rate of determined malignancy -- a A Okay. s Q -- for amorphous clustered calcifications 6 was not well established? 7 A No, that is why we biopsy. a Q There were studies that were being 9 undertaken at that time to determine the percentage of 1o those biopsies which would result in a diagnosis of 11 malignancy versus the percentage of those biopsies 12 which would indicate that those amorphous 13 calcifications were benign. 14 A Yes, ongoing studies at that time. 15 Q Now, I would like to talk to you a little 16 bit, Doctor, about your opinions with respect to the 17 harm attributed to the alleged delay in the diagnosis 18 of Mrs. Tonui's cancer. 19 You have opined that it's your belief that 20 had Mrs. Tonui undergone a biopsy back in 1999, that it 21 would have led to an earlier diagnosis of her cancer; 22 is that correct? 23 A That's correct. 29 Q What basis do you have for that opinion, 25 Doctor? APEX Reporting Service 96 1 A Well, looking at the case as a whole in 2 2003, she had a highly aggressive breast cancer in 3 2003, and in that same area of the breast there were 4 abnormal calcifications in 1999, and in my opinion an s area of increased density. 6 Q What studies or what basis do you have to 7 categorize Mrs. Tonui's breast cancer in 2003 as being e highly aggressive? 9 A Pathologically I don't, other than the 1 o fact that it's a comedocarcinoma, and the fact that it 11 was a 3 C, which just means that it was -- she has an 12 abysmal prognosis. 13 Q Did you review the pathology reports for 14 any of the biopsies that were completed? 15 A Yes. 16 Q Did you review the therapeutic assessment 17 of the ERPR and HER-2/neu evaluation that was done with 1a respect to Mrs. Tonui's cancer? 19 A I'm not sure if I have that or not. 20 Q Are you familiar with the therapeutic z 1 assessment tools that are utilized with respect to the 22 determination of the aggressiveness of particular 23 breast cancers? 24 A Yes. That is not my field at all. z Q So you wouldn't know how to interpret APEX Reporting Service 97 1 that; is that correct? 2 A I can look at it but, no, that is more of 3 the field of the oncologist. 9 Q You wouldn't be able to interpret the s results of the ERPR and/or the HER-2/neu as respects 6 the progression of the cancer as a likeliness of the 7 cancer to grow at a specified rate; is that correct? a A With -- not specifically, but generally, 9 yes, I do. 10 Q The pathology report that was returned 11 with respect to Mrs. Tonui's cancer revealed that her 12 cancer was not of any particular histiopathologic type; 13 isn't that correct? 14 A Well -- 15 Q There wasn't one particular 16 histiopathologic type. 17 A Are you talking about the surgical? 18 Q I am talking about the pathology report 19 from the biopsy, correct. 20 A Well, there were several. There was 21 cryptoform. There could be another type, in situ grade 22 two infiltrating ductal. 23 Q What if any impact on growth rate does the 29 cryptoform type of in situ carcinoma of the breast 2s have? APEX Reporting Service 98 1 A I don't know. I am not an oncologist. 2 Q What impact if any on the growth rate of a 3 cancer does a grade two infiltrating ductal cancer 4 have? 5 A Again, I am not an oncologist. 6 Q What if any impact does a comedo type 7 in situ cancer of the breast have on growth rate? a A Generally comedocarcinomas tends to be 9 more aggressive. 10 Q When you say more aggressive, do you mean 11 that the cancer grows quickly? 12 A Yes. 13 Q It mutates quicker, the cells mutate 14 quicker and it grows quicker; isn't that correct? 15 A Grows quicker. The other two, I'm not -- 16 not my field. 17 Q It can also have a higher rate of 18 metastasis if it's a higher grade more aggressive 19 tumor; isn't that correct? 20 A Generally speaking, yes. 21 Q When we say metastasis, what we are 22 talking about is the spread of the cancer through 23 either the lymphatic system or the blood flow to 29 another area of the body; isn't that correct? 