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Home My WebLink About05-6320 . . . . '. VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D, Brandes, Esquire Theresa L. Giannone, Esquire Attorney l.D, Nos,: 26875/59769/77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 A TTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No (J.{ b3.;20 CwJ Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital 503 North 21" Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY individually and/or doing business as Holy Spirit Hospital 503 North 21" Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL 503 North 21" Street Camp Hill, PA 17011 -and. . . . ... CHARLES D EVANCHO, M.D c/o Holy Spirit Hospital North 21 ,t Street Camp Hill, PA l701l -and- RICHARD J DITLOW, JR, M.D. 775 S, Arlington Avenue Harrisburg, P A 17109 -and- OAKWOOD CENTER RADIATION ONCOLOGY 880 Centry Drive Mechanicsburg, PA 17055 Defendants PRAECIPE TO ISSUE WRITS OF SUMMONS TO THE PROTHONOTARY Kindly issue Writs of Summons against the above named Defendants, Respectfully submitted, NDES &){LINE, P.e. '/~ Peter M. Villari, Esq, Paul D. Brandes, Esq, Theresa L. Giannone, Esq. Attorneys for Plaintiffs Dated: );.- U') - uS ,. ,I '-.,.; , , , j',.',' C'--' ,._---~ - , .. '. t. VILLARI, BRANDES & KLINE, P.C. By: Peter M, Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney LD, Nos,: 26875, 59769, 77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 Attorneys for PlaintijJ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased PlaintijJs, vs. HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY individually and/or doing business as Holy Spirit Hospital, et, at. Defendants Docket No. JURY TRIAL DEMANDED JURY DEMAND Plaintiff hereby demands a trial by jury as to all issues, Respectfully submitted, VILLARI, BRANDES & KL E, P.e. (/ By:", Peter M, Villari, Esquire Paul D, Brandes, Esquire Theresa L. Giannone, Esquire ~ ,.. ~ ~ " \, ~ ~\~ _c ~ ' . ~ ~ . \ ~ ~ , ~ ~ \ <:::'" --- '0 ..J ""--. ~ ~: 10 "" . .' ....... c. ~ ~ q ~ "u C\ ~ c- --..------- '\ -' (J VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney 1.D, Nos,: 26875/59769/77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No, rJ5'- t::0,;Ld ~ Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital 503 North 21" Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY individually and/or doing business as Holy Spirit Hospital 503 North 21" Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL 503 North 21" Street Camp Hill, PA 17011 -and- , 1'~ ,.\ \ c , , t'.'; " c." --- ~ CHARLES D. EVANCHO, M.D c/o Holy Spirit Hospital North 21" Street Camp Hill, PA 17011 -and- RICHARD 1. DITLOW, JR, M.D. 775 S Arlington Avenue Harrisburg, PA 17109 -and- OAKWOOD CENTER RADIATION ONCOLOGY 880 Centry Drive Mechanicsburg, P A 17055 Defendants WRIT OF SUMMONS TO ABOVE NAMED THE DEFENDANTS YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOu. ~ Date I), - l' - C> ') Counsellor Plaintiff' VILLARI, BRANDES & KLINE, P,C By Peter M. Villari, Esquire, #26875 Paul D, Brandes, Esquire, # 59769 Theresa L. Giannone, Esquire, #77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (1.d~1 ;~ Prothonotary : ) BY,=,. : ..,.. d /~ci;7J . eputy .' ( , JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased 36 Jefferson Street Duncannon, PA 17020 Plaintiffs, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6320 CIVIL TERM MEDICAL MALPRACTICE HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit Hospital of the Sisters of Christian JURY TRIAL DEMANDED Charity and/or doing business as Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY individually and/or doing business as Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL 503 North 21st Street Camp Hill, PA 17011 -and- CHARLES D. EVANCHO, M.D, c/o Holy Spirit Hospital North 21st Street Camp Hill, PA 17011 -and- RICHARD J. DITLOW, JR., M.D. 775 S, Arlington Avenue Harrisburg, PA 17109 -and- OAKWOOD CENTER RADIATION ONCOLOGY 880 Centry Drive Mechanicsburg, PA 17055 Defendants. .. ~ ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Wilbur McCoy Otto on behalf of Defendants, Holy Spirit Health System, Holy Spirit Hospital of the Sisters of Christian Charity, and Holy Spirit Hospital with respect to the above captioned matter. Respectfully submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. Date: December 16,2005 By: ilbur McCoy Otto, Esquire Supreme Court, LD, #01524 Two PPG Place, Suite 400 Pittsburgh, PA 15222 Phone: (412) 281-7272 Counsel to Defendants Holy Spirit Health System, Holy Spirit Hospital of the Sisters of Christian Charity, and Holy Spirit HO!>pital 2 .~ CERTIFICATE OF SERVICE I, Wilber McCoy Otto, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe for Appearance has been served this ~ day of December, 2005, by V,S, Mail, postage prepaid, upon counsel of record, DICKIE, McCAMEY & CHILCOTE, p,c. rC ~ (/--Y By ilbur McCoy Otto, Esquire Attorney for the Defendants, Holy Spirit Health System. Holy Spirit Hospital of the Sisters of Christian Charity and Holy Spirit Hospital 3 C) C~ ,.., Co::) (:::;> \:...n o P'I '" r-.) o Q, ---t ::r::n :'np-_ ~':-J1Jj "J',.' .,:,~)C) J "T, -n C~(') /"'rn , . --~I ;~:j :< :3 -"'" ( ,) u:> LAURALEE B, BAKER. ESQUIRE Pa, Supreme Court LD, No, 58874 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: [717] 975-8114 Direct Dial: (717) 760-7504 Fax: [717] 975-8124 E-Mail: lbaker@margolisedelstein.com Attorneys for Defendants: CHARLES D, EVANCHO, M,D, JOHN F. KOELSCH. Individually and as Administrator of the ESTATE OF KRISTY KOELSCH. Deceased. Plaintiff, : IN THE COURT OF COMMON PLEAS : ClJMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs, : DOCKET NO. 05-6320 HOLY SPIRIT HEALTH SYSTEM, Individually and/or doing business as HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY. Individually and/or doing business as HOLY SPIRIT HOSPITAL. and HOLY SPIRIT HOSPITAL, and CHARLES D. EVANCHO, M.D., and RICHARD J, DITLOW, JR., M,D., and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants. : JURY TRIAL DEMANDED PRAECIPE FOR RULE '(0 FILE COMPLAINT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue Rule upon Plaintiff to file a Complaint within twenty (20) days from service hereof or suffer judgment non pros, MARGOLIS EDELSTEIN Date: '2-h?>\ uS- , \ By: A RALEE B, BAKER, ESQUIRE P ,Attorney LD, No, 58874 Attorney for Defendant, CHARLES D, EVANCHO, M,D, . RULE TO THE PLAINTIFF: You are hereby ordered and directed to file your Complaint against the Defendant in the above-captioned matter within twenty (20) days of service of this Rule against you or suffer judgment non pros, Dated: U f. C ;)p~ 1 - 2 - o c_~ .., f::':.:1< <::;~-:> Cfl C r"-1 C> ,......, OJ C) -on --I ::J::::" "}fi ., r;,;) r.) tJi ,,2 ,~':; /,)(;-'1 ::-i.~ ..... LAURALEE B. BAKER. ESQUIRE Pa, Supreme Court tD, No, 58874 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: [7171975-8114 Direct Dial: (717) 760-7504 Fax: [717)975-8124 E-Mail: lbaker@margolisedelstein.com Attorneys for Defendants: CHARLES D, EVANCHO, M,D. JOHN F, KOELSCH, Individually and as Administrator of the ESTATE OF KRISTY KOELSCH, Deceased, Plaintiff. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY. PENNSYL VANIA : CIVIL ACTION - LAW vs. : DOCKET NO. 05-6320 HOLY SPIRIT HEALTH SYSTEM. Individually and/or doing business as HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY and/or doing business as HOLY SPIRIT HOSPITAL. and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Individually and/or doing business as HOLY SPIRIT HOSPITAL. and HOLY SPIRIT HOSPITAL, and CHARLES D, EVANCHO, M.D" and RICHARD J, DITLOW, JR. M.D,. and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants. : JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY. PENNSYLVANIA: Kindly enter my appearance on behalf of Defendant, Charles D, Evancho. M.D,. in the above-captioned matter. Respectfully submitted, Date: I2 \1.3 \ 16 \ \ MA By: L P ,Attorney 1.0. No. 58874 Attorney for Defendant, CHARLES D. EVANCHO. M,D, 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 , CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE TO ENTER APPEARANCE OF DEFENDANT. CHARLES D. EVANCHO, M,D,. on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the~hlday of:k4p~<--, 2005. and addressed as follows: Peter M, Villari. Esquire Paul D, Brandes, Esquire Theresa 1. Giannone. Esquire Villari, Brandes & Kline, p,c. 8 Tower Bridge. Suite 400 161 Washington Street Conshohocken,PA 19428 Wilbur McCoy Otto, Esquire Dickie. McCamey & Chilcote, p,c. Two PPG Place. Suite 400 Pittsburgh. PA 15222-5402 Michael Mongiello. Esquire Foulkrod Ellis, p,c. 2010 Market Street Camp Hill. PA 17011 MARGOLIS EDELSTEIN "..-~_. By: v / oAnn E. Nelson, Secretary (; r-' 0 c~~') C', r,'~~) -n ,p c? \';,'\ -c-) r",~ C::J , -,-'" j^<) t'>-) U , . . LAURALEE B, BAKER, ESQUIRE Pa, Supreme Court LD, No, 58874 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: [717] 975-8114 Direct Dial: (717) 760.7504 Fax: \717] 975.8124 E-Mail: Ihaker@margolisedelstein.com Attorneys for Defendants: CHARLES D, EVANCHO. M,D, : ]N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW JOHN F. KOELSCH, Individually and as Administrator of the ESTATE OF KRISTY KOELSCH. Deceased. Plaintiff, vs. : DOCKET NO, 05-6320 HOLY SPIRIT HEALTH SYSTEM, Individually and/or doing business as HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Individually and/or doing business as HOLY SPIRIT HOSPITAL. and HOLY SPIRIT HOSPITAL, and CHARLES D, EVANCHO, M,D., and RICHARD J. DITLOW. JR, M,D., and OAKWOOD CENTER RADIATION ONCOLOGY. Defendants, : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYL VANIA: Kind]y file of record the attached Certificate of Service of the which was entered by the Prothonotary on December 28, 2006, and served on the date reflected in the attached Certificate of Service, . . Date: Respectfully submitted, MARGOLIS EDELSTEIN tz/z'l ;; > , / By: L U LEE B. BAKER, ESQUIRE PA Attorney LD. #58874 Attorneys for Defendant, CHARLES D, EVANCHO. M,D, 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 - 2 - . CERTIFICATE OF SERVICE . I HEREBY CERTIFY that I served a true and correct copy of the foregoing RULE TO FILE COMPLAINT on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid. on the.i}?qlday of ,~G.~.e=~-(.;';W05, and addressed as follows: Peter M, Villari. Esquire Paul D, Brandes. Esquire Theresa L Giannone, Esquire Villari, Brandes & Kline, p,c. 8 Tower Bridge, Suite 400 161 Washington Street Conshohock8n. PA 19428 Wilbur McCoy Otto, Esquire Dickie, McCarney & Chilcote. p,c. Two PPG Place, Suite 400 Pittsburgh. PA 15222-5402 Michael Mongiello, Esquire Foulkrod Ellis, p,c. 2010 Market Street Camp Hill. PA 17011 Craig A, Stone, Esquire Marshall. Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road. Suite B Harrisburg, PA 17112 --.-/ . CERTIFICATE OF SERVICE . I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE TO FILE OF RECORD THE CERTIFICATE OF SERVICE OF THE RULE TO FILE COMPLAINT on all counsel of record by placing the same in the United States mail at Camp Hill. Pennsylvania, first-class postage prepaid. on the :~/4'/day of ^ /7(~J-?'.~<-/, 2005, and addressed as follows: Peter M, Villari. Esqulre Paul D, Brandes. Esquire Theresa 1. Giannone. Esquire Villari, Brandes & Kline, p,c. 8 Tower Bridge. Suite 400 161 Washington Street Conshohocken, PA 19428 Wilbur McCoy Otto, Esquire Dickie, McCamey & Chilcote, p,c. Two PPG Place, Suite 400 Pittsburgh. PA 15222-5402 Michael Mongiello, Esquire Foulkrod Ellis. p,c. 2010 Market Street Camp Hill. PA 17011 Craig A. Stone, Esquire Marshall, Dennehey. Warner, Coleman & Goggin 4200 Crums Mill Road. Suite B Harrisburg. PA 17112 ;"RGOIJS EDELS~ ", ~ 2~ oAnn E. Nelson. Secretary c.' C '"'> C:':) t:;') w..... o " :;:! (1171 ,-- -~] \,.Il ,;,. ~; wo,,. ~ I GO ;".'::; -:1" :,-) ., c..r: :.~ ( JOHN F, KOELSCH. individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased, Plaintiff v, HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; and HOLY SPIRIT HOSPITAL; CHARLES D, EVANCHO, MoO,; RICHARD J, DITLOW, JR,. M,D, and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants ORIGINAL IN THE coum OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NIO, 05-6320 MEDICAL PROFESSIONAL U;A;BILfiy c' (,~:... ACTION 'z_ CIVIL ACTION - LAW. \ (Ii ~:.. - JURY TRIAL DEMANDED ENTRY OF APPEARANCE -;" x- o .',:J '-'" Kindly enter our appearance on behalf of Defendant, Oakwood Center Radiation Oncology, in the above-captioned, By: Dated:~ Respectfully submitted, McKissock & Holiman, P,C, ~-:;-----; , :b<4u;le 9,: 36818 L ..n M, Burnette, Esquire LD, No,: 92412 2040 Linglestowll Road Suite 302 Harrisburg, PA 117110 (717) 540-3400 --- -~-., Attorneys for Defendant, Oakwood Cent4er Radiation Oncology ( 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 posta!~e prepaid, addressed as follows: Peter M, Villari, Esquire Villari, Brandes & KlinF), P,C, 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 ( Counsel for Plaintiff) Holy Spirit Heaith System Holy Spirit Hospital of the Sisters of Christian Charity Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011 Charles 0, Evancho, M,O, c/o Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011 . Dated:~ Richard J, Ditlow, Jr" MD, 775 S, Arlington Avenue Harrisburg, PA 17109 McKissock & Hoffman, P,C, By: c-::;'=y~_ B, C~ Black, Esquire LD,. 0,: 3:6818 Lauren M, Burnette, Esquire 1.0, No,: 132412 2040 Linglestown Road Suite 302 Harrisbur(), PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Cent4er Radiation Oncology , " C) -0 c_ ..,.!- 1 <.;;. c-:. DICKIE, MCCAMEY & CHILCOTE, P.C. BY: FRANCIS E. MARSHALL, JR., ESQUIRE ATTORNEY ID. NO. 27594 BY: THOMAS M. CHAIRS, ESQUIRE ATTORNEY ID. NO. 78565 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717) 731-4800 (Tel) (717) 731-4803 (Fax) JOHN F. KOELSCH, Individually and as Administrator of the ESTATE ofKRISTY KOELSCH, Deceased, Plaintiff v HOLY SPIRIT HEALTH SYSTEM, HOSPIT AL, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, HOLY SPIRIT HOSPITAL, CHARLES D. EVANCHO, M.D., RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants ATTORNEY FOR DEFENDANTS HOLY SPIRIT HEALTH SYSTEM, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY AND HOLY SPIRIT HOSPITAL : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : NO. 05-6320 : CIVIL ACTION - : MEDICAL PROFESSIONAL : LIABILITY ACTION : JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Francis E, Marshall, Jr., Esquire and Thomas M, Chairs, Esquire on behalf of Defendants, Holy Spirit Health System, Holy Spirit Hospital ofthe Sisters of Christian Charity and Holy Spirit Hospital with respect to the above-captioned matter. Respectfully submitted, Date: January 10, 2006 DICKIE, MCCAMEY & CHILCOTE, P.c. /- ~. ./&/! /1. //-'7'._) / (: ,. ~ .. By: I i\Lj <----- FrancIs E. Marshall, Jr., Esquire Supreme Court L D, #27594 Thomas M, Chairs, Esquire Supreme Court I.D, #78565 1200 Camp Hill Bypass Suite 205 CampHiII,PA 17011-3700 (717) 731-4800 Attorney for Defendants, Holy Spirit Health System, Holy Spirit Hospital of the Sisters of Christian Charity and Holy Spirit Hospital CERTIFICATE OF SERVICE AND NOW, this 10th day of January, 2006, I, Thomas M, Chairs, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record or parties involved by depositing, or causing to be deposited, same in the U.S, mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Peter M, Villari, Esquire Paul D, Brandes, Esquire Theresa Giannone, Esquire VILLARI, BRANDES & KLINE, p,c. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (Counsel for Plaintiff) Michael C. Mongiello, Esquire FOULKROD ELLIS 2010 Market Street Camp Hill, PA 17011 (Counsel for Richard J. Dillow, Jr" MD)) Lauralee B. Baker, Esquire MARGOLIS EDELSTEIN P,O, Box 932 Harrisburg, PA 17108-0932 (Counsel for Charles D, Evancho, MD) Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PAl 711 0 (Counselfor Oakwood Center Radiation Oncology) , /// .-.,.L--,",,-. /., <- <::' .-' {:,~-' ",C,;J c)'.' (') ~\ \ .A ~-:(_"'n \ ,'f':;" <- .:-- - - -::' r:..: (n :::..;,::. c:' , , FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, PA 17011 Phone: [717] 909-7006 Fax: [7171909-6955 JOHN F, KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased, Plaintiffs Attorney for Defendant: Richard J, Ditlow. Jr.. M,D, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 05-6320 HOLY SPIRIT HEALTH SYSTEM, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, HOL Y SPIRIT HOSPITAL, CHARLES D, EVANCHO, M,D" RICHARD J, DITLOW, JR., M,D, and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO: Prothonotary Kindly enter our appearance as counsel on behalf of Defendant, Richard J, Ditlow, Jr., M,D" in the above-captioned matter, FOULKROD ELLIS PROFESSIONAL CORPORATION By: 4rC &~tikrOd' Esquire Attorney 1.D, No, 77394 Michael C. Mongiello, Esquire Attorney 1.D, No, 87532 Date: January (() ,2006 , ~ CERTIFICATE OF SFRVWF I HEREBY CERTIFY that +ec::..d correct copy ofthe foregoing document was served upon all counsel of record this I a day of January, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Peter M, Villari, Esquire Villari, Brandes & Kline, p,c. 8 Tower Bridge - Suite 400 161 Washington Street Conshohocken, P A 19428 Attorney for Plaintiffs Wilbur McCoy Otto, Esquire Dickie McCamey & Chilcote, p,c. 400 Two PPG Place th 4 Avenue Pittsburgh,PA 15222-5402 Attorney for Holy Spirit Health System, Holy Spirit Hospital of the Sisters of Christian Charity and Holy Spirit Hospital Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Charles D, Evancho, MD, Bryan Craig Black, Esquire McKissock & Hoffman, P,C, 2040 Linglestown Road - Suite 302 Harrisburg, P A 17110 Attorney for Oakwood Center Radiation Oncology FOULKROD ELLIS PROFESSIONAL CORPORATION {. By: Cheryl A. ~-- '-) "11 ---.1 -,- n1 r....J (,.."'-' CASE NO: 2005-06320 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HOLY SPIRIT HOSP SIS CHRISTIAN CHARITY DBA HOLY SPIRIT HOSPI the DEFENDANT , at 1500:00 HOURS, on the 14th day of December, 2005 at 210 SENATE AVENUE CAMP HILL, PA 17011 3RD FLOOR by handing to TERESA PLESCE, RISK MANAGEMENT ADULT IN CHARGE 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 .00 ,00 10,00 ,00 16,00 me this J.o.j~ Sworn and Subscribed to before day of A,D, So Answers: ~.', ,;" /,/<--::? . """,'i;.(,;,;~~. ./ ~ l' ....v......~...... J,~- R, Thomas Kline 01/05/2006 VILLARI BRANDES KLINE By: ~v~ Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2005-06320 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY the DEFENDANT , at 1500:00 HOURS, on the 14th day of December, 2005 at 210 SENATE AVENUE 3RD FLOOR CAMP HILL, PA 17011 by handing to TERESA PLESCE, RISK MANAGEMENT ADULT IN CHARGE 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: ~ ,#';.....!/ -. :/>' 'orf,:;.",,~ d '7 ";.1""".-,,, "/ 6,00 ,00 ,00 10,00 .00 16,00 R, Thomas Kline me this }.'fe.. day of 01/05/2006 VILLARI BRANDES KLINE "t~ T<<:~ Deputy Sheri f By: Sworn and Subscribed to before A.D. SHERIFF'S RETURN ~ OUT OF COUNTY CASE NO: 2005~06320 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL R, Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: DITLOW RICHARD J JR MD but was unable to locate Him in his bailiwick, He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 5th , 2006 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin County 6.00 9.00 10.00 35,25 ,00 60,25 01/05/2006 VILLARI BRANDES So answers: '/ - - .-----.- "",,-.'"'c~ C>-;--' R, Thomas Kline Sheriff of Cumberland County KLINE Sworn and subscribed to before me this "tyEe day OfC}m, dJ()("!~D'~, , (,~ SHERIFF'S RETURN ~ REGULAR CASE NO: 2005~06320 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL WILLIAM CLINE Sheriff or Deputy Sheriff of says, the within WRIT OF SUMMONS Cumberland County, Pennsylvania, who being duly sworn according to law, HOLY SPIRIT HEALTH SYSTEM was served upon the DEFENDANT , at 1500:00 HOURS, on the 14th day of December, 2005 at 210 SENATE AVENUE CAMP HILL, PA 17011 3RD FLOOR by handing to TERESA PLESCE, RISK MANAGEMENT ADULT IN CHARGE 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 Postage Surcharge 18,00 14,40 ,74 10,00 ,00 43.14 Sworn and Subscribed to before me this },4'G day of So Answers: j ~I/ .-......, .1,:.,/ ....... ,?"'/ ~~~;}'~~'~2~~~~~ ,~r: R, Thomas Kline 01/05/2006 VILLARI BRANDES KLINE By: ~~4~V&~ . Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2005-06320 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HOLY SPIRIT HEALTH SYSTEM DBA HOLY SPIRIT SISTERS OF CHRISTI the DEFENDANT , at 1500:00 HOURS, on the 14th day of December, 2005 at 210 SENATE AVENUEREET 3RD FLOOR CAMP HILL, PA 17011 by handing to TERESA PLESCE, RISK MANAGEMENT ADULT IN CHARGE 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: 6,00 ,00 ,00 10,00 ,00 16,00 ~~~"'~~ R. Thomas Kline 01/05/2006 VILLARI BRANDES KLINE Sworn and Subscribed to before By: ~~~.vl4c., , Deputy Sheriff me this IV 2'1 - day of A,D, SHERIFF'S RETURN - REGULAR CASE NO: 2005-06320 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County, pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HOLY SPIRIT HOLSPITAL the DEFENDANT , at 1500:00 HOURS, on the 14th day of December, 2005 at 210 SNEATE AVENUE 3RD FLOOR CAMP HILL, PA 17011 by handing to TERESA PLESCE, RISK MANAGEMENT ADULT IN CHARGE 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: 6.00 .00 .00 10,00 ,00 16,00 ',:'/~~ ,.;,1.'" '" , R, Thomas Kline p me this J'I~ day of 01/05/2006 VILLARI BRANDES KLINE ~~/V~ . eputy Sheriff By: Sworn and Subscribed to before A,D, SHERIFF'S RETURN ~ REGULAR CASE NO: 2005~06320 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon EVANCHO CHARLES D MD the DEFENDANT , at 1500:00 HOURS, on the 14th day of December 2005 at C/O HOLY SPIRIT HOSPITAL 210 SENATE AVENUE 3RD FLOOR CAMP HILL, PA 17011 by handing to TERESA PLESCE, RISK MANAGEMENT ADULT IN CHARGE 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: 6,00 ,00 ,00 10,00 ,00 16,00 R, Thomas Kline me this 21ti. day of 01/05/2006 VILLARI BRANDES KLINE By: A;J~vg~ Deputy Sheri"ff Sworn and Subscribed to before A,D, CASE NO: 2005-06320 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOELSCH JOHN F ET AL VS HOLY SPIRIT HEALTH SYSTEM ETAL WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, was served upon says, the within WRIT OF SUMMONS the OAKWOOD CENTER RADIATION ONCOLOGY DEFENDANT , at 1424:00 HOURS, on the 14th day of December, 2005 at 880 CENTRY DRIVE MECHANCISBURG, PA 17055 MS COUGH, OFFICE ADMIN, by handing to ADULT IN CHARGE 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 10,56 ,00 10,00 ,00 26,56 Sworn and Subscribed to before "" me this J4~ day of A.D, So Answers: .<';:';'~"i; R, Thomas Kline 01/05/2006 VILLARI BRANDES KLINE By: ~7tY7v;L- 'Deputy S eriff In The Court of Common Pleas of Cumberland County, Pennsylvania John F. Koelsch VS. Holy Spirit Health System et al SERVE: Richard J. Di tlow Jr MD No. 05-6320 civil Now, Decanber.13, 2005 , I, SHERIFF OF CUMBERLAND COUNTY, P A. do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. r~~-R Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 ,at o'clock M. served the within upon at by handing to a copy of the original and made lmown to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this _ day of ,20_ COSTS SERVICE MILEAGE AFFIDAVIT $ $ @ffitt of tlp~ ~4criff William T. Tully Solicitor Charles E. Sheaffer Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W, Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 1710 1 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania KOELSCH JOHN F. vs County of Dauphin DITLOW RICHARD J MD Sheriff's Return No. 2112-T - -2005 OTHER COUNTY NO. 05-6320 CIVIL AND NOW:December 21, 2005 at 12:25PMserved the within WRIT OF SUMMONS upon DITLOW RICHARD J MD by personally handing to CONNIE SHOPE CHIEF THERAPIST 1 true attested copy(ies) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 775 S ARLINGTON AVENUE HARRISBURG, PA 17109-0000 Sworn and subscribed to So Answers, Jf~ ..-- COllilty, Pa. before me this 27TH day of DECEMBER, 2005 Sheriff ~~ By NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. I, 2006 Deputy Sheriff Sheriff's Costs: $35.25 PD 12/15/2005 RCPT NO 213077 GM VILLARI, BRANDES & KLINE, P.c. By Peter M. Villari, Esquire Paul D, Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. Nos,: 26875/59769/77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, PAl 7020 Docket No, 05-6320 Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital 503 North 21" Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY individually and/or doing business as Holy Spirit Hospital 503 North 21" Street Camp Hill. PA 17011 -and- HOLY SPIRIT HOSPITAL 503 North 21" Street Camp Hill, PA 17011 -and- CHARLES D. EVANCHO, MD c/o Holy Spirit Hospital 503 North 21" Street Camp Hill, PA 17011 -and- RICHARD J DITLOW, JR, MD. 775 S Arlington Avenue Harrisburg, P A 17109 -and- OAKWOOD CENTER RADIATION ONCOLOGY 880 Centry Drive Mechanicsburg, PA 17055 Defendants, 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 yonr 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 ELlGmLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 AVISO USTED HA smo DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en 1as siguientes paginas, debe tomar acci6n dentro de 10s pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando persona1mente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, 1as demandas presentadas aqui en contra suya, Se Ie advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede pro ceder sin usted y un fallo por cua1quier suma de dinero rec1amada en 1a demanda 0 cualquier otra rec1amaci6n 0 remedio solicitado por el demandante puede ser dictado en contra suya par 1a Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos import antes para usted. USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDIAT AMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VA Y A A LA SIGUlENTE OFlCINA EST A OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO, SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES PO SIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALlFICAN Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 VILLARI, BRANDES & KLINE, P.c. By: Peter M, Villari, Esquire Paul D, Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D, Nos,: 26875/59769/77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, PA 17020 Docket No. 05-6320 Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital 503 North 21 ,j Street Camp Hill, P A 170 II -and- HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY individually and/or doing business as Holy Spirit Hospital 503 North 21"' Street Camp Hill, PA 17011 -and- HOLY SPIRIT HOSPITAL 503 North 21" Street Camp Hill, PA 170] I -and- CHARLES D. EVANCHO, MD c/o Holy Spirit Hospital 503 North 21" Street Camp Hill, PA 17011 -and- RICHARD J DITLOW, JR, MD, 775 S. Arlington Avenue Harrisburg, PAl 71 09 -and- OAKWOOD CENTER RADIATION ONCOLOGY 880 Centry Drive Mechanicsburg, P A 17055 Defendants, COMPLAINT Plaintiff, John Koelsch, individually and as Administrator of the Estate ofKristy E. Koelsch, deceased, through his attorneys, Villari, Brandes & Kline, P,C, by way of Complaint against the defendants, hereby asserts as follows: 1. At all times material hereto, plaintiff, John Koelsch, individually and as Administrator of the Estate ofKristy E. Koelsch, deceased, was and is an adult individual with an address of 3 6 Jefferson Street, Duncannon, Pennsylvania. 2, Decedent, Kristy E, Koelsch, died intestate on or about May 24,2005. 3, Plaintiff, John Koelsch, was duly appointed Administrator of the Estate ofKristy E. Koelsch, deceased, by the Register of Wills, Perry County, Pennsylvania, and in this capacity he acts in part herein on behalf of the Estate, the beneficiaries of the Estate and the potential beneficiaries of the Estate, 4, At the time of her death, plaintiff's decedent, Kristy E. Koelsch, left surviving her the following individuals on whose behalf this claim is, in part, filed and who have been notified of this lawsuit: Name Plaintiff, John F, Koelsch Janelle Koelsch John W, Koelsch Relationship Husband Daughter Son 5, On or about September 21, 2004, prior to the death of decedent, a medical professional liability action was commenced by Krisy E. Koelsch and John F. Koelsch in the Cumberland County Court of Common Pleas, at Court Term and Docket No, 04-4744 by filing a Complaint, each and every allegation of which is incorporated herein by reference thereto as though fully set forth herein, To the extent any fact(s) or allegation( s) ofthe Complaint filed at No, 04-4744 conflicts or is inconsistent with any fact(s) or allegation(s) herein, same shall be considered to be pled in the alternative, 6, At all times material hereto, defendant, Holy Spirit Health System, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital (hereinafter "Health System"), was and/or is a corporation, partnership, professional corporation, professional association, health care system, hospital, health care clinic and/or other similar entity providing medical, nursing, health care and/or hospital services to the public, organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 503 North 21" Street, Camp Hill, Cumberland County, Pennsylvania, Plaintiffs are asserting a professional negligence claim against this Defendant. 7. At all times material hereto, defendant, Health System, acted individually and/or by and through its parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein as well as those other doctors, nurses, technicians and/or therapists identified in its medical records -2- pertaining to Kristy E. Koelsch who were then and there acting within the course and scope of their employment, agency and/or authority. 8, At all times material hereto, defendant, Holy Spirit Hospital of the Sisters of Christian Charity, individually and/or doing business as Holy Spirit Hospital (hereinafter "Holy Spirit Hospital"), was and/or is a corporation, partnership, professional corporation, professional association, health care system, hospital, health care clinic and/or other similar entity providing medical, nursing, health care and/or hospital services to the public, organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 503 North 21" Street, Camp Hill, Cumberland County, Pennsylvania, Plaintiffs are asserting a professional negligence claim against this Defendant. 9. At all times material hereto, defendant, Holy Spirit Hospital, acted individually and/or by and through its parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein as well as those other doctors, nurses, technicians and/or therapists identified in its medical records pertaining to Kristy E. Koelsch who were then and there acting within the course and scope of their employment, agency and/or authority, 10. At all times material hereto, defendant, Holy Spirit Hospital (hereinafter "Holy Spirit"), was and/or is a corporation, partnership, professional corporation, professional association, health care system, hospital, health care clinic and/or other similar entity providing medical, nursing, health care and/or hospital services to the public, organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 503 North 21" Street, Camp Hill, Cumberland County, Pennsylvania. Plaintiffs are asserting a -3- professional negligence claim against this Defendant II, At all times material hereto, defendant, Holy Spirit, acted individually and/or by and through its parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein as well as those other doctors, nurses, technicians and/or therapists identified in its medical records pertaining to Kristy E, Koelsch who were then and there acting within the course and scope of their employment, agency and/or authority, 12, At all times in this Complaint hereinafter, defendants, Health System, Holy Spirit Hospital and Holy Spirit, shall be collectively referred to as "defendant, Hospital" unless otherwise noted, 13, At all times material hereto, defendant, Oakwood Center Radiation Oncology (hereinafter "Oakwood"), was and/or is a corporation, partnership, professional corporation, professional association, health care system, hospital, health care clinic and/or other similar entity providing medical, nursing, health care and/or hospital services to the public, organized and existing under the laws ofthe Commonwealth of Pennsylvania, with a principal place of business located at 889 Centry Drive, Mechanicsburg, Cumberland County, Pennsylvania. Plaintiffs are asserting a professional negligence claim against this Defendant. 14, At all times material hereto, defendant, Oakwood, acted individually and/or by and through its parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein as well as those other doctors, nurses, technicians and/or therapists identified in its medical records pertaining to plaintiffs, who were then and there acting within the course and scope of their employment, -4- agency and/or authority. IS. At all times material hereto, defendant, Charles D, Evancho, M,D. (hereinafter "Dr. Evancho"), was an adult individual residing in the Commonwealth of Pennsylvania, with a principal place of business located at 503 North 21" Street, Camp Hill, Cumberland County, Pennsylvania. Plaintiffs are asserting a professional negligence claim against this Defendant 16. At all times material hereto, defendant, Dr. Evancho, was a physician licensed to practice medicine in the Commonwealth of Pennsylvania, specializing in pathology. 17. At all times material hereto, defendant, Dr. Evancho, acted individually and/or as the agent, employee, worker and/or servant of defendant, Hospital. 18, At all times material hereto, defendant, Richard J Dillow, M,D, (hereinafter "Dr. Dillow"), was an adult individual residing in the Commonwealth of Pennsylvania, with a principal place of business located at775 S, Arlington Avenue, Harrisburg, Dauphin County, Pennsylvania. Plaintiffs are asserting a professional negligence claim against this Defendant 19, At all times material hereto, defendant, Dr. Dillow, was a physician licensed to practice medicine in the Commonwealth of Pennsylvania, specializing in radiology and/or radiation oncology. 20. At all times material hereto, defendant, Dr. Dillow, acted individually and/or as the agent, employee, worker and/or servant of the defendant, Hospital and/or Oakwood, 21. On January 11,1999, Kristy E. Koelsch underwent a major duct excision of her left breast at Holy Spirit Hospital by Angela Soto-Hamlin, MD, (not a party to this action). 22, Upon information, as part of the aforesaid procedure, Dr. Hamlin sent tissue specimens to the defendant Hospital's laboratory for pathologic analysis, -5- 23, On January 12,1999, the pathologic examination of the specimens from the excision were reported by defendants, Dr. Evancho and/or Hospital, to reveal: "focal intraductal carcinoma showing cribriform pattern with high grade nuclear cytology. The tumor extends very close (approximately 0,2 mm) from the inked edge, The true margins are difficult to determine because the specimen was received in two fragments, The tumor has a maximum dimension of 4.5 mm and is found in the larger fragment received, No definite infiltrating carcinoma is identified, The remaining breast tissue shows focal moderate ductal epithelial hyperplasia and adenosis. A section will be sent for estrogen receptor and progesterone receptor studies and the results given in an addendum report," 24. On January 15, 1999, Ms, Koelsch, presented to Dr. Hamlin at her office for follow up care at which time Dr. Hamlin noted "DCIS, (+) margins" with a plan for "WE," "RI," "tamoxifen," and "D/C OC's," 25, On January 19, 1999, an addendum report was issued by defendants, Dr. Evancho and/or Hospital, with regard to the aforesaid pathologic examination, which provided: "Immunoperative stains for estrogen receptors and progesterone receptors are negative. Her-2 HercepIest (1M) is strongly positive (3+), Prognostic groupings are reported only for invasive breast carcinomas (see report from Impath)," 26. On January 28,1999, at defendant Hospital, Ms. Koelsch underwent, upon information, "a wide excision of the entire previous biopsy site" of the left breast for ductal carcinoma in situ performed by Dr. Hamlin, 27, The aforesaid surgical procedure began, upon information, at approximately 1005 a.m, -6- 28, Upon information, while the surgery was ongoing, tissue from the wide excision was sent by or at the order of Dr. Hamlin to the Hospital Laboratory for pathologic analysis. 29, The hospital "O,R. Patient Care Record" lists in the section regarding tissue sent for pathologic examination "breast mass" and "[with] additional piece" and "(do frozen if necessary)" 30, Upon information, at approximately 10:39 a,m, that day, the tissue from the wide excision procedure was received by defendant Hospital's laboratory, 3], Upon information, at approximately ]0:56 a,m, that day, a "Surgical Pathology Consultation" prepared by defendants, Dr. Evancho and/or Hospital, reported the "frozen section diagnosis" as "Superior Margin is frozen and shows no tumor." 