25 A Metastasis generally means that it's APEX Reporting Service 99 1 spread to other areas of the body. Lymph nodes are a 2 separate category. 3 Q In Mrs. Tonui's case, there was extensive 4 metastasis to the lymph nodes that were found in s connection with the lumpectomy that she had performed; 6 isn't that correct? 7 A Yes. I know there were 17. I don't know e how many lymph nodes they took out. I think almost all 9 of the lymph nodes were positive for cancer. 10 Q Dr. Smith recommended in his 11 interpretation of Mrs. Tonui's mammogram back in 12 October of 1999 that she return for repeat evaluation 13 or repeat mammogram in one or two years; isn't that 14 correct? 15 A That is correct. 16 Q You saw no evidence in your evaluation of 17 any of the materials in this case that Mrs. Tonui 18 complied with that recommendation by Dr. Smith, did 19 you, Doctor? 20 A I didn't see anything. 21 Q You testified that you cannot tell as to 22 what stage or to what extent Mrs. Tonui's cancer was 23 present back in October of 1999; isn't that correct 24 A Not without a biopsy, but I think a biopsy 25 should have been done at that time. APEX Reporting Service 100 1 Q Had you reviewed the copies of the 1999 2 mammogram which Mr. Foster asked Dr. Smith to mark 3 during his deposition? 4 A Yes, I did see them. s Q Do you recall when you reviewed those 6 films that Dr. Smith was asked to mark on those films 7 areas of calcifications that he saw both in the right e and left breast? 9 A He was asked to do that, yes. 10 Q Did you review the markings that he made 11 on those films? 12 A I remember looking at them, but they 13 didn't do anything to change my report. 14 Q Dr. Smith did in fact mark numerous areas is of calcification on both the right and left breast on 16 Mrs. Tonui's October 1 st, 1999 study, did he not? 17 A I believe he did. 16 MR. BLACK: That is all of the questions I 19 have. 20 REDIRECT EXAMINATION 21 BYMR. FOSTER 22 Q Doctor, I have a few questions. 23 Counsel asked you whether or not you 24 reviewed Dr. Smith's deposition prior to writing your 25 report dated March 7th, 2006. Do you have a copy of APEX Reporting Service 101 i his deposition there? 2 A Yes, I do. 3 Q What is the date of that deposition? 4 A November 15th, 2006. s Q November 15th, 2006. 6 A (Nods.) 7 Q So would it be fair to say that there was e no deposition for you to have reviewed at the time you 9 issued that report; is that correct? 10 A No. I looked at it subsequently. 11 Q Are you aware of when this litigation was 12 actually -- strike that. 13 Are you aware of when the complaint in 14 this litigation was actually filed? 15 A No. 16 Q When you conducted your initial review, 17 you indicated that you had the original mammograms of 1e 1999 and Dr. Smith's original -- or the copies of his 19 reports with respect to his mammogram; is that correct? 20 A Correct. 21 Q Did you have in your possession the later 22 mammograms that were performed? 23 A Not initially, no. I received them about 24 a month later. 25 Q Or the reports that accompanied those? APEX Reporting Service 102 1 A No. The only thing I had were the four 2 original films from 1999 and the report. 3 Q What did you determine initially from 4 looking at those four original reports? s A Originally when the films were forwarded 6 to me, I was just asked to review them and give my 7 opinion as to how I would interpret those films, which e I did, and I said that I felt that there were 9 abnormalities in the left breast which merited further 1o study and possible biopsy. 11 Q You indicated you did review Dr. Smith's 12 deposition after -- 13 A Subsequently, yes. 14 Q The defense counsel indicated that 1s Dr. Smith did mark calcifications on the copies of the 16 1999 mammograms at that time. 17 A Yes. 1e Q Did he mention in his 1999 report anything 19 about those calcifications that he testified in 2 o November of 2006 were present? 