32, Upon information, the results of the aforesaid Surgical Pathology Consultation were made known to Dr. Hamlin in the operating room. 33. Upon information, the wide excision procedure was thereafter concluded by Dr. Hamlin at l LOS a,m on the aforesaid date 34, On January 29, ]999, a gross description of the tissue submitted from the wide excision procedure was reported by defendants, Dr. Evancho and/or Hospital, as follows: "The specimen is labeled wide excision left breast and is received fresh for frozen section, The specimen consists of a fragment of skin with underlying white-yellow tissue measuring 5,5 x 3.5 x 2,5 cm, A long suture is present marking the medial margin, A short suture is present marking the superior margin and a single stitch is present marking the superficial portion of the specimen, The surgical margins are covered in black ink On sectioning, fibrous tissue is predominantly identified, A focal firm area is found at the superior margin and this area is frozen. A second -7- fragment of yellow-white tissue is also found free in container measuring 3 cm in maximum diameter. This is covered with black ink and on sectioning shows no evidence of tumor by gross examination Representative sections are submitted" 3 5, On February I, 1999, the microscopic examination of the tissue from the wide excision was reported by defendants, Dr. Evancho and/or Hospital, to reveal, among other things: "Sections from the smaller fragment found free in the container without sutures show intraductal carcinoma, comedo and cribriform type with high grade nuclear cytology, No definite invasive carcinoma is identified, The tumor has a maximum dimension 01'0.8-0,9 cm, and focally extends to the inked edge of this fragment. However, because this fragment is not part of the main biopsy specimen with sutures, it is difficult to determine if the inked edge represents a true margin. Clinical correlation is suggested A focal area of fat necrosis is also seen in this fragment." 36 Upon information, on February I, 1999, the microscopic examination results of the tissue from the wide excision was reported by defendants, Dr. Evancho and/or Hospital, to Dr. Hamlin and/or her office along with a message stating: "Show this to physician immediately. Do not file until he/she has seen it." 37, Alternatively, upon information, the microscopic examination results of the tissue from the wide excision was not reported by defendants, Dr. Evancho and/or Hospital, to Dr. Hamlin and/or her office. 38, On February 3, 1999, Dr. Hamlin prepared an Operative Procedure Note regarding the wide excision procedure which stated: "The patient was brought to the operating room and placed in the supine position on the operating room table Anesthesia was induced and she was prepped and draped in the usual sterile fashion, A transverse elliptical incision was made on the -8- left breast over the previous incision site, carried down through the skin into the subcutaneous tissues and a wide excision of the entire previous biopsy site was encountered, Hemostasis was obtained using Bovie electrocautery, 2-0 plain interrupted sutures were used to close the breast tissue and the subcutaneous tissue and a 4-0 Prolene running subcuticular stitch was used to close the skin, Steri strips and sterile dressing were applied, The patient was awakened and taken to the recover room in good condition after tolerating the procedure well," 39 On February 5, 1999, Ms Koelsch, presented to Dr. Hamlin at her office for follow up care, at which time Dr. Hamlin prescribed, ordered and/or recommended that Ms, Koelsch undergo radiation therapy to her breast by defendant, Dr. Ditlow, 40, On or about February 15, 1999, Ms. Koelsch presented to defendants, Dr. Ditlow and Oakwood, for an evaluation regarding treatment of her breast with external beam radiation therapy, 41, Upon information, on the aforesaid date, defendant, Dr. DitIow, wrote a letter to Dr. Hamlin advising, among other things: "This letter is to inform you that I saw your patient, Kristy Koelsch, here at Oakwood Center on 2/15/99, for an evaluation for treatment of her recently diagnosed left breast intra-ductal carcinoma with external beam radiation, I believe she can be adequately treated with external beam treatment and we would plan to deliver a dose of 4500 to 5000 cGy to the whole left breast over a period of 5 weeks, . ..By the time you receive this letter, we will either have obtained the information from your office or I will have discussed with you on the telephone, my concerns about the pathology report from her last procedure of 1/28/99. The report talks about a larger and smaller fragment, one of which contained intra- ductal carcinoma close to the margin of resection, I assume that the smaller fragment was the -9- first specimen and the larger fragment was the final specimen, which would be more indicative of the final margin of resection, If this assumption is true, then we would not plan a boost to the area of the original tumor" 42. On the aforesaid date at approximately 2:30 p,m" a copy of Dr. Hamlin's February 2, 1999 Operative Procedure Note was sent by facsimile from Dr. Hamlin's office to Oakwood Center. 43, Upon information, defendant, Dr. Ditlow, did not discuss with Dr. Hamlin the details of the wide excision procedure she performed on 1/28/99, nor the specimen fragments from the aforesaid procedure, nor which specimen fragment represented the true margin of resection, nor alternative plans of treatment 44, Alternatively, upon information, defendant, Dr Ditlow, discussed with Dr. Hamlin the details of the wide excision procedure of 1/28/99 and/or the specimen fragments and/or which specimen fragment represented the true margin of resection and despite learning that Dr. Hamlin could not confirm clean margins and/or was concerned about unclean margins, defendant, Dr. Ditlow, did not change the treatment plan and did not perform a boost of radiation 45, Thereafter, from March 9, ] 999 through April 12, 1999, defendant Dr. Ditlow administered radiation therapy to Ms, Koelsch at a total dose of 4500cGy to the whole left breast without a boost of radiation to the area of the original tumor. 46, Despite Ms. Koelsch's family and medical history, condition, examination findings, pathology results, radiology results and test results, defendant, Dr. Ditlow, did not advise nor recommend to Ms, Koelsch that a mastectomy be performed nor that a radiation boost be provided, -10- 47. Despite Ms Koelsch's family and medical history, condition, examination findings, pathology results, radiology results and test results, defendant, Dr. Ditlow, did not advise nor recommend to Ms, Koelsch that she undergo chemotherapy, 48. Despite Ms. Koelsch's family and medical history, condition, examination findings, pathology results, radiology results and test results, no testing of her lymph nodes was recommended, ordered nor performed, 49, Despite Ms, Koelsch's family and medical history, condition, examination findings, pathology results, radiology results and test results, defendant Dr. Ditlow did not recommend or order any additional exploration or biopsies ofMs, Koelsch's breast. 50, On May 5, 1999, Ms, Koelsch presented to Dr. Hamlin at her office, for follow up, at which time Dr. Hamlin examined Ms, Koelsch's breast, noted minimal induration beneath the nipple, determined that the physical examination was normal and recommended a mammogram be performed in six months, 51. On November 10,2003, a routine mammogram ofMs, Koelsch's left breast revealed: "architectural distortion with associated skin thickening and retraction with new pleomorphic calcifications at the lumpectomy site in the lower left breast is worrisome for recurrent cancer. Biopsy is recommended," 52. Thereafter, on November 19, 2003, at Ms, Koelsch's follow-up exam with Dr. Hamlin at her office, Dr. Hamlin noted Ms, Koelsch's mammogram showed an increase in the amount of calcifications in the area of architectural distortion, her examination revealed firmness in the area with more retraction, and consequently she recommended a stereotactic biopsy, -11- 53. On December 9,2003, Dr. Hamlin, performed a stereotactic biopsy ofMs, Koelsch's left breast which ultimately revealed, upon information, high grade invasive and in situ carcmoma. 54. On December 16, 2003, Ms. Koelsch presented to Dr. Hamlin at her office, for follow up and Dr. Hamlin informed Ms, Koelsch that she was not a candidate for a sentinel lymph node biopsy because of prior radiation, and a left modified radical mastectomy was planned for January 2004, 55, On December 18, 2003, Ms. Koelsch presented to the Emergency Room at Holy Spirit Hospital with complaints of right side pain, right shoulder pain when she takes a deep breath, right upper quadrant discomfort and nausea and upset stomach with meals, 56, At said time and place, an ultrasound of the gallbladder and CT of the chest, abdomen and pelvis were performed, 57. At said time and place, upon information, the ultrasound of the gallbladder revealed possible metastatic disease. 58, At said time and place, upon information, the CT of the chest revealed a 3 centimeter mass with an enlarged node in Ms Koelsch's chest 59, At said time and place, upon information, the CT of the abdomen/pelvis revealed evidence of diffuse advanced metastatic lesions, as well as evidence of mesenteric metastases and fluid in the abdomen, 60. Thereafter, on April 26, 2004, Ms, Koelsch had a left simple mastectomy and partial axillary lymph node dissection performed by Dr. Paul Creary at Harrisburg Hospital, with specimens sent for pathologic examination. -12- 61, On April 26, 2004, the pathologic examination of the specimens from the aforesaid surgery reported, upon information, a 7 cm invasive ductal carcinoma tumor in the breast, with three of four lymph nodes positive for metastatic ductal carcinoma, 62, On or about May 24, 2005, Ms. Koelsch succumbed to the cancer and died, 63, As a direct and proximate result of the Defendants' individual, joint, several and/or alternative negligence and carelessness stated hereinafter, Ms, Koelsch, suffered severe and prolonged injuries and damages, including, but not limited to: an increase in the size of her cancerous tumor; exacerbation and worsening of a benign and/or cancerous condition of the her left breast; metastasis and/or increased risk of metastasis of the cancer of her left breast; side- effects from more invasive procedures required as a result thereof; a worsening of her long-term prognosis; the need for medical care and treatment that would have otherwise been unnecessary; chronic pain throughout her body; nausea; vomiting; scarring; disfigurement; loss of energy; loss of sleep; other bodily and systemic injuries; emotional distress; and ultimately, an agonizing death, 64, As a direct and proximate result of the Defendants' individual, joint, several and/or alternative negligence and carelessness stated hereinafter, Ms, Koelsch, was forced to undergo extensive, invasive and painful treatment in order to correct the conditions from which she suffered, 65. As a direct and proximate result of the Defendants' individual, joint, several and/or alternative negligence and carelessness stated hereinafter, Ms, Koelsch suffered great pain, suffering, disfigurement, scarring, agony, distress, embarrassment, emotional distress, humiliation and loss oflife's pleasures, all to her great detriment and loss, -13- 66, As a direct and proximate result of the Defendants' individual, joint, several and/or alternative negligence and carelessness stated hereinafter, Ms. Koelsch, suffered a loss of earnings and/or earning capacity, all to her great detriment and loss, 67, As a direct and proximate result of the Defendants' individual, joint, several and/or alternative negligence and carelessness stated hereinafter, Ms, Koelsch and her husband suffered financial losses as a result of debts and obligations incurred for medical care and treatment to treat and/or correct the aforestated injuries and damages she has suffered 68, As a direct and proximate result of the Defendants' individual, joint, several and/or alternative negligence and carelessness stated hereinafter, Ms, Koelsch was prevented from attending to her usual and customary hobbies, duties, employment and/or family obligations and responsibilities, all to her great detriment and loss, COUNT I NEGLIGENCE/SURVIVAL ACTION PLAINTIFF V. DEFENDANT CHARLES D. EVANCHO, M.D. 69. Plaintiff incorporates by reference paragraphs 1 through 68 as if fully set forth herein at length. 70, The plaintiffs injuries and damages were caused by the individual, joint, several and/or alternative negligence and carelessness of defendant, Charles D Evancho, M,D, which included the following: a, Failure to timely, properly and/or adequately diagnose Ms, Koelsch's breast cancer on January 28, 1999 during the aforenoted wide excision surgery; -14- b, Improperly diagnosing Ms, Koelsch's cancer on January 28, 1999 during the aforenoted wide excision surgery; c. Failure to timely, properly and/or adequately perform pathologic examination by frozen section of all margins of the wide excision specimens of Ms, Koelsch's left breast; d, Failure to timely, properly and/or adequately perform pathologic examination by frozen section of the smaller fragment of the wide excision of Ms. Koelsch's left breast; e. Failure to timely, properly and/or adequately perform, interpret and/or report on the pathologic examination(s) of the specimens from the wide excision ofMs, Koelsch's left breast; f Improperly performing, interpreting, diagnosing and/or reporting on the pathologic examination(s) of the specimens from the wide excision ofMs, Koelsch's left breast; g, Failure to timely, properly and/or adequately communicate the pathologic examination results from the wide excision to Ms, Koelsch and/or appropriate medical providers; h. Failure to timely, properly and/or adequately communicate with the Ms, Koelsch's medical providers regarding interpretation(s), findings, results and/or recommendations relating to pathologic examination of specimens from the wide excision of Ms, Koelsch's left breast; -15- L Failure to timely, properly and/or adequately recommend, order and/or perform additional or different pathologic examinations and/or studies ofthe specimens from the wide excision ofMs Koelsch's left breast; J. Failure to timely, properly and/or adequately recognize the risk associated with Ms Koelsch's left breast cancer; k, Failure to timely, properly and/or adequately recommend, order and/or perform on Ms, Koelsch such pathologic examinations, tests and/or studies needed to timely diagnose and treat Ms Koelsch's cancer; L Failure to timely, properly and/or adequately avail himself /herself of advances in medical knowledge and/or applicable medical literature regarding the pathologic examination of breast masses; m. Failure to timely, properly and/or adequately recognize and/or respond to the risk associated with Ms, Koelsch's pathology results and/or breast cancer; n, Failure to timely, properly and/or adequately promulgate, abide by and/or enforce applicable rules, guidelines, protocols, and/or regulations under the circumstances including, but not limited to, those regarding the method or manner of performing pathologic examination(s) on surgical specimens from wide excisions in patients such as Ms Koelsch; transporting surgical specimens to the laboratory for pathologic analysis; maintaining chain of custody of pathologic specimens; logging in and documenting receipt of pathology specimens; documenting processing of pathologic specimens from time of receipt through time of final report; the method or manner of performing pathologic examination( s) by frozen section. gross -16- inspection, microscopic inspection, or otherwise on surgical specimens from wide excisions in patients such as Ms, Koelsch; performing, interpreting, diagnosing and/or reporting on the pathologic examination(s) on surgical specimens from wide excisions in patients such as Ms, Koelsch; communicating pathologic examination results on surgical specimens from wide excisions in patients such as Ms, Koelsch to appropriate medical providers and/or the patient and/or patient's family; and communicating with medical providers regarding results of pathologic examination(s) on surgical specimens from wide excisions in patients such as Ms, Koelsch; maintaining continuity in care; insuring receipt of pathology reports by the requesting physician; o. Increased the risk of harm to Kristy E. Koelsch as a result of defendant's negligence and carelessness as set forth above WHEREFORE, plaintiff demands judgment against the defendant, Charles D. Evancho, M,D" individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as this Honorable Court may deem just and fair. COUNT II NEGLIGENCE/SURVIVAL ACTION PLAINTIFF V. RICHARD J. DlTLOW, JR., M.D. 71. Plaintiff incorporates by reference paragraphs 1 through 70 as iffully set forth herein at length, 72, The plaintiff's injuries and damages were caused by the individual, joint, several -17- and/or alternative negligence and carelessness of defendant, Richard 1. Ditlow, Jr., M,D" which included the following: a, Failure to timely, properly and/or adequately diagnose and treat Ms, Koelsch's condition; b, Improperly diagnosing and/or treating Ms, Koelsch's condition; c, Failure to timely, properly and/or adequately recommend. order and/or perform on Ms, Koelsch a boost of radiation to her left breast; d. Providing inadequate and/or improper radiation therapy to Ms, Koelsch under the circumstances; e. Failure to timely, properly and/or adequately follow up with Ms, Koelsch for additional examinations given the clinical circumstances; f Failure to timely, properly and/or adequately recognize and respond to the risk associated with Ms. Koelsch's condition; g, Failure to timely, properly and/or adequately recognize and respond to the risk associated with Ms, Koelsch's type of breast cancer in light of her aforestated family and medical history, examination findings, pathology findings, radiology results, symptomology and test results; h, Failure to timely, properly and/or adequately determine and/or document Ms Koelsch's medical history, family history, examination findings, pathology findings, radiology results and/or test results; L Failure to timely, properly and/or adequately become aware of, respond to and/or follow-up on Ms, Koelsch's medical condition, medical history, family history, -18- pathology results, test results, radiology results and/or status regarding her left breast mass(es) and/or cancer; J. Failure to timely, properly and/or adequately communicate to Ms. Koelsch her treatment options and/or need for mastectomy and/or chemotherapy as pertained to her left breast under the circumstances; k. Failure to timely, properly and/or adequately refer Ms. Koelsch to appropriate specialists for needed evaluation, diagnosis and/or treatment under the circumstances; L Failure to timely, properly and/or adequately avail himself/herself of advances in medical knowledge and/or applicable medical literature regarding the monitoring, care and/or treatment of conditions similar to those suffered by Ms. Koelsch; m Failure to timely, properly and/or adequately recognize and respond to the risk associated with Ms. Koelsch's history, examination findings, test results, radiology results, pathology results and/or breast cancer; n. Failure to timely, properly and/or adequately order and/or recommend further testing of Ms. Koelsch's breast in light of her Ms. Koelsch's history, examination findings, test results, radiology results, pathology results; o Failure to timely, properly and/or adequately recommend and/or order other treatment options and/or need for mastectomy and/or chemotherapy as pertained to Ms. Koelsch's breast under the circumstances; p. Failure to timely, properly and/or adequately order and/or recommend additional or different treatment, studies and/or evaluations of Ms. Koelsch's breast; -19- q. Failure to timely, properly and/or adequately educate Ms Koelsch regarding her condition, test results, pathology results and/or follow up care and treatment options; r. Failure to timely, properly and/or adequately order and/or recommend removal, sampling and/or testing of Ms. Koelsch's lymph nodes; s. Failure to timely, properly and/or adequately order and/or recommend additional exploration and/or biopsies of Ms. Koelsch's breast; t. Failure to timely, properly and/or adequately promulgate, abide by and/or enforce applicable rules, guidelines, protocols, and/or regulations under the circumstances including, but not limited to, those regarding the method and manner of diagnosing, assessing and treating breast mass(es), suspected breast cancer, breast cancer biopsy or excision sites, and/or breast cancer; the recommendation, ordering, interpreting, reporting on, following up on, determining and/or documenting medical and family history, communications with other doctors, examination findings, pathology findings, radiology results, symptomology and test results in patients such as Ms. Koelsch; maintaining continuity of care; communicating with other physicians regarding the patient's history, examination results, test results and pathology findings; and communicating treatment options and/or need for mastectomy and/or chemotherapy to patients such as Ms Koelsch; u. failure to timely, properly and/or adequately communicate with Dr. Hamlin regarding Ms Koelsch's biopsies, surgeries, pathology results and/or clinical status; -20- v. Increased the risk of harm to Kristy E. Koelsch as a result of defendant's negligence and carelessness as set forth above. WHEREFORE, plaintiff demands judgment against the defendant Richard J. Ditlow, Jr., M.D., individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as this Honorable Court may deem just and fair. COUNT III NEGLlGENCE/SURVIV AL ACTION PLAINTIFF V. DEFENDANTS, HOLY SPIRIT HEALTH SYSTEM, INDIVIDUALLY AND/OR DOING BUSINESS AS HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY AND/OR DOING BUSINESS AS HOLY SPIRIT HOSPITAL, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, INDIVIDUALLY AND/OR DOING BUSINESS AS HOLY SPIRIT HOSPITAL, AND HOLY SPIRIT HOSPITAL 73. Plaintiff incorporates by reference paragraphs I through 72 as iffully set forth herein at length. 74. The plaintiff's injuries and damages were caused by the individual, joint, several and/or alternative negligence and carelessness of defendants, Holy Spirit Health System, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital, Holy Spirit Hospital of the Sisters of Christian Charity, individually and/or doing business as Holy Spirit Hospital, and Holy Spirit Hospital, acting as aforesaid, which included the following: a. Failure to and/or improperly monitoring the qualifications of all doctors and/or other agents, workers, partners, principles, servants and/or employees responsible -21- for the diagnosis, care and/or treatment of Ms. Koelsch; b. Failure to and/or improperly monitoring the treatment, practice or work of all doctors and/or other agents, workers, partners, principles, servants and/or employees responsible for the diagnosis, care and/or treatment of Ms. Koelsch; c. Failure to timely, properly and/or adequately select, train and supervise its doctors and/or other agents, workers, partners, principles, servants and/or employees responsible for the diagnosis, care and/or treatment of Ms. Koelsch; d. Failure to timely, properly and/or adequately monitor the competency and the adequacy of the treatment, practice or work of members of its medical staff and/or other agents, workers, partners, principles, servants and/or employees responsible for the diagnosis, care and/or treatment of Ms. Koelsch; e. Failure to timely, properly and/or adequately have medical and surgical review procedures in place so that it could obtain knowledge regarding the performance of its doctors and medical staff, including the defendants herein as well as those other doctors, physician assistants, residents, interns, certified registered nurse practitioners, assistants and/or other agents, workers, partners, principles, servants and/or employees responsible for the diagnosis, care and/or treatment of Ms. Koelsch; f. Failure to timely, properly and/or adequately discharge those doctors, physician assistants, residents, interns, certified registered nurse practitioners, assistants and/or other agents, workers, partners, principles, servants and/or employees whose services and skills fell below the general recognized standards of acceptable -22- medical services and/or skills; g. Improperly held itself out to plaintiffs as a proper full service facility and/or provider having all the necessary and professional staff, procedures and competence to perform complex medical procedures and/or surgery and/or procedures as were to be performed on Ms. Koelsch; h. Failure to timely, properly and/or adequately train, supervise, fire and/or review agents/employees under defendants' supervision and/or control, limited to the facts set forth in this Complaint and the Complaint filed at Court Term and Docket No. 04-4744 which is incorporated herein by reference, given that defendants knew and/or reasonably should have known that said agents/employees were improperly and/or inadequately trained and/or supervised, and/or that said agents/employees were incapable of and/or were not properly and/or adequately performing the duties and responsibilities associated with their respective positions; L Failure to timely, properly and/or adequately report and/or communicate Ms. Koelsch's condition, test results, pathology results, medical status and/or progress to appropriate individuals under the circumstances; J Failure to timely, properly and/or adequately promulgate, abide by and/or enforce applicable rules, guidelines, protocols, and/or regulations under the circumstances including, but not limited to, those regarding the method or manner of performing pathologic examination(s) on surgical specimens from wide excisions in patients such as Ms. Koelsch; transporting surgical specimens to the laboratory for pathologic analysis; maintaining chain of custody of pathologic specimens; logging -23- in and documenting receipt of pathology specimens; documenting processing of pathologic specimens from time of receipt through time of final report; the method or manner of performing pathologic examination(s) by frozen section, gross inspection, microscopic inspection, or otherwise on surgical specimens from wide excisions in patients such as Ms. Koelsch; performing, interpreting, diagnosing and/or reporting on the pathologic examination(s) on surgical specimens from wide excisions in patients such as Ms. Koelsch; communicating pathologic examination results on surgical specimens from wide excisions in patients such as Ms. Koelsch to appropriate medical providers and/or the patient and/or patient's family; and communicating with medical providers regarding results of pathologic examination( s) on surgical specimens from wide excisions in patients such as Ms. Koelsch; maintaining continuity in care; insuring receipt of pathology reports by the requesting physician; k. Increased the risk of harm to Ms. Koelsch as a result of defendants' negligence and carelessness as set forth above; L Being vicariously liable for the acts and/or omissions of the individual defendants and, in that regard, paragraph 70 (a) through (0) of this Complaint and paragraph 75 (a) through (ft) of the Complaint filed at Court Term and Docket No. 04-4744 are incorporated herein as though set forth at length. WHEREFORE, plaintiff demands judgment against the defendants, Holy Spirit Health System, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital, Holy Spirit Hospital of the Sisters of Christian Charity, -24- individually and/or doing business as Holy Spirit Hospital, and Holy Spirit Hospital, individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as this Honorable Court may deem just and fair COUNT IV NEGLIGENCE/SURVIVAL ACTION PLAINTIFF V. DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY 75. Plaintiff incorporates by reference paragraphs 1 through 74 as if fully set forth herein at length. 76. The plaintiff's injuries and damages were caused by the individual, joint, several and/or alternative negligence and carelessness of defendant, Oakwood Center Radiation Oncology, acting as aforesaid, which included the following: a. Failure to and/or improperly monitoring the qualifications of all doctors and/or other agents, workers, partners, principles, servants and/or employees responsible for treating and/or providing care to Ms. Koelsch, limited to the facts set forth in this Complaint; b. Failure to and/or improperly monitoring the treatment, practice or work of all doctors and/or other agents, workers, partners, principles, servants and/or employees responsible for treating and/or providing care to Ms. Koelsch, limited to the facts set forth in this Complaint; c. Failure to timely, properly and/or adequately select, train and supervise its doctors and/or other agents, workers, partners, principles, servants and/or employees -25- responsible for treating and/or providing care to Ms. Koelsch, limited to the facts set forth in this Complaint; d. Failure to timely, properly and/or adequately monitor the competency and the adequacy of the treatment, practice or work of members of its medical staff and/or other agents, workers, partners, principles, servants and/or employees responsible for treating and/or providing care to Ms. Koelsch, limited to the facts set forth in this Complaint; e. Failure to timely, properly and/or adequately have medical and surgical review procedures in place so that it could obtain knowledge regarding the performance of its doctors and medical staff, including the defendants herein as well as those other doctors, physician assistants, residents, interns, certified registered nurse practitioners, assistants and/or other agents, workers, partners, principles, servants and/or employees responsible for treating and/or providing care to Ms. Koelsch, limited to the facts set forth in this Complaint; f. Failure to timely, properly and/or adequately discharge those doctors, physician assistants, residents, interns, certified registered nurse practitioners, assistants and/or other agents, workers, partners, principles, servants and/or employees whose services and skills fell below the general recognized standards of acceptable medical services and/or skills, limited to the facts set forth in this Complaint; g. Improperly held itself out to plaintiffs as a proper full service facility and/or provider having all the necessary and professional staff, procedures and competence to perform complex medical procedures and/or treatments and/or -26- procedures as were to be performed on Ms. Koelsch, limited to the facts set forth in this Complaint; h. Failure to timely, properly and/or adequately train, supervise, fire and/or review agents/employees under defendants' supervision and/or control, limited to the facts set forth in this Complaint, given that defendant knew and/or reasonably should have known that said agents/employees were improperly and/or inadequately trained and/or supervised, and/or that said agents/employees were incapable of and/or were not properly and/or adequately performing the duties and responsibilities associated with their respective positions, limited to the facts set forth in this Complaint; I. Failure to timely, properly and/or adequately report and/or communicate Ms. Koelsch's condition, test results, pathology results, medical status and/or progress to appropriate individuals under the circumstances; J. Failure to timely, properly and/or adequately promulgate, abide by and/or enforce applicable rules, guidelines, protocols, and/or regulations under the circumstances including, but not limited to, those regarding the method and manner of diagnosing, assessing and treating breast masse es), suspected breast cancer, breast cancer biopsy or excision sites, and/or breast cancer; the recommendation, ordering, interpreting, reporting on, following up on, determining and/or documenting medical and family history, communications with other doctors, examination fmdings, pathology findings, radiology results, symptomology and test results in patients such as Ms. Koelsch; maintaining continuity of care; -27- communicating with other physicians regarding the patient's history, examination results, test results and pathology findings; and communicating treatment options and/or need for mastectomy and/or chemotherapy to patients such as Ms Koelsch; k. Increased the risk of harm to Ms. Koelsch as a result of defendant" s negligence and carelessness as set forth above; 1. Being vicariously liable for the acts and/or omissions of the individual defendants and, in that regard, paragraph 72 (a) through (v) of this Complaint. WHEREFORE, plaintiff demands judgment against the defendant, Oakwood Center Radiation Oncology, individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as this Honorable Court may deem just and fair. COUNT V NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PLAINTIFF JOHN F. KOELSCH V. ALL DEFENDANTS 77. Plaintiffs incorporate by reference paragraphs 1 through 76 inclusive, as iffully set forth herein at length. 78. At all times material hereto, plaintiff John F. Koelsch was the husband of Kristy E. Koelsch, deceased. 79. Plaintiff, John F. Koelsch, witnessed the aforesaid individual, joint, several and/or alternative negligence and carelessness of the defendants, and/or the immediate aftermath thereof. 80. As a direct and proximate result thereof, plaintiff suffered severe injuries and damages including, but not limited to emotional distress, depression, stress, nightmares, sleeplessness, headaches, nausea, flashbacks, bodily tremors, panic attacks, rapid heart beat, -28- profound depression, anxiety, and/or other physical manifestations, all to his great detriment and loss. 81. As a further direct and proximate result, plaintiff suffered and may forever continue to suffer great physical and emotional pain, suffering, anguish, embarrassment, humiliation, disability, and inconvenience, all to his great detriment and loss. 82. As a further direct and proximate result, plaintiff may into the future continue to suffer severe, prolonged emotional distress, depression, recurrent nightmares, stress, anxiety, nausea, sleeplessness, and headaches, all to his great detriment and loss. 83. As a further direct and proximate result, plaintiff suffered and may forever continue to suffer a loss oflife's pleasures, all to his great detriment and loss. 84. As a further direct and proximate result, plaintiff suffered and may forever continue to suffer a loss of earnings and earning capacity, all to his great detriment and loss. 85. As a further direct and proximate result, plaintiff suffered and may forever continue to suffer an inability to attend some or all of his everyday duties, jobs, hobbies, responsibilities and activities, all to his great detriment and loss. 86. As a further direct and proximate result, plaintiff was forced to expend and may forever continue to be forced to expend significant sums of money for medicine, medical care and treatment, and medical modalities in an effort to treat and cure his injuries and damages, all to his great detriment and loss. WHEREFORE, plaintiff, John F. Koelsch, demands judgment in his favor and against the defendants, individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as -29- this Honorable Court may deem just and fair. COUNT VI LOSS OF CONSORTIUM (THROUGH DATE OF DEATH OF KRISTY E. KOELSCH) PLAINTIFF JOHN F. KOELSCH V. DEFENDANTS 87 Plaintiff incorporates by reference paragraphs I through 86 inclusive, as if fully set forth herein at length. 88 At all times material hereto, Plaintiff, John F. Koelsch, was the husband ofKristy E. Koelsch, now deceased, and was entitled to the services, companionship, support, assistance, society, comfort, happiness and consortium of his wife. 89. As a direct and proximate result of Defendants' liability-producing conduct, prior to the death ofKristy E. Koelsch, Plaintiff, John F. Koelsch, was deprived ofthe services, companionship, support, assistance, society, comfort, happiness and consortium of his wife due to the injuries and damages she suffered as stated aforesaid, all to his great detriment and loss 90. As a further result of the injuries sustained by his wife, Plaintiff, John F. Koelsch, was been required to expend various amounts of money for medicine, medical treatment and/or medical modalities, in an attempt to cure his wife of her injuries and/or to lessen the severity of same. 91. As a further result of the injuries sustained by his wife, Plaintiff, John F. Koelsch, was required to expend various amounts of time and effort to obtain medical treatment for his wife and to perform, among other things, household duties, in an attempt to help cure his wife of her injuries and/or to lessen the severity of same. WHEREFORE, plaintiff, John F. Koelsch, individually, demands judgment in his favor -30- and against the defendants, individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as this Honorable Court may deem just and fair. COUNT VII INFORMED CONSENT/BA TTERY - SURVIVAL ACTION PLAINTIFF V. DEFENDANT, RICHARD J. DITLOW, JR., M.D. 92. Plaintiff incorporates by reference paragraphs 1 through 91 as iffully set forth herein at length. 93. Defendant, Dr. Ditlow, failed to properly and adequately instruct and advise Ms. Koelsch concerning the alternatives to, and the dangers, risks and complications attendant with the surgical and/or medical procedures and/or administration of radiation he performed upon her, and he therefore violated the doctrine commonly known as "informed consent." 94. As a direct result of defendant" s aforementioned failure, Ms Koelsch suffered those injuries and damages previously set forth herein at length. WHEREFORE, plaintiff demands judgment against defendant, Dr. Ditlow, individually jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as this Honorable Court may deem just and fair. COUNT VIII PLAINTIFFS V. DEFENDANTS 95. Plaintiff incorporates by reference paragraphs 1 through 94 inclusive, as if fully set forth herein at length. -31- 96. Plaintiff has in the past and/or may in the future have to incur medical bills and/or other financial obligations to secure and maintain care and treatment for the injuries and damages suffered by his wife and/or himself, all to plaintiffs' great detriment and loss. WHEREFORE, plaintiff, John Koelsch, individually and as Administrator of the Estate of Kristy E. Koelsch, deceased, demands judgment in their favor and against the defendants, individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together with interest, costs and such other relief as this Honorable Court may deem just and fair COUNT IX WRONGFUL DEATH PLAINTIFF, JOHN F. KOELSCH, AS ADMINISTRATOR OF THE ESTATE OF KRISTY E. KOELSCH V. DEFENDANTS 97. Plaintiffs incorporate by reference paragraphs 1 through 96 as if fully set forth herein at length. 98. Plaintiff, John Koelsch, as Administrator of the Estate of Kristy E. Koelsch, deceased, brings this action on behalf of the survivors/beneficiaries of the decedent under and by virtue of the Pennsylvania Wrongful Death Act, and claims all damages available pursuant to the Act as a result of the death ofKristy E. Koelsch due to the aforesaid negligence and carelessness of the defendants. WHEREFORE, John Koelsch, as Administrator of the Estate ofKristy Koelsh, deceased, demands judgment in his favor and against all defendants individually, jointly, severally and/or in the alternative, in an amount in excess of Twenty Five Thousand Dollars ($25,000.00), together -32- with interest, costs and such other relief as this Honorable Court may deem just and fair. Respectfully submitted, VILLARI, BRANDES & KLINE, P.c. By: <,I/;; ( {ltll {,cd' At Peter M. Villari, Esq. Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorneys for Plaintiffs Dated: Q ,y -0 Co -33- Dated: JURY DEMAND Plaintiffs hereby request a trial by jury as to all issues herein. Respectfully submitted, VILLARI, BRANDES & KLINE, P.c. By '~<):y C fJ..Nllff7lf..[) Peter M. Villari, Esq. Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorneys for Plaintiffs -34- VERIFICATION Theresa L. Giannone, Esquire, hereby states that she is counsel for plaintiff( s) in this action and verifies that the statements in the foregoing Complaint are true and correct to the best of her knowledge, information and belief and that this verification is made with knowledge, permission and consent ofplaintiff(s). Counsel takes makes this verification for the purpose of assuring timely filing of this pleading as plaintiff is not presently within this jurisdiction. The verification of the party-plaintiff(s) will be substituted at a later date The undersigned states that the statements herein are made subject to the penalties of 18 Pa. C S.A. S4904 relating to unsworn falsification to authorities. ..' ..J1"-'<'" . ". ,:_.;-- j-y! ( {L/A;I( (j;;I{J Theresa L. Giannone, Esquire Attorney for Plaintiff DateJ-g-o(j, VILLARI, BRANDES & KLINE, P.c. By Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, 4th Floor 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. at Defendants. I, Theresa L. Giannone, Esquire, attorney for Plaintiffs, hereby certifY that the Plaintiff's Complaint has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 8th day of F ebruarv , 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road CampHill,PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C 1200 Camp Hill Bypass, Suite 205 CampHill,PA 17011-3700 Michael Mongiello, Esquire Foulkrod Ellis, P.C. 2010 Market Street Camp Hill, PA 17011 John C. Farrell, Equire Marshall, Dennehey, Warner, Coleman & Goggin 1845 Walnut Street Philadelphia, PA 19103-4797 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street PO Box 1140 Lebanon, PA 17042-1140 Date: Februarv 8, 2006 VILLARI, BRANDES & KLINE, P.c. By: <-:2cY'# ( (lj/i" /{ c'i7A../) Theresa L Giannone, Esquire Attorney for Plaintiffs (' ( '"' , ~, , C{, -;::~ -.. " , ,-:::J " {, ( ,.-". t"-' . VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney LD. Nos.: 26875/59769/77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 A TTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - MEDICAL PROFESSIONAL LIABIUTV ACTION JOHN F. KOELSCH, ET AL. Ys. HaL Y SPIRIT HEALTH SYSTEM, ET AL. Docket No. 05-6320 JURY TRIAL DEMANDED CERTIFICATION OF SERVICE I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certify that a true and correct copy of the Plaintiffs First Request for Production of Documents directed to Defendant, Charles D. Evancho was served upon the below named counsel of record for Defendants by first-class mail, postage pre-paid on this 13th day of February, 2006: Michael Mongiello, Esquire Foulkrod Ellis, P.C. 2010 Market Street Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 B. Craig Black, Esquire McKissock & Hoffman, P.c. 2040 Linglestown Road, Suite 302 Harrisburg, PAl 711 0 Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Continued on next uaee... '" . ~ Dated: February 13,2006 Villari, Brandes & Kline, P.c. By: 'V~/'l ( (1 iICA/; czQ Peter M. Villari Paul D. Brandes Theresa L. Giannone Attorneys for Plaintiff ...,., ~> '- :-: '.... r ~ VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. Nos.: 26875/59769/77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JOHN F. KOELSCH, ET AL. vs. HOLY SPIRIT HEALTH SYSTEM, ET AL. Docket No. 05-6320 JURY TRIAL DEMANDED CERTIFICATION OF SERVICE I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certify that a true and correct copy of the Plaintiffs First Request for Production of Documents directed to Defendants, Holy Spirit Hospital, Holy Spirt Health System, and Holy Spirit Hospital of the Sisters of Christian Charity was served upon the below named counsel of record for Defendants by first- class mail, postage pre-paid on this 13th day of February, 2006: Michael Mongiello, Esquire Foulkrod Ellis, P.c. 20 10 Market Street Camp Hill, P A 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 1701 ] B. Craig Black, Esquire McKissock & Hoffman, P.c. 2040 Linglestown Road, Suite 302 Harrisburg, P A 17110 Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA l7011 Continued on next Daf!e... 'J By: Dated: February 13,2006 Villari, Brandes & Kline, P.c. yJ1lCa~~0 Peter M. Villari Paul D. Brandes Theresa L. Giannone Attorneys for Plaintiff -'11 --r: (.Ii ::'~ '-, .. _~l c JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased, Plaintiff v. HOLY SPIRIT HEALTH SYSTEM, . individually and/or doing business as Holy Spirit of the Sisters of Christian Charity . and/or doing business as Holy Spirit Hospital; HOLY SPI RIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHAR IT individually and/or doing business as Ho y Spirit Hospital; and HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, MD.; RICHARD J. DITLOW, JR., M.D. OAKWOOD CENTER RADIATION ONCOLOGY, Defendants ORIGINAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6320 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW JURY TRIAL DEMANDED I PRELIMINARY OBJECTIONS OF 0 KWOOD CENTER RADIATION ONCOLOGY TO PLAIN IFFS' COMPLAINT AND NOW, comes Defendant, Oakwood Center Radiation Oncology, by and through its counsel, McKissock & Ho Iman, P.C., and hereby file these preliminary objections to the Complaint 01 Plain '11, John F. Koelsch, individually and as the Administrator of Ihe Estate of Kristy E. Koelsch, deceased (hereinafter referred to collectively as "Plaintiffs") and aver as f 1I0ws: I I , 1. On or about February 8,12006, Plaintiffs filed a Complaint with the Court of Common Pleas of Cumberland C unty naming as one of several Defendants, Oakwood Center Radiation Oncology (" ovant" herein). 2. The gravemen of Plainti s' claims as set forth in the Complaint, allege that decedent, Kristy E. Koelsch, receiv d radiation treatment to her left breast and chest wall under the supervision 01 Co-Dele dant, Richard J. Ditlow, Jr., M.D., starting on or about February 15, 1999 through April 12, 1999. See ~~s 40 through 45 of Exhibit "A" which is incorporated for reference pur~oses only. , I I I 3. According to Plaintiffs' Complaint, on or about May 24, 2005 Kristy Koelsch died secondary to metastatic, invasive ductal carcinoma of the breast. 4. Defendant files these preliminary objections to Counts IV and V of Plaintiffs' Complaint in that said counts fail to state a claim upon which relief can be granted. In addition, Plaintiff has failed to comply with Pa.R.C.P.1028(a)(3) by making identification of the specific individuals that Plaintiff claims are agents, employees and/or representatives of Defendant, Oakwood enter Radiation Oncology. I. DEMURRER TO COUNT IV - N GLlGENCE/SURVIVAL ACTION - PLAINTIFF v. DEFENDANT OAKWOOD CE TER RADIATION ONCOLOGY 5. Moving Defendant, Oak ood Center Radiation Oncology, submits that the averments in Count IV, (~76 (a) thro gh (I)) attempt to set forth a claim arising under the doctrine of "corporate negligence" gainst Defendant, Oakwood Center Radiation Oncology. The specific averments f corporate negligence as set forth in the subparagraphs to paragraph 76 of Plaint ffs' Complaint are as follows: 76. The Plaintiffs' injuries an damages were caused by the individual, joint, several nd/or alternative negligence and carelessness of defend nt, Oakwood Center Radiation Oncology, acting as aforesai , which included the following: a. Failure to and/or improperly monitoring the qualifications of all docto s and/or other agents, workers, partners, principles, servant and/or employees responsible for treating and/or providing car to Ms. Koelsch, limited to the facts set forth in this Complaint; b. Failure to and/or improperly monitoring the treatment, practice or work of all doctors and/or other agents, workers, partners, princi les, servants and/or employees responsible for treating an or providing care to Ms. Koelsch, limited to the facts set forth i this Complaint; c. Failure to imely, properly and/or adequately select, train and supervis its doctors and/or other agents, workers, partners, princi les, servants and/or employees responsible for treating an lor providing care to Ms. Koelsch, limited to the facts set froth i this Complaint; d. Failure to imely, properly and/or adequately monitor the competency a d the adequacy of the treatment, practice or work of memb rs of its medical staff and/or other agents, workers, partners, p inciples, servants and/or employees responsible for treating an or providing care to Ms. Koelsch, limited to the facts set forth i this Complaint; 2 e. Failure to timely, properly and/or adequately have medical and surgical review procedures in place so that it could obtain knowledge regarding the performance of its doctors and medical staff, includin the defendants herein as well as those other doctors, physi ian assistants, residents, interns, certified registered nurse p actitioners, assistants and/or other agents, workers, partners, p inciples, servants and/or employees responsible for treating an or providing care to Ms. Koelsch, limited to the facts set forth i this Complaint; f. Failure to imely, properly and/or adequately discharge those doctors, ph sician assistants, residents, interns, certified registered nurse p actitioners, assistants and/or other agents, workers, partners, p inciples, servants and/or employees whose services and skills fell below the general recognized standards of acceptable me ical services and/or skills, limited to the facts set forth in this Co plaint; g. Improperly eld itself out to plaintiffs as a proper full service facility and/or pr vider having all the necessary and professional staff, proced res and competence to perform complex medical proce ures and/or treatments and/or procedures as were to be p rformed on Ms. Koelsch, limited to the facts set forth in this Co plaint; h. Failure to imely, properly and/or adequately train, supervise, fire and/ r review agents/employees under defendants' supervision an lor control, limited to the facts set forth in this Complaint, iven that defendant knew and/or reasonably should have kno n that said agents/employees were improperly and/or inadequat Iy trained and/or supervised, and/or that said agents/employees were incapable of and/or were not properly and/or adequat Iy performing the duties and responsibilities associated ith their respective positions, limited to the facts set forth in this omplaint; i. Failure to imely, properly and/or adequately report and/or communicate s. Koelsch's condition, test results, pathology results, medical s atus and/or progress to appropriate individuals under the circum tances; j. Failure to imely, properly and/or adequately promulgate, abide by and/or enforce applicable rules, guidelines, protocols, and/or regulation under the circumstances including, but not limited to, those re arding the method and manner of diagnosing, assessing and reating breast mass(es), suspected breast cancer, breast canc r biopsy or excision sites, and/or breast cancer; the reco mendation, ordering, interpreting, reporting on, following up n, determining and/or documenting medical and famiiy history, ommunications with other doctors, examination findings, pat ology findings, radiology results, symptomology and test res Its in patients such as Ms. Koelsch; maintaining continuity of care; communicating with other physicians regarding the p tient's history, examination results, test results and patholo y findings; and communicating treatment options and/or need for mastectomy and/or chemotherapy to patients su h as Ms. Koelsch; 3 k. Increased t~e risk of harm to Ms. Koelsch as a result of defendant's negligfnce and carelessness as set forth above; , I. Being vica iously liable for the acts and/or omissions of the individu I defendants and, in that regard, paragraph 72 (a) through (v) of this Complaint. 6. The Pennsylvania Supre e Court in the seminal case of Thompson v. Nasson Hospital, 527 Pa. 330, 591 A.2 703 (1991) adopted what has become known as the "corporate negligence" liability th ory under which a hospital is directly liable to a patient if it fails to uphold four non-deleg ble duties owed to a patient. 7. In Thompson, supra., th Pennsylvania Supreme Court established that those non-delegable duties fall into four (4) distinct and separate areas: "(1) A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) A duty to select and reta n only competent physicians; (3) A duty to oversee all persons who praclice medi ine within its walls as to patient care; (4) A duty to formulate, adopt and enforce adequ te rules and policies to ensure quality care for patients". Thompson, 591 A.2d at 707. 8. In announcing its holding in Thompson, our Pennsylvania Supreme Court held thai the "corporate hospital's role ,in the total healthcare of its patients" required hospitals to be held to a standard of clare separate and apart from the duties of the physicians who render treatment throuqh it. The Supreme Court further stated that in order to prove corporate negligence, Pla.intiff must show that the hospital "had actual or constructive knowledge" of the defect or 'procedures which created the harm and that the hospital's negligence was "a substantial factor in bringing about the harm". 9. The corporate negligerilce doctrine has been expanded by our Pennsylvania Superior Court to apply tei health maintenance organizations (Shannon v. McNultv. 718 A.2d 828 (Pa. Superior 1$98)). Other than Thompson and Shannon, the appellate courts of the Commonwealth' of Pennsylvania have not expressly expanded the application of the corporate negligent;e doctrine beyond hospitals and HMO's. 4 10. . Plaintiffs' Complaint at 1140 alleges that on or about February 19, 1999, Ms. Koelsch presented to Defendant, Dr. Ditlow and/or Oakwood, for evaluation regarding treatment of her breast with external beam radiation therapy. 11. In Paragraphs 46 through 49 of Plaintiffs' Complaint, Plaintiff alleges that decedent, Kristy Koelsch, failed to be advised with respect to the performance of a mastectomy, that a radiation boost be provided, the adminislration of adjuvant chemotherapy, lymph node sampling and/or resection, additional exploration or biopsies of the breast, despite knowledge or the absence thereof by Dr. Ditlow of the need for these additional measures. 12. Defendant, Oakwood Center Radiation Oncology, is a radiation oncology facility which provides radiation oncology treatments and related services to patients. Oakwood Center Radiation Oncology is not involved in the 'total healthcare needs of its patients". Moreover, Oakwood Center Radiation Oncology does not playa "gatekeeper" role in arranging or authorizing a patients access to healthcare. See, Milan v. American Vision Center, 34 F. Supp. 2d 279,1998 U.S. Dist., LEXIS 19074 (ED. Pa. October 19, 1998). 13. Outside the context of Thompson and Shannon, Supra., there have been no appellate court opinions which have expanded corporate negligence to other healthcare providers. 14. Several trial court opinions in Pennsylvania have limited corporate negligence theories to hospitals and HMO's. See, Brewer v. Geisinqer Clinic. Incorporated, 45 Pa. D&C 4'h 215 (2000); Wolf v. Penn State Geisinqer Clinic. Incorporated, 42 Pa. D&C 4'h 225 (1995); Dowhouer v. Judson, 45 Pa. D&C 4'h, 172 (2000); Refshifski v. Kraus, 1845 Civ. 1992, (Slip Opinion, C.P. Monroe County), September 8, 1995. Moreover, in the federal case of Milan v. American Vision Center, supra., the Eastern District Court refused to extend the doctrine of corporate negligence to an optometrist's office. 5 15. Plaintiff fails to allege anywhere in the Complaint that the Oakwood Center Radiation Oncology acted as a '10tal healthcare facility" in its relationship to decedent. 16. Plaintiffs' Complaint is defective in that Plaintiff has failed to aver that Oakwood Center Radiation Oncology "had actual or constructive knowledge of the alleged defects, deficiencies, or procedure which allegedly created the harm to decedent". 17. Defendants respectfully assert that the corporate negligence doctrine does not extend under the current jurisprudence of the Commonwealth of Pennsylvania to oncology treatment centers, specifically Oakwood Center Radiation Oncology. 18. For the above enumerated reasons, Defendants respectfully submit this Demurrer to the averments set forth in Count IV of Plaintiffs' Complaint seeking to extend liability under the doctrine of corporate negligence against moving defendant. WHEREFORE, Defendant respectfully requests that Count IV of Plaintiffs' Complaint be dismissed with prejudice in that Plaintiff has failed to assert a claim upon which relief can be granted. II. PRELIMINARY OBJECTION TO COUNT V OF PLAINTIFFS' COMPLAINT - FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 19. Paragraphs 1 through 18 of the foregoing Preliminary Objections are incorporated by reference as if more fully set forth at length herein. 20. In Count V of Plaintiffs' Complaint, Paragraphs 77 through 86, Plaintiff, John F. Koelsch, seeks to assert a claim for negligent infliction of emotional distress against all defendants. 