21 A There was no mention in his report of any 22 calcifications. 23 Q As an expert radiologist, is that 24 something that should be included in the report if you 25 see it? APEX Reporting Service 103 1 A Certainly in this case the calcifications z in the left breast certainly should have been mentioned 3 and commented on. 4 Q Did you utilize these blowups that were s made from your photographs in rendering your opinion? 6 A No. 7 Q Did you utilize your photographs e themselves in rendering your opinion? 9 A No. I only used the original films. 10 Q Dr. Smith did indicate in his report that 11 Ida Tonui should have follow-ups; is that correct? 12 A That's correct. 13 Q Is there anything unusual about that 14 recommendation? 15 A No. It's part of the new classification 16 of the Mammography Quality Assurance Act. All 17 radiologists have to make some kind of a recommendation 1e for follow-up. In this case, I think that was wrong. 19 It should not have been a routine -- 20 MR. BLACK: Objection. Off the record. 21 THE VIDEOGRAPHER: Going off record. 22 time on the video monitor is 12:30:55. 23 MR. BLACK: It's clearly beyond the scope 24 of the cross examination, and clearly imputes new 25 criticisms on the standard of care which are outside APEX Reporting Service 104 1 the confines of the expert report produced, and I 2 object to the testimony and the expression of opinion 3 on those areas. 4 MR. FOSTER: I am just having him commen s on the recommendation that you elicited on cross. 6 MR. BLACK: I understand that, but he is 7 voluntarily invoking into his testimony an additional a opinion that has not been disclosed as part of the 9 expert disclosure, and I don't think that it's 1o permissible under the pertinent Pennsylvania Rules of 11 Civil Procedure with respect to expert discovery, 12 Rule 4007. 13 MR. FOSTER: Okay. Back on camera. 14 THE VIDEOGRAPHER: Back on the record. 15 The time on the video monitor is 12:31:57. Please 16 begin. 17 BYMR. FOSTER: 18 Q Doctor, was there anything unusual about a 19 recommendation for follow-up? 20 A No. All radiologist's that read 21 mammograms have to make a recommendation for follow-ul 22 MR. FOSTER: That is all I have. Thank 2 3 you. 24 RECROSS EXAMINATION 2-5 BYMR. BLACK: APEX Reporting Service 105 1 Q Doctor, my understanding from your 2 testimony at the very beginning of this deposition is 3 that you have served as an expert witness in several 4 cases throughout the Commonwealth of Pennsylvania; is s that correct? 6 A That's correct. 7 Q Doctor, I presume that in connection with e the evaluation of those cases, you have become accustom 9 to reviewing deposition transcripts of either the lo defendant in the case or the plaintiff in the case that i i bears on the liability of the issue in the litigation; 12 is that correct? 13 A Yes. 14 Q So you are aware then in typical 15 litigation, professional liability litigation, there is 16 usually a deposition transcript that is reviewed of the 17 physician whose care is in question, and that 19 oftentimes it is important to the overall evaluation of 19 the case to be able to consider and review the 2o deposition testimony of the defendant doctor, correct? ea A Correct. 22 Q In your report back in March of 2006, you 23 didn't make any reference to the fact that you haven't 24 had the opportunity to review any deposition of s Dr. Smith, did you? APEX Reporting Service 106 1 A No, because it was -- the report was 2 written before the deposition. 3 Q You didn't in any way indicate in your 4 letter that you would like to have the opportunity to s review your findings and confirm your findings once 6 Dr. Smith's deposition was taken and you had the 7 opportunity to review it, did you? a A I did not put that in the report, no. 9 Q Now, is it your testimony, Doctor, that if 1o you were the interpreting physician of a mammogram and 11 you observed calcifications which you believe fell into 12 the BIRADS category of probably benign or benign, 13 typically benign, that you would include those in your 14 dictated impression of the mammography? 15 A If I thought that -- yes, I would. 16 Q If you believed that the calcifications 17 that you viewed would fall into the BIRADS category of 1e typically benign, you would include reference in your 19 dictated report of the presence of those 20 calcifications? 21 A Yes. 22 MR. BLACK: That is all. Thank you, 23 Doctor. 24 MR. FOSTER: Thank you. 25 THE VIDEOGRAPHER: The time on the N APEX Reporting Service 107 1 monitor is 12:34:38. 2 This will conclude today's deposition and 3 Tape 2 of the deposition of Richard Keohane. 4 (The deposition was concluded at 12:34 p.m.) 5 # # # 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APEX Reporting Service 108 1 CERTIFICATE 2 3 I, Sharon L. Dougherty, a Notary Public for the 4 Commonwealth of Pennsylvania, do hereby certify: 5 That the witness named in the deposition, prior 6 to being examined, was by me first duly sworn or 7 affirmed; 8 That said deposition was taken before me at the 9 time and place herein set forth, and was taken down by lo me in stenotype and thereafter transcribed under my 11 direction and supervision; 12 That said deposition is a true record of the 13 testimony given by the witness and of all objections 14 made at the time of the examination. 15 I further certify that I am neither counsel for 16 nor related to any party to said action, nor in any way.. 17 interested in the outco ,thereo. r 18 ? 19 20 "Ou 21 22 23 24 25 APEX Reporting Service RID-O OF THE PROMO? 'fARY 2H9 APR - I PM 3: 03 CUM FI.MD NTY PEA ca" I Ir PHILIP D. NEW, Executor of the IN THE COURT OF COMMON PLEAS OF IDA N. TONUI, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. NO. 05-3875 CIVIL HENRY K. SMITH, D.O., a/k/a HENRY K. SMITH, M.D. and SMITH RADIOLOGY, INC., Defendants VERDICT QUESTION NO. I Do you find that Henry K. Smith, D.O. was negligent? Yes No X- If you answered Question No. 1 "Yes," proceed to Question No. 2. If you answered "No," your verdict is for the defendant and plaintiff cannot recover and you should return to the Courtroom. QUESTION NO. 2: Do you find that the negligence of Henry K. Smith, D.O. was a factual cause in bringing about harm to Ida N. Tonui? Yes No If you answered Question No. 2 "Yes," proceed to Question No. 3. If you answered "No," your verdict is for the defendant and plaintiff cannot recover and you should return to the Courtroom. 1- - r QUESTION NO. 3: State the amount of damages awarded under the Wrongful Death Act, including: a. All sums that the decedent would have contributed to the support of her family between the time of her death and the end of her life expectancy. $ b. An amount that will fairly and adequately compensate her family for the monetary value of the services, society, and comfort that she would have given to her family had she lived, including such elements as work around the home, provision of physical comforts and services, and provision of society and comfort. $ Total damages awarded under the Wrongful Death Act: $ QUESTION NO. 4: State the amount of damages awarded under the Survival Act, including: a. The value of the net amount that the decedent would have earned between the time of her death and the end of her life expectancy. Again, net earnings for this period are determined as follows: you must first calculate the total amount of the decedent's gross earnings between today and the end of her life expectancy; from this amount you must deduct the probable cost of her necessary and economical living expenses required to sustain life during this period (together with the amount of monetary contributions she would have made to her family during this period (which you have already awarded under the Wrongful Death Act)). $ b. An amount that will fairly and adequately compensate for the mental and physical pain, suffering, and loss of enjoyment of life's pleasures that the decedent endured from the moment of her injury to the moment of her death as a result of decedent's negligence. $ Total damages awarded under the Survival Act: $ QUESTION NO. 5: TOTAL DAMAGES: $ You should return to the Courtroom to render your verdict. Date: Z/6 /9, 0 q Foreperson: d In the Court of Commons Pleas of Cumberland County, PA., PHILIP D. NEW, AS EXECUTOR OF N. TONUI Docket No. 2005-3875 Judge: HESS --vs- HENRY K. SMITH, D.O. AND SMITH r " Attorney: D(xV+d ??'Z?,;•+-C?? ??• Attorney: 13 - (_r Date: 3 JURORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 1 INIININOINIIININI APR13-26 BIASUCCI, PETER A 2 INIIiNNNIMNNnum APR1342 DUNN, DAVID E 3 INIII[fI(NmmouN APR13-301 SAUERWINE, WILLIAM C P-OZ 4 ImmrNII min APR13-112 SCHAEFFER, JOSEPH J 5 INoNIII momoN APR13-277 STEACH, BRANDON L 6 IIIIIsIImoIN en APR13-348 WILLIAMS, JENNIFER A 7 iina INImII min APR13-238 WEAVER, GARY L Dft 8 INIImmIINImin APR13-258 HESS, DALE E 9 ININIINNMMMINNNNI APR13-210 ROTZ, EDWIN A 10 1102IIIN MMINNI APR13-235 SIMPSON, IRENE E 11 I III NI III O INI N O R APR13-2 ROBERTS,'' LAURIE C 12 INnINNNIINI mom APR13-13 RICCARDO, KAREN A 13 INININIIIINIIMmon APR13-243 SHELLER, JOSHUA M 3 14 INIIINNmmIIINIINNI APR13-30 KEEBAUGH, DAVID L 15 INIINNI MOMNIII APR13-75 RICHWINE, MARY M 16 ImaIIpNNrummiNI APR13-107 GINGRICH'e JOANNE L 17 immumNINI ne APR13-314 BANEY, JEREMY R 18 ININIII INIIINIIINIne APR13-290 CHANDRA,I RENU S 19 ININI0IIIIINIMMIINI APR13-73 CROWL, JOAN L 20INNNNI?III APR13-330 RILAND, B __ _ _ _ 21 INIIImmaINMNINIINN APR13-104 CARBAUGH, DOUGLAS R 22 INIIIIIIMIINImIIININI APR13-217 MCKENDRICK, ROBERT M In the Court of Commons Pleas 0l of Cumberland County, PA., PHILIP D. NEW, AS EXECUTOR OF N. TONUI Docket No. 2005-3875 Judge: HESS -- V S ---- HENRY K. SMITH, D.O. AND SMITH Attorney: Attorney: Date: JURORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 23 lams min APR13-68 YENTZER„ JR WILLIAM F p?( J 24 IIi1M?1N?M11? APR13-180 BRUNER, ADRIENNE L 25 Immmummmu APR13-81 BEAR, JESSICA L 26 1mmenemon APR13-12 JAYCOX, SUSAN M 27 moNNmMull APR13-59 ANNAB, ANNE S 28 ImmmIIMmmin APR13-308 MARTIN, DOLORES J 9 INpIIEMOMMIN APR13-106 LONG, LYNDA A 30 INNE>NNNMIN APR13-61 GUTSHALL, CAROLYN M 31 I 1Ieommomil APR13-260 CONTINO, JANICE M 32 inim mmmuou APR13-233 GARDNER, ALICE R 33 impommoson APR13-83 PATTERSON, CLIFFORD 34 1ANmos/MhI8 APR13-196 FREY, TARA S 35 immmomimmun APR13-143 MOORE, W F 36 37 38 39 40 41 42 43 44 r ?^+ PHILLIP D. NEW, as Executor of the ESTATE OF IDA N. TONUI, Plaintiff DOCUMENT NO.: 05-3875 V. HENRY K. SMITH, D.O., A/ K/ A HENRY K. SMITH, M.D., AND SMITH RADIOLOGY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants PRAECIPE TO REDUCE TO JUDGMENT TO THE PROTHONOTARY: No post trial motion having been filed, please enter judgment on the verdict of the jury dated April 16, 2009 in favor of Defendants, Henry K. Smith, D.O., a/k/a Henry K. Smith, M.D. and Smith Radiology, Inc. Respectfully submitted, THE CHARTWELL LAW OFFICES, LLP By: B. Cra ' ?-- Atto y I.D. # 3681 1017 Mumma Road; Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendants, Henry K Smith, D. O., a/k/a/ Henry K. Smith, M.D. and Smith Radiology, Inc. Date: 5-67-0 ?/ - ft.' CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe to Reduce to Judgment of Defendants upon the person(s) and in the mariner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by hand delivery, addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 23151 Lemoyne, PA 17043-0222 (Counsel for Plaintiff) By: B. Crai lac , squire Attorney I.D. # 36818 1017 Mumma Road; Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendants, Henry K. Smith, D. 0., a/kla/Henry K. Smith, M.D. and Smith Radiology, Inc. Date: S - D ,AW ?. FILED-OFFICE OF THE PROTHONOTARY 2009 MAY -7 PM 3: 38 CUMRk tt??:; db WUNTY PENNSYLVANIA -+14.oo PO ATN e34- U48qs IJo IJc? pauw