21. In particular, in Paragraph 79 of Count V of Plaintiffs' Complaint, Mr. Keolsch avers as follows: "Plaintiff, John F. Koelsch, witnessed the aforesaid individual, joint, several and/or alternative negligence and carelessness of the defendants and/or the immediate aftermath thereof". 6 22. Under the law of the Commonwealth of Pennsylvania, the actual witnessing of a traumatic incident is required in order to sustain a cause of action for negligent conduct causing emotional distress. Tackett v. Encke, 509 A.2d 1210 (Pa. Superior 1986). 23. The contemporaneous observation of the conduct has been held to be an absolute requirement for recovery in a negligent infliction of a mental distress case. Mazzaaatti v. Everinaham, 491 A.2d 925 (Pa. Superior 1985), affirmed, 516 A.2d 672 (Pa.1986). 24. Similarly, in Hallidav v. Beltz, 514 A.2d 906 (Pa. Superior 1986). Parents who were in a hospital and sustained emotional distress while waiting for a child (who eventually died from surgery), was being operated upon, were denied a claim for negligent infliction of emotional distress because they did not view the specific negligent acts. 25. In Love v. Cramer, 606 A.2d, 1175 (Pa. Superior 1992), a court denied recovery ruling that a daughter had to actually witness a doctor's negligent failure to provide care to her mother as well as a resulting traumatic injury in order to state a claim. 26. As set forth in Plaintiffs' Complaint, Plaintiff does not contend that Plaintiff, John F. Koelsch, was physically present and actually witnessed the events giving rise to Oakwood Center Radiation Oncology's alleged negligent conduct in this matter. Nor does Plaintiff, John F. Koelsch, allege his contemporaneous presence during the alleged liability producing conduct of Richard Ditlow, M.D., the alleged employee of Oakwood. 27. Accordingly, Count V of Plaintiffs' Complaint seeking recovery for negligent infliction of emotional distress fails to state a claim upon which Plaintiffs' can recover under the current jurisprudence of the Commonwealth of Pennsylvania. 7 WHEREFORE, Defendant, Oakwood Center Radiation Oncology, requests this Honorable Court to enter an Order striking Count V from Plaintiffs' Complaint and dismissing said claim with prejudice. III. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE FOR INSUFFICIENT SPECIFICITY OF A PLEADING PURSUANT TO PA.R.C.P. 1028(a)(3). 28. Paragraphs 1 through 27 of the foregoing Preliminary Objections are incorporated by reference as if more fully set forth herein. 29. In 1]14 of Plaintiffs' Complaint, Plaintiff plead as follows: 14. At all times material hereto, Defendant, Oakwood, acted individually and/or by and through its parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein as well as those other doctors, nurses, technicians and/or therapists identified in its medical records pertaining to Plaintiffs, who were then and there acting within the course and scope of their employment, agency and/or authority. 30. Under Pennsylvania pleading practice, a Complaint must give the Defendants notice of the nature of the Plaintiffs' claims and the grounds upon which they rest, and must also formulate the issues by summarizing the facts essential to support the claim. Baker v. Renaos, 229 Pa. Superior 333,324 A.2d, 498 (1974). 31. Under Pennsylvania Rules of pleading, a complaint must allege facts which, at minimum, identify the alleged agent by name or appropriate description and set forth the agents' authority, and how the tortuous act of that agent falls within the defined scope of authority. Alumni Association. et. al. v. Sullivan, 369 Pa. Superior 596, 535 A.2d, 1095 (1987). 32. Without further facts to substantiate the identity of the alleged "parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein, as well as 8 those other doctors, nurses, technicians and/or therapists", Moving Defendant is without notice as to the nature of Plaintiffs' claims and the grounds upon which said claims are based. 33. Without further facts to substantiate Plaintiffs' allegations that Moving Defendants were "acting within the course and scope of their employment, agency and/or authority", Moving Defendants are without notice as to what Plaintiffs' claims are and the grounds upon which they are based. 34. Without further specification, the particulars of the matters addressed in Paragraphs 32 and 33, infra, Moving Defendants are unable to effectively comply with provisions of Pa.R.C.P. 1029(e)(1 )(relating to the specific admission or denial of identity of persons by whom a material act was committed and the agency or employment of that individua~. 9 WHEREFORE, Moving Defendant respectfully requests that this Honorable Court enter an Order striking '1114 of Plaintiffs' Complaint for insufficient specificity. Alternatively, Plaintiff should be directed to file a more specific pleading providing the deficient information. Respectfully submitted, McKissock & Hoffman, P.C. By: Dated:~ dIJ )0 ~ B.Cr I.D. .: 36818 Lau n M. Burnette, Esquire J.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Center Radiation Oncology 10 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Preliminary Objections of Defendant, Oakwood Center Radiation Oncology to Plaintiffs' Complaint upon the person(s) and in the manner indicated below, which seNice 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: Peter M. Viilari, Esquire Viilari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 ( Counsel for Plaintiff) Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hiil Bypass Suite 205 Camp Hiil, PA 17011 (Counsel for Holy Spirit Health System Holy Spirit Hospital of the Sisters of Christian Charity Holy Spirit Hospital) Lauralee Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hiil, PA 17011 (Counsel for Charles D. Evancho, M.D.) 11 Dated: djfJf7 }dp Michael C. Mongiello, Esquire Foulkrod Ellis 2010 Market Street Camp Hill, PA 17011 (Counsel for Richard J. Ditlow, Jr., M.D.) McKissock & Hoffman, P.C. By: Bac, .36818 La n M. Burnette, Esquire 1.0. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Center Radiation Oncology 12 .---' ~1 1 c., KRISTY KOELSCH and JOHN F. KOELSCH, h/w, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : No: 04-4744 v. : MEDICAL PROCESSIONAL LIABILITY ANGELA SOTO-HAMLIN, M.D., : ACTION SUSQUEHANNA BREAST CARE CENTER, HERITAGE MEDICAL : CIVIL ACTION - LAW GROUP, L.L.P., SUSQUEHANNA SURGEONS, LTD., P.c., STACY J. CASTALDI, D.O., JUDITH A. : JURY TRIAL DEMANDED JOZEFIAK, M.D., HERITAGE DIAGNOSTIC CENTER, and TRISTAN : ASSOCIATES, Defendants. : JOHN F. KOELSCH, Individually and as Administrator of the ESTATE OF KRISTY KOELSCH, Deceased, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. : DOCKET NO. 05-6320 HOLY SPIRIT HEALTH SYSTEM, Individually and/or doing business as HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Individually and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL, and CHARLES D. EVANCHO, M.D., and RICHARD J. DITLOW, JR., M.D., and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants. : JURY TRIAL DEMANDED STIPULATION FOR QUALIFIED PROTECTIVE ORDER AND NOW, this day of , 2006, the above- captioned parties by and through their counsel of record, hereby agree and stipulate that the attached Qualified Protective Order is hereby approved throughout the aforementioned litigation. Date: Date: Date: '1.-~ '1-1- \ 0& By: Date: By: By: Peter M. Villari, Esquire Attorney for Plaintiff By: Wiley P. Parker, Esquire Attorney for STACY J. CASTALDI, D.O., JUDITH A. JOZEFIAK, M.D. and TRIS SOCIA TES ire LA SOTO-HAMLIN, SQUEHANNA BREAST ER Thomas M. Chairs, Esquire Attorney for HOLY SPIRIT HEALTH SYSTEM, Individually and/or doing business as HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Individually and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL that the attached Qualified Protective Order is hereby approved throughout the aforementioned litigation. Date: Date: Date: By: Date: By: By: Peter M. Villari, Esquire Attorney for Plaintiff By: Wiley P. Parker, Esquire Attorney for STACY J. CASTALDI, D.O., JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES Craig A. Stone, Esquire Attorney for ANGELA SOTO-HAMLIN, M.D. and SUSQUEHANNA BREAST CARE CENTER ~/.> ~! /~/7 i;l! / ~- Thoma?M: Chair~:-Esquire Attorney for HOLY SPIRIT HEALTH SYSTEM, Individually and/or doing business as HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Individually and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL Date:~Cf Date: L\1(,\0(, Date: By: PL La alee B. Baker, Esquire torney for CHARLES D. EVANCHO, M.D. By: /'It (/;1/ Michael C. Mongiello, Esquire Attorney for RICHARD J. DITLOW, JR., M.D. By: B. Craig Black, Esquire Attorney for OAKWOOD CENTER RADIATION ONCOLOGY Date: Date: Date: By: By: By: Lauralee B. Baker, Esquire Attorney for CHARLES D. EVANCHO, M.D. Michael C. Mongiello, Esquire Attorney for RICHARD J. DITLOW, JR., M.D. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing STIPULATION FOR QUALIFIED PROTECTIVE ORDER, on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the 9th day of March, 2006, and addressed as follows: Peter M. Villari, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 Michael C. Mongiello, Esquire Foulkrod Ellis, P.C. 2010 Market Street Camp Hill, PA 17011 B. Craig Black, Esquire McKissack & Hoffman, P.C. 2040 Linglestown Road - Suite 302 Harrisburg, PA 17110 Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 MARGOLIS EDELSTEIN By: Vicki A. Bolinger, RP 0. QjbLU~" VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Sasha 1. Azar, Esquire Attorney J.D. #26875, #59769 & #77148, #94587 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Sasha L. Azar, Esquire, attorney for Plaintiff, hereby certify that Plaintiffs Response in Opposition to the Preliminary Objections of Defendant Oakwood Center Radiation Oncology to Plaintiffs Complaint has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 17th day of March, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.c. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 , ~ ~.._,'. . :::,.,---, ----~. f'-' o i."J -on --, -i~ -n i-i""f':' --", ,-.!.~ . ';.'.,'....... ~ , '-",-,.-, ::.,,' -'0 -,:~ f~;~ __J, ~~ '~-:'? (J; KRISTY KOELSCH and JOHN F. KOELSCH, hJw, RtCEIV':D,/,~ J 5 200y : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs : No: 04-4744 v. : MEDICAL PROCESSIONAL LIABILITY ANGELA SOTO-HAMLIN, M.D., : ACTION SUSQUEHANNA BREAST CARE CENTER, HERITAGE MEDICAL : CIVIL ACTION - LAW GROUP, L.L.P., SUSQUEHANNA SURGEONS, LTD., P.c., STACY J. CASTALDI, D.o" JUDITH A. : JURY TRIAL DEMANDED JOZEFIAK, M.D., HERITAGE DIAGNOSTIC CENTER, and TRISTAN : ASSOCIATES, Defendants. JOHN F. KOELSCH, Individually and as Administrator of the ESTATE OF KRISTY KOELSCH, Deceased, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : CIVIL ACTION - LAW vs, : DOCKET NO. 05-6320 /' HOLY SPIRIT HEALTH SYSTEM, Individually and/or doing business as HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY, Individually and/or doing business as HOLY SPIRIT HOSPITAL, and HOLY SPIRIT HOSPITAL, and CHARLES D, EVANCHO, M.D., and RICHARD J. DITLOW, JR., M.D., and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants. : JURY TRIAL DEMANDED QUALIFIED PROTECTIVE ORDER Pursuant to the Stipulation for Qualified Protective Order, the Court hereby enters this Qualified Protective Order pursuant to the Privacy Rules implementing the HIPAA at 45 C.F.R. S164.512(e). 1. In response to a discovery request or subpoena which is served under the Rules of Civil Procedure, the parties to the aforementioned litigation and/or their counsel are permitted to obtain protected health information (hereinafter "PHI") from any health care provider/covered entity (hereinafter "covered entity") who rendered treatment to KRISTY KOELSCH, Deceased, or made payment for treatment on Decedent's behalf. 2. The parties ancIJor their counsel are prohibited from using any PHI obtained with this Qualified Protective Order for any purpose other than the aforementioned litigation. 3. At the end of the aforementioned litigation (including any and all appeals), the parties ancIJor their counsel will either return the PHI to the covered entity or destroy the PHI (including all copies made). 4. In conjunction with the aforementioned litigation, the parties and/or their counsel are permitted to redisclose PHI to persons ancIJor entities including the following: any party involved in either litigation, counsel for any party involved in either litigation, non-expert witnesses, expert witnesses, counsel for any non-party to the aforementioned litigation, the insurance carriers for any party to the aforementioned litigation, the Court, and any other person permitted by other order of this Court. 5. Any person or entity who receives PHI pursuant to paragraph 4 of this Qualified Protective Order is prohibited from using the PHI for any purpose other than the aforementioned litigation. 6. Any person or entity who receives PHI pursuant to paragraph 4 of this Qualified Protective Order must return the PHI to the covered entity or Date: destroy the PHI (including all copies made) at the conclusion of the aforementioned litigation. 7. This Qualified Protective Order does not suspend or affect a party's rights in litigation guaranteed by the Pennsylvania Rules of Civil Procedure or Local County Rules. /) ~ ~~cfth ?~ ,o\Y ~~ o VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giarmone, Esquire Attorney LD. Nos.: 26875/59769/77148 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased Docket No. 05-6320 Plaintiff, v. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, M.D., et al. Defendants. PLAINTIFF'S RESPONSE IN OPPOSITION TO THE PRELIMINARY OBJECTIONS OF DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY TO PLAINTIFF'S COMPLAINT Plaintiff, John F. Koelsch, individually and as Administrator of the Estate of Kristy E. Koelsch, deceased, by their attorneys, Villari, Brandes & Kline, P.C., files the within Response in Opposition to the Preliminary Objections of Defendant Oakwood Center Radiation Oncology, to Plaintiffs Complaint and in support thereof, Plaintiff asserts the following: 1. Admitted. By way of further response, Plaintiff initiated this suit against defendants by filing a Writ of Summons on December 9,2005. 2. Denied. While the facts set forth by defendant in paragraph 2 of its objection are contained in Plaintiffs Complaint, the cited facts alone do not provide the "graveman" of Plaintiffs claims as defendant asserts. By way of further response, Plaintiffs Complaint is a document which speaks for itself. 3. Admitted. By way of further answer, Plaintiff's Complaint is a document which speaks for itself. 4. Denied as a conclusion oflaw to which no responsive pleading is required. Notwithstanding, it is denied that Plaintiff has failed to comply with certain applicable rules of procedure. It is further denied that Plaintiff has failed to state a claim for which relief can be granted. 5. Denied as a conclusion oflaw to which no responsive pleading is required. By way of further answer, Plaintiffs Complaint is a document which speaks for itself. Notwithstanding, subparagraph (I) of paragraph 76 sets forth a claim for vicarious liability, not corporate negligence. Defendant does not argue that a vicarious liability claim is improper and provides no basis to dismiss subparagraph (I). 6. Denied as a conclusion oflaw to which no response is required. 7. Denied as a conclusion oflaw to which no response is required. 8. Denied as a conclusion oflaw to which no response is required. 9. Denied as a conclusion of law to which no response is required. By way of further response, and as will be set forth more fully in Plaintiffs Brief in Opposition to defendant's preliminary objections, although Pennsylvania appellate courts have not specifically extended the holding of Thompson vs. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) beyond hospitals and HMOs, it has always recognized direct liability of all types of corporations for negligent supervision, negligent hiring and the like. See M Yee v. Roberts, 878 A.2d 906, 914 (Pa. Super. 2005). Furthermore, the fact that Pennsylvania appellate courts have extended the holding of Thompson beyond hospitals demonstrates that under the right circumstances, the appellate courts of this Commonwealth will extend the Thompson holding to non-hospital corporations. 10. Denied generally as Plaintiffs Complaint is a writing which speaks for itself. 11. Denied generally as the Plaintiff's Complaint is a writing which speaks for itself. 12. Denied as a conclusion oflaw to which no response is required. By way of further response, and as will be set forth more fully in Plaintiffs Briefin Opposition to defendant's preliminary objections, it is denied that a plaintiff must establish that a facility is involved "in the total healthcare needs of its patients" or acts as a "gatekeeper" to establish direct liability. See M. Yee v. Roberts, 878 A.2d 906, 914 (Pa. Super. 2005). 13. Denied as a conclusion oflaw to which no response is required. By way of further answer, and as will be set forth more fully in Plaintiff's Brief in Support of his Opposition to the defendant's preliminary objections, the Superior Court in Yee v. Roberts, 878 A.2d 906, 914 (Pa. Super. 2005), recognized that a professional medical practice can be held directly liable for negligent hiring and supervisions of its physicians. 14. Denied as a conclusion oflaw to which no response is required. As will be set forth more fully in Plaintiffs Brief in Support of his Response in Opposition to defendant's preliminary objections, there are many trial court decisions denying objections by non-hospital healthcare facilities to claims of corporate negligence. 15. Denied as a conclusion oflaw to which no response is required. By way of further answer, and as will be set forth more fully in the Plaintiff's Brief in Support of his Opposition to the defendant's preliminary objections, regardless of what label defendant uses to describe its practice and services, defendant breached its non-delegable duties for which it can be held directly liable under Pennsylvania law. Yee v. Roberts, 878 A.2d 906, 914 (Pa. Super. 2005). Defendant can also be vicariously liable for the negligence of its employees. 16. Denied as a conclusion oflaw to which no response is required. By way of further response, Plaintiff does indeed allege defendant had knowledge of the certain defects or deficiencies that created the harm. At paragraph 76(h), Plaintiff alleges defendant failed to "train, supervise, fire and/or review agents/employees under defendants' supervision and/or control, limited to the facts set forth in this Complaint, given that defendant knew and/or reasonably should have known that said agents/employees were improperly and/or inadequately trained and/or supervised, and/or that said agents/employees were incapable of and/or were not properly and/or adequately performing the duties and responsibilities associated with their respective positions, limited to the facts set forth in this Complaint." (emphasis added). Additionally, and as will be set forth more fully in Plaintiffs Brief in Support of his Response in Opposition to the Preliminary Objections of defendant, constructive knowledge can be inferred from the circumstances of negligence. 17. Denied as a conclusion oflaw to which no response is required. By way of further answer, as will be set forth more fully in Plaintiff's Brief in Support of his Response in Opposition to the defendant's preliminary objections, and as set forth in paragraph 13 above, Yee v. Roberts, recognized that a professional medical practice can be held directly liable for, among other things, negligent hiring and superviSIOn 18. Denied as a conclusion oflaw to which no response is required. By way of further response, for the reasons set forth herein and as will be set forth more fully in Plaintiffs Brief, defendant has not demonstrated that the law says with certainty that no claim for direct liability can be maintained against Oakwood Center and, therefore, defendant's preliminary objection should be overruled. Furthermore, Count IV also sets forth a vicarious liability claim. Defendant has not set forth any objection regarding the vicarious liability claim. 19. Plaintiff incorporates his responses to paragraphs 1 through 18 as though fully set forth herein. 20. Admitted. By way of further answer, Plaintiff s Complaint is a writing which speaks for itself. 21. Admitted. 22. Denied as a conclusion oflaw to which no response is required. 23. Denied as a conclusion oflaw to which no response is required. 24. Denied as a conclusion oflaw to which no response is required. 25. Denied as a conclusion oflaw to which no response is required. 26. Denied generally as Plaintiff's Complaint is a document which speaks for itself. 27. Denied as a conclusion oflaw to which no response is required. By way of further answer, defendant ignores that in paragraph 79, plaintiff alleges that he "witnessed the aforesaid individual, joint, several and/or alternative negligence and/or carelessness of defendants and/or the immediate aftermath thereof." Thus, Plaintiff does allege he witnessed moving defendant's negligence. If defendant is not satisfied with the specificity of this allegation, it should seek a more specific pleading, not to strike the entire negligent infliction of emotional distress count. Furthermore, and as will be set forth more fully in Plaintiffs' brief in opposition to the defendants' preliminary objections, learning his wife had metastatic cancer and had a grave prognosis constituted a discrete and identifiable traumatic event, at which time plaintiff immediately realized defendants had been negligent. This is sufficient to establish a claim for negligent infliction of emotional distress even though the physicians' negligence may not have taken place at the time of actual injury. See Love v. Cramer, 414 Pa. Super. 231, 235, 606 A.2d 1175, 1177(1992), See also Krvsmalski bv Krvsmalski v. Tarasovich, 424 Pa. Super. 121, 131, 622 A.2d 298, 303 (1993) ("to deny appellant's claim solely because she did not see the precise moment of impact would ignore the plain reality that the entire incident produced the emotional injury")( emphasis in original). 28. Plaintiff incorporates his responses to paragraphs 1 through 27 as though fully set forth herein. 29. Admitted. By way of further answer, Plaintiffs Complaint is a writing which speaks for itself. 30. Denied as a conclusion of law to which no response is required. By way of further answer, and as will be stated in greater detail in the Plaintiffs Brief in Support of his Response in Opposition to the defendants' preliminary objections, the allegations of Plaintiffs Complaint are stated in a concise and summary form. The law in this Commonwealth is clear: "it is not the function of the Complaint to be an all-inclusive narrative of events underlying the claim, A plaintiff need only plead the material facts necessary to sustain a recovery, which at the same time, enables the defendant to defend." General State Authoritv v. Lawrie & Green, 24 Pa. Cmwlth. 407, 356 A.2d 851 (1976). Accordingly, the pleading should define the issues and give notice to the opposing party of a claim against which he or she will be required to defend. Com.. Dept. ofTransp. v. Shiplev Humble Oil Co., 29 Pa. Commw. 171, 173,370 A.2d 438, 439 (1977). Plaintiffs Complaint is sufficient to apprise the defendant of the Plaintiffs theories ofliability against the defendant and, therefore, defendant's Preliminary Objections should be denied. 31. Denied as a conclusion of law to which no response is required. By way of further response, Plaintiff identifies the moving defendant"s agents. 32. Denied as a conclusion oflaw to which no response is required. 33. Denied as a conclusion oflaw to which no response is required. By way of further answer, moving defendant provided only a partial citation of the paragraph which identified its agents and ignores other paragraphs of the Complaint, which when read together fully informs defendant of the identity of its alleged agents. Plaintiff identifies moving defendant"s agents as "the other defendants identified herein as wen as those other doctors, nurses, technicians and/or therapists identified in its medical records pertaining to plaintiffs, who were then and there acting within the course and scope of their employment, agency and/or authority." The only "other defendant" identified in the Complaint associated with moving . defendant is Dr. Dillow. Thus, defendant cannot credibly argue it does not know which "other defendant" is alleged to be its agent. Furthermore, defendant is in exclusive possession of its medical records pertaining to plaintiff s decedent, Mrs. Koelsch and her radiation treatment from February 15, 1999 through April 12, 1999. It is clear from Plaintiffs Complaint that he is alleging negligence by defendant and its agents during this discrete time period (indeed defendant identifies this time period in paragraph 2 of its objections). Thus, defendant can easily determine what other physicians, nurses or technicians, if any, were involved in plaintiffs care at its facility during that time. Alternatively, if defendant contends Plaintiff should investigate to determine the full identity of each of defendant's agents, Plaintiff respectfully requests that the Court grant Plaintiff]eave to conduct discovery to identify defendant's agents and, thereafter, amend the complaint. 34. Denied as a conclusion of]aw to which no response is required. WHEREFORE, Plaintiffs respectfully request this Honorable Court to overrule the Preliminary Objections of Defendant. Respectfully submitted, Villari, Brandes & Kline, P.C. c:yI;( ~ -f Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa Giannone, Esquire Counsel for Plaintiffs ,.0 c) C'- ., :',. :\;::: So N o ='-' ~~;... '~r'1 ::rt.,., (np r~ ;\..1 ~- ~;1 -'~t) /'~1rn ~~~ "',U ',,<: t;? 01 --- VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. at Defendants. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS, HOLY SPIRIT HOSPITAL AND/OR DR. EVANCHO, TO PRODUCE SURGICAL PATHOLOGY SLIDES PERTAINING TO KRISTY KOELSCH, DECEASED Plaintiff, by his attorneys, Villari, Brandes & Kline, P.C., file the within Motion to Compel Defendants, Holy Spirit Hospital and/or Dr. Evancho, to Produce of Surgical Pathology Slides and in support thereof, Plaintiffs assert the following 1. This is a medical negligence case arising out of the defendants' failure to diagnose and/or properly treat Kristy Koelsch's breast cancer, to which she ultimately succumbed and died in May of 2005. 2. The Defendants in this action include Dr. Evancho, a pathologist who reviewed surgical pathology specimens for a wide excision surgery performed on Mrs. Koelsch's breast on January 28, 1999 at Holy Spirit Hospital; Dr. Ditlow, a radiation oncologist who provided radiation treatment to Ms Koelsch in ] 999 following the wide excision; and the employer of each defendant-physician. 3. This action is related to another action pending in this Court at Docket No. 04- 4744 against, among others, Dr. Soto-Hamlin (Mrs Koelsch's breast surgeon), Drs. Jozefiak and Castaldi (radiologists who interpreted certain breast studies) and the employers of the said defendants. 4. On or about February 13, 2006, plaintiff served a Request for Production upon defendants Holy Spirit Hospital and Dr. Evancho requesting all surgical pathology specimen blocks and/or slides for Mrs. Koelsch from January 28, 1999 through May of2005, as well as all documents related to the pathology specimens A true and correct copy of the Request for Production with transmittal letter is attached hereto as Exhibit "A." 5. On or about February 27, 2006, counsel for defendant Holy Spirit Hospital contacted a paralegal in the offices of plaintiff's counsel and advised that he would not produce the original pathology specimen blocks or slides. 6. On or about February 28,2006, plaintiff's counsel wrote to defense counsel to determine whether defendant was in fact refusing to produce pathology slides and to ask him to reconsider. Plaintiff's counsel specifically indicated in the letter that plaintiff would initially accept the pathology slides (rather than specimen blocks) and that the slides would be returned, intact, to the Hospital following review. A true and correct copy of the letter dated February 28,2006 is attached hereto as Exhibit "B." 7. To date, plaintiff has not received any response to the letter of February 28th and has not received a formal response to the Request for Production of Documents by either defendant 8. Defendants have absolutely no reasonable basis to refuse to provide the surgical pathology slides to plaintiff the pathology slides contain physical specimens from Mrs. Koelsch's own body and there is no privilege, confidentiality right or rule that allows defendants to withhold the pathology slides from plaintiffs 9. To the contrary, Pennsylvania Statutes and case law are well established that a hospital must promptly turn over a patient's original medical records and studies (such as x-ray films) for purposes oflitigation. See 28 Pa. Code 9115.28; 42 Pa. C.SA 6159; Clouser v. Johns Manville Corporation, 48 Pa. D. & C.3d 667, 668-69 (1988). 10. According to 28 Pa. Code 911528, a patient is entitled to his or her original medical records and films for, among other things, "purposes of resolving an issue in dispute." 11. Upon request, a patient must be provided with the records within thirty (30) days. 42 Pa.C.SA 96159 12. Pennsylvania Common Pleas Courts have held that a hospital is bound to provide access to a patient's records and films for purposes of further diagnosis or for litigation. Clouser v. Johns Manville Corporation, 48 Pa. D.&C.3d 667 (C.c.P. Phila. 1988). 13. Given that they are not just original records, but pieces of Mrs. Koelsch's body, the surgical pathology specimens of Mrs. Koelsch most certainly fall into the types of records required to be turned over pursuant to the Pennsylvania Code and Clouser, supra. 14. It should be noted that defendants voluntarily, and with no preconditions, produced pathology slides for Mrs Koelsch's January 11, 1999 biopsy procedure prior to initiation of this litigation 15. Defendants have no legitimate objection to producing the pathology slides based on a concern that the pathology slides will be lost or damaged. 16. Plaintiff has agreed to return the pathology slides to defendants, intact In the highly unlikely event a slide was lost or damaged (plaintiff's counsel carefully tracks the exchange of pathology slides and same are merely viewed by experts, not tampered with in any way), defendants have the original specimen blocks from which to create new slides. 17. It is crucial for plaintiff to obtain the original pathology slides to obtain expert review and opinion and to file Certificates of Merit. Based on a review of the pathology reports, plaintiff's expert indicates that a meritorious claim for professional negligence may exist, but that the original pathology slides must be reviewed before said expert can reach sufficient opinions and conclusions to provide an appropriate statement of merit under Pa. R.C.P. 1042.3. 18. Any suggestion by defendants that plaintiff's pathology expert should come to defendant Hospital to perform a review of the pathology slides is merely an inappropriate attempt by defendants to discover the identity of plaintiff's Certificate of Merit expert and to prejudice plaintiff. 19. The Pennsylvania Rules of Civil Procedure and case law governing Certificates of Merit specifically provide that a defendant is on(v permitted to discover the identity of plaintiff's Certificate of Merit expert if that defendant is dismissed from the case or obtains a verdict (even then, plaintiff does not have to reveal the identity or the statement of the expert until after the case is resolved as to all defendants) See e.g., Pa.RCP 1042.3 and 4003.5. 20. Furthermore, it would be cost prohibitive and unfairly prejudicial to plaintiff and his expert to require the expert to travel to defendant Hospital to review the pathology slides. 21. In refusing to produce original pathology slides, defendants ignore the plain reality that original pathology slides are routinely and voluntarily released to patients for medical care and to plaintiffs in all types of medical malpractice cases. 22. Plaintiff will be unfairly prejudiced and irreparably harmed if the requested original pathology slides are not produced to plaintiff for review by his expert. 23. Based upon the foregoing, plaintiff respectfully requests the Court compel the Defendant to produce the original pathology slides and documents responsive to the plaintiff's Request for Production. WHEREFORE, plaintiff respectfully requests that this Honorable Court grant their Motion to Compel and enter and enter an order in the form attached hereto VILLARI, BRANDES & KLINE, PC Dated March 27, 2006 By: yML~ Theresa L. Giannone, Esquire Attorney for Plaintiffs ~ Villari, Brandes & Kline, P.C. Lawyers Peter M. Villari " PaulO. Brandes> David B. Kline co Richard M. Wiener 0 Theresa L Giannone 0 Heather L Durrant 0 Deanna K. Tanner " Linda M. Eckert ANC,BSN D Of Counsel Oavid M. Hollar + * PABarMember o PA. NJ Bar Member + PA. CO Bar Member > PA, NJ, NY Bar Member = PA. NY, MO, Bar Member, lLM in Trial Advocacy o NUlsePara\egal February 13, 2006 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 Re: Koe/sch v. Ho/y Spirit, et. a/. Cumber/and County C.C.P., No, 05-6320 Our File No. 210270 Dear Mr. Chairs: Enclosed please find Plaintiff's First Request for Production of Documents Addressed to Defendants, Holy Spirit Hospital, Holy Spirit Health System, and Holy Spirit Hospital of the Sisters of Christian Charity. Thank you for your courtesy. TLG:rmk Enclosure cc: Michael C. Mongiello, Esquire (w/enc.) Laurel Baker, Esquire (w/enc.) Craig Black, Esquire (w/enc.) Very tr~uy y urs, .....--. .,~ <- .'~ T~~sa L. Giannone I EXHIBIT A 8 Tower Bridge. 161 Washington Street, Suite 400' Conshohocken, PA 19428 (610) 729-2900' (610) 729-2910 Fax www.Villaril>.w.com Philadelphia, PA " MarItan, NJ . Harrisburg, PA. Hazelton, PA ~ Villari, Brandes & Kline, P.C. Lawyers Peter M. Villari . Paul D. Brandes> David B. Kline ~ Richard M. Wiener 0 Thsfesa l. Giannone 0 Heather l. Durrant 0 ...... .. linda M. Eckert RNe, BSN 0 Of Counsel David M. Hollar + . ?A Bar Member o PA. NJ Bar Member + PA, CO Bar Member > PA, NJ. NY Bar Member = PA, NY. MO, Bar Member; ll.M in Trial Advocacy o Nurse Paralegal February 28, 2006 VIA FACSIMILE & FIRST CLASS MAIL Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011 Re: Koe/sch v. Ho/y Spirit, et. at. Cumber/and County C.C.P., No, 05-6320 Our File No. 210270 Dear Mr. Chairs: I have been advised by my paralegal that you indicated during a telephone discussion yesterday afternoon that you are not inclined to release the slides or blocks requested in Plaintiff's First Request for Production of Documents Addressed to Defendants, Holy Spirit Hospital, Holy Spirit Health System, and Holy Spirit Hospital of the Sisters of Christian Charity. While we do not necessarily require the blocks at this juncture, we have every right to have the pathology slides reviewed. Although you expressed some concern about having multiple sets of slides being reviewed, we would like to have our experts review the actual slides reviewed by Dr. Evancho and/or other pathologists at Holy Spirit. Obviously, we will not damage or alter the slides and would return them to you following review. It should be noted that we were provided the slides from the 1/11/99 procedure with no opposition whatsoever. Please contact me upon receipt of this letter to advise if I have misunderstood your position regarding the pathology slides and to discuss the matter further. EXHIBIT J ~ B Tower Bridge' 161 Washington Streel, Sui.. 400' Conshohocken, PA 19428 (610) 729,2900' (610) 729-2910 Fax www.VillariLaw.com Philadelphia, PA . Marlton, NJ . Harrisburg, PA . Hazelton, PA " Ms. Chairs February 28, 2006 Page 2 I would rather not resort to motions practice if it can be avoided. Very truly Y9.urs, ~~ Theresa L. Giannone TLG:rmk cc: Lauralee B. Baker, Esq. Craig Stone, Esq. Michael C. Mongiello, Esq. Wiley Parker, Esq. Craig B. Black, Esq. William Mundy, Esq. (via first class mail only) " Villari, Brandes & Kline, P. C. 8 Tower Bridge 161 Washington St., Ste. 400 Conshohocken, PA 19428 Phone-610-729-2900 FAX 610-729-2910 FAX NO: ;;? /2- 8/0 {., , , v, /~!/ ~ ,:/'1 TOTAL NUMBER OF PAGES d.....INCLUDING COVER SHEET. bn ('hdlr,C; {sg, , FROM: '111 - 93/- y~&:)jDATE: /11e1scA /hP'\ft;c.c 67t:CIMr?U . cS'b' TO: RE: In case of any problem concerning this transmission, please caU 610-729-2900. Ac"1Y ADDITIONAL INFORMATION s:e.e q t/rd~d re.du. !2: a /1 k';;-- g Reply requested. a Urgent! a Routine CONFIDENTIALITY NOTE: The information contained in this facsimile message is privileged and confidential information only for the use of the individual or entity named. If tbe reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this telecopy is strictly prohibited. If you have received this telecopy in error, please immediately notify us by telephone and return the original message to us at the address above via the United States Postal Service. Thank you. '0 VILLARI LAW . , ** Transm t Conf_Report ** P 1 Feb 28 2006 9:38 Fax/Phone Number Mode Start Time Page Result Note 17177314803 NORMAL 28, 9:38 0'31" 3 # 0 K Villari, Brandes & Kline, C. 8 To....- Bridge 161 WUblD8lOD St., Sil. 400 ColWloboclctD, PA 19428 PboDe-411l-729-2900 FAX 610-7294910 TO: '"1m C~"'''~ ~ ' tRaM: FAX NO: 9/7- 9-3J- ~3DATEl RE: ~ TOTAL NUMBER OF PAGES ~ INCLIJDING CO GIU?-?I"'t-J! &8- ID case of IDY problem coDetrainalbls t\"'lDll_OD, please..U 10-7Z9.2900. A!'IY ADDITIONAL INFORMATION , g Reply "'quested. a Urll"DtJ a Routine CONFtDENTW.lTY NOTE. The laformalloD COlltaloed Ia f.c;slmlle _ge is prlvUeJed .nd coulldeDtlallaformatioll ollly tor the use of the Ia vldu.1 or eJ1lity named. If tbe reader of this messall" Is 1I0t the IIlteDded recipient, you.re ereby 1I0tltled that any dissemination, clIslrlbulloD or copy oUbIs teIecopy II llrictly prohlb . If you have rttei.ed this teleeopy w eM'Or, please Wuoedlately ootlly us by telepbo aDd ",tum the original m....g. to us altb. address abo.e via tbe VJlited Stites Postal ioe. Thank you. to '-, '.::f1 ::1 -;"":. ,.-,.-' :::,:') ;-,) ...u .~:- -' ....-,:". (,) VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Sasha L. Azar, Esquire Attorney J.D. #26875, #59769 & #77148, #94587 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRJT HEALTH SYSTEM, et. a!. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certify that Plaintiff's Motion to Compel Defendants, Holy Spirit Hospital and/or Dr. Evancho, to Produce Surgical Pathology Slides Pertaining to Kristy Koelsch, Deceased has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 28th day of March, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill,PA 17011-3700 . . Michael Mongiello, Esquire Foulkrod Ellis, P.c. 20 I 0 Market Street Camp Hill, PA 17011 William Mundy, Esquire McKissock & Hoffman Goggin 1818 Market Street 131h Floor Phi ladelphia, P A 19103 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PAl 7110 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 VILLARI, BRANDES & KLINE, P.c. By: ~w ~~?{j)_ Theresa L. Giannone, Esquire Attorney for Plaintiff :! '-'.r-; ,-, ~'\~j --~~, ';~,) l,,!:) c..,~ -~ . JOHN F. KOELSCH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HOL Y SPIRIT HEALTH SYSTEM, et a!., Defendants NO. 05-6320 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of April, 2006, upon consideration of Plaintiffs Motion To Compel Defendants, Holy Spirit Hospital and/or Dr. Evancho, To Produce Surgical Pathology Slides Pertaining to Kristy Koelsch, Deceased, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 15 days of service. BY THE COURT, Peter M. Villari, Esq. Paul D. Brandes, Esq. Theresa L. Giannone, Esq. 8 Tower Bridge Suite 400 161 Washington Street Conshohocken, P A 19428 Attorney for Plaintiff Lauralee B. Baker, Esq. 3510 Trindle Road Camp Hill, PA 17011 r /}vI.~..JL-z ,-/-0)- C& J ---I- :.."~ -,.J_ Thomas M. Chairs, Esq. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 Michael Mongiello, Esq. 2010 Market Street Camp Hill, PA 011 William Mundy, Esq. 1818 Market Street 13th Floor Philadelphia, PA 19103 Wiley P. Parker, Esq. 927 Willow Street P.O. Box 1140 Lebanon, P A 17042-1140 B. Craig Black, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Craig Stone, Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 :rc ... . , VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. a!. Defendants. PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO OBTAIN AND FILE CERTIFICATES OF MERIT AGAINST DEFENDANTS Plaintiff, by his attorneys, Villari, Brandes & Kline, P.C., file the within Motion for an Extension of Time to Obtain and File Certificates of Merit and in support thereof, Plaintiff asserts the following: 1. This is a medical negligence case arising out of the defendants' failure to diagnose and/or properly treat Kristy Koelsch's breast cancer, to which she ultimately succumbed and died in May of2005. , , , . 2. This Motion is filed pursuant to Pennsylvania Rule of Civil Procedure governing certificates of merit (Pa. R.C.P. 1042 et. seq.) and, specifically, Pennsylvania Rule of Civil Procedure 1042.3(d) which provides that the Court may extend the time for filing certificates of merit for a period not to exceed sixty (60) days, but also permits as many extensions as are required. 3. The Defendants in this action include Dr. Evancho, a pathologist who reviewed surgical pathology specimens for a wide excision surgery performed on Mrs. Koelsch's breast on January 28, 1999 at Holy Spirit Hospital; Dr. Ditlow, a radiation oncologist who provided radiation treatment to Ms. Koelsch in 1999 following the wide excision; and the employer of each defendant -physician. 4. This action is related to another action pending in this Court at Docket No. 04- 4744 (hereinafter the "First Action") against, among others, Dr. Soto-Hamlin (Mrs. Koelsch's breast surgeon), Drs. Jozefiak and Castaldi (radiologists who interpreted certain breast studies) and the employers of the said defendants. 5. Following initiation of the First Action, one of the licensed professionals with whom plaintiff consulted regarding the First Action suggested that the work of the pathologist and/or radiation oncologist may have fallen outside of acceptable professional standards and contributed to Mrs. Koelsch's harm. Although very well credentialed and highly experienced, the licensed professional whom suggested further review is not an "appropriate" licensed professional from whom a Statement of Merit could be obtained regarding the pathologist's or radiation oncologists' work per Pa. RC.P. 1042.3(a)(1). , 6. Consequently, plaintiff was required to locate and retain additional experts and forward the pertinent medical records for review. 7. Thereafter, the pathology expert with whom plaintiff consulted advised plaintiff that although who a meritorious claim for medical negligence may exist, the pathology slides and all documents related to the pathology request are needed before said expert can reach sufficient opinions and conclusions to provide appropriate Statements of Merit 8. Thereafter, plaintiff requested the pathology slides and all associated documentation regarding Mrs. Koelsch from defendants Holy Spirit Hospital and/or Dr. Evancho. 9. On March 28, 2006, as a result of defendants' failure to produce the subject pathology slides and documentation, plaintiff was required to file a Motion to Compel on March 28, 2006. 10. Following filing of the Motion to Compel, counsel for defendant Hospital advised plaintiff's counsel that he would produce the pathology slides following review and photographing by his own expert. Defense counsel indicated he did not object to an extension of time to file Certificates of Merit as to defendant Hospital. 11. Plaintiff's counsel inquired whether defendant Dr. Evancho would also agree to an extension to file Certificates of Merit but has not yet heard from counsel for defendant Dr. Evancho. 12. Furthermore, plaintiff's radiation oncology expert is still reviewing the records in this matter and has indicated a desire to know the pathology expert's opinion prior to providing a signed statement of merit to plaintiff insofar as it relates to issues of causation. 13. Plaintiff's Certificates of Merit as to the defendants are currently due on or before April 10, 2006 pursuant to Rule of Civil Procedure 1042.3. , 14. Pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a), plaintiff must file a Certificate of Merit with "the Complaint," or within sixty (60) days of filing the Complaint. 15. According to Pa. R.C.P. 1042.3(b), a separate certificate of merit must be filed as to each licensed professional against whom a claim is asserted. 16. According to Pennsylvania Rule of Civil Procedure 10423(d) the Court may, upon good cause shown, extend the time for filing Certificates of Merit for a period not to exceed sixty (60) days 17. According to the Note to Pa. R.C.P. ]0423 (d), there is a basis for granting an extension of time within which to file a Certificate of Merit where, despite diligent efforts by counsel, records necessary to review the validity of the claim are not available. 18. The instant case presents just the type of situation described in Rule 1042.1 (d), as the pathology slides needed to obtain expert review are in the exclusive possession of defendants and the defendant Hospital will only produce the pathology slides to plaintiff after defendants' own expert has reviewed same. ]9. The Note to Rule 1042.3 further provides that in ruling on a motion to extend time, the court should give consideration to the practicalities of securing expert review. 20. Plaintiff's experts are busy, practicing professionals. Therefore, plaintiff's experts have limited time on a daily basis to devote to reviewing the records in this case. 21. Defendants will not be prejudiced by this request 22. Based upon all of the foregoing, plaintiff respectfully requests a sixty (60) day extension to obtain and file Certificates of Merit in this matter. , WHEREFORE, plaintiff respectfully requests that this Honorable Court grant their Motion and enter an order in the form attached hereto. VILLARI, BRANDES & KLINE, P.c. Dated: April 4, 2006 BY~(jJA~ Theresa L. Giannone, Esquire Attorney for Plaintiffs VERIFICATION Theresa L. Giannone, Esquire, states that he is an attorney for the within named Plaintiffs and verifies that the statements made in the foregoing document are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. By: v-;!t~~ Theresa L. Giannone, Esquire Attorney for Plaintiffs Date: 04/05/06 /'d ) " .... ,\'\ .-<:. (~) ,. VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa 1. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 16 I Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No, 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service 1, Theresa 1. Giannone, Esquire, attorney for Plaintiff, hereby certify that Plaintiffs Motion for Extension of Time to Obtain and File Certificates of Merit against Defendants has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 5th day of April, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.c. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 . Kevin Osborne, Esquire Osborne and Rettig, P.c. 126-128 Walnut Street Harrisburg, PA 17101 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 William Mundy, Esquire McKissock & Hoffman Goggin 1818 Market Street 13th Floor Philadelphia, PA 19103 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 VILLARI, BRANDES & KLINE, P.C. By: '\!-- ~~~ Theresa L. Iannone, EsqUire Attorney for Plaintiff ( .-, ,i-' ,.- C) .. OSBORNE & RETTIG, P.C. Kevin E. Osborne, Esquire Attorney I.D. #34991 126-128 Walnut Street Harrisburg, P A 17101 (717) 232-3046 (Fax) (717) 232-3538 JOHN F. KOELSCH, individually and as Administrator ofthe ESTATE OF KRISTY E, KOELSCH, deceased, Plaintiffs, v. HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M,D.; RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY; Defendants. Attorneys for Defendant Richard J. Ditlow, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Docket No, 05-6320 JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OFAPPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Kevin E. Osborne, Esquire on behalf of Defendant Richard J, Ditlow, Jr., M.D. in the above-referenced matter. I am authorized to accept service on his behalf. , Respectfully submitted, OSBORNE & RETTIG, P.C. /~90~~ By: Kevin E. Osborne, Esquire Supreme Ct. LD. #34991 126-128 Walnut Street Harrisburg, PA 17101 (717) 232-3046, ex!. 122 Dated: '-I I (j U (. Attorneys for Defendant Richard J. Ditlow, Jr., M,D, FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, PA 17011 Phone: [717] 909-7006 Fax: [7171 909-6955 JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased, Plaintiffs v. HOLY SPIRIT HEALTH SYSTEM, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, HOLY SPIRIT HOSPITAL, CHARLES D. EVANCHO, M,D., RICHARD J. DlTLOW, JR., M,D. and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants Attorney for Defendant: Richard J. Ditlow, Jr., M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6320 JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO: Prothonotary Kindly withdraw our appearance as counsel on behalf of Defendant, Richard J. Ditlow, Jr., M.D" in the above-captioned matter. By: Date: March Z' ,2006 FOULKROD ELLIS PROFESSIONAL CORPORATION ,ft/!/' An ew H. Foulkrod, Esquire Attorney LD. No. 77394 Michael C. Mongiello, Esquire Attorney LD. No. 87532 CERTIFICATE OF SERVICE I, Kevin E. Osborne, Esquire, hereby certiJy that I am this day serving a copy of the foregoing document upon the person(s) and in the marmer indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa I. Giarmone, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken,Pa 19428 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P. O. Box 1140 Lebanon, PA 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein P.O, Box 932 Harrisburg, PA 17108-0932 B. Craig Black, Esquire McKissock & Hoffinan 2040 Linglestown Road Suite 302 Harrisburg, P A 1711 0 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.CO 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 Craig Stone, Esquire Marshall, Dennehey, Wamer, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 William Mundy, Esquire McKissock & Hoffinan 1818 Market Street. 13th Floor Philadelphia, PA 19103 Michael Mongiello, Esquire Fou1krod Ellis, P.C. 2010 Market Street Camp Hill, PA 1701 I OSBORNE & RETTIG, P.C. By: /~ ~(j~ Kevin E. Osborne, Esquire Dated: '-I I U () G. Attorneys for Defendant, Richard J. Dillow, Jr., M.D. f"~\ ~::--'~ .-., ". ~- ,~ ~ -:' -jl ~ JOHN F. KOELSCH, individually And as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOLY SPIRIT HEALTH SYSTEM, : NO. 2005 - 6320 CIVIL TERM et al Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 13TH day of APRIL, 2006, a Rule is issued upon Defendants to Show Cause why Plaintiffs Motion for Extension of Time to Obtain Certificates of Merit should not be granted. Rule returnable ten (10) days after service. .;n1eresa L. Giarmone, Esquire 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken,Pa. 19428 Jl'V'ILBUR, MCCOY, OTTO TWP PPG PLACE, Suite 400 Pittsburgh,Pa. 15222 vMARSHALL, SMITH, HADDICK 20 South 36TH Street Camp Hill, Pa. 17011 :sld Edward E. Guido, J. " . '.'1 01 ,; " >',' . ... VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa 1. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 16l Washington Street Conshohocken, P A 19428 (6l 0) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the EST A TE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs , vs. JURY TRIAL DEMANDED HOL Y SPIRIT HEALTH SYSTEM, et. a!. Defendants. Certification of Service I, Theresa 1. Giannone, Esquire, attorney for Plainti ff, hereby ccrti fy that the Order of Court dated April 13, 2006 has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this ~ day of April, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.c. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 .~ .. Kevin Osborne, Esquire Osborne and Rettig, P.c. 126-128 Walnut Street Harrisburg, PA 17101 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PAl 7110 William Mundy, Esquire McKissock & Hoffman Goggin 1818 Market Street 13th Floor Philadelphia, PA 19103 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1 ]40 Lebanon, P A 17042-1140 VILLARI, BRANDES & KLINE, P.C. By: -----; .//- ". Y //Za71/,'j") cc, Theresa L. Giannone, Esquire Attorney for Plaintiff ~~." . / VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Consl1ohocken, P A 19428 (Cl]O) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA .JOliN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E KOELSCH, deceased 36 Jefferson Street Duneannon, P A 17020 Plaintiffs, Ys. HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Docket No. 05-6320 JURY TRIAL DEMANDED Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certify that the Order of Court dated April 13.2006 has been served upon the Defendants and all other interested parties through their counsel as addressed below by facsimile and regular, first class, postage prepaid mail on this ~~ day of April, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, r.c. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 . /" Kevin Osborne, Esquire Osbome and Rettig, P.c. 126-128 Walnut Street Harrisburg, PAl 7] 0 I William Mundy, Esquire McKissock & Hoffman Goggin 1818 Market Street 1 3lh Floor Philadelphia, PA 1')]03 Wiley P. Parker, Esquire Henry & Beaver, LLP ')37 Willow Street PO Box 1140 Lebanon, P A 17042-1140 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Craig Stone, Esquire Marshall, Dennehey, Wamer, Coleman & 4200 CruillS Mill Road, Suite B Harrisburg,PA 17112 VILLARI, BRANDES & KLINE, P.c. By: -A ' "--_ ' f ! ' / /,<.,,?71/J-t--rJu2 Tl;eresa L. Giannone, Esquire Attorney for Plaintiff JOHN F. KOELSCH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HOL Y SPIRIT HEALTH SYSTEM, et aI., Defendants NO. 05-6320 CIVIL TERM ORDER OF COURT AND NOW, this 27th day of April, 2006, upon consideration of the attached letter from Aaron S. Jayman, Esq., the Rule issued in this matter on April 4, 2006, regarding Plaintiff's Motion To Compel Defendants, Holy Spirit Hospital and/or Dr. Evancho, To Produce Surgical Pathology Slides Pertaining to Kristy Koelsch, Deceased, is discharged and the motion is deemed moot. BY THE COURT, ~ter M. Villari, Esq. Paul D. Brandes, Esq. Theresa L. Giannone, Esq. 8 Tower Bridge Suite 400 161 Washington Street Conshohocken, PA 19428 Attorney for Plaintiff / ") / ; 1/< / u{ J. We~ey ofetr.,. ,., J. { > ~uralee B. Baker, Esq. 3510 Trindle Road Camp Hill, PA 17011 1\ vthomas M. Chairs, Esq. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 ~ichael Mongiello, Esq. 2010 Market Street Camp Hill, PA 011 vWilliam Mundy, Esq. 1818 Market Street 13th Floor Philadelphia, PA 19103 ~ey P. Parker, Esq. 927 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 vB. Craig Black, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 veraig Stone, Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 :rc LAW OFFICES OF DICKIE, MCCAMEY & CHILCOTE A PROFESSIONAL CORPORATION 1200 CAMP HILL BYPASS, SUITE 205 CAMP HILL, PA 17011-3700 TEL. 717-731-4800 FAX. 717-731-4803 www. DMCLA WCOM Aaron S. Jayman Attomey.at-Law Admitted in PA ajayman@dmclaw.com April 26, 2006 The Honorable J. Wesley 0ler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: John F. Koelsch, et at. v. Holy Spirit Hospital, et al Cumberland County Docket No.: 05-6320 Our File No.: PC139; DMC File #0029096.0293693 Dear Judge Oler: On April 4, 2006, Your Honor entered a Rule to Show Cause regarding the production of pathology slides in the above-referenced matter. A copy of Your Honor's Order is attached hereto. I am pleased to advise the Court that the parties have resolved this matter and no further Court involvement is necessary. Thank you for your time and consideration of this matter. RC~;: Aaron (Jayman ASJ/ess Enclosure cc: Peter M. Villari, Esquire (w/encl.) Lauralee B. Baker, Esquire (w/enc1.) William Mundy, Esquire (w/encl.) Wiley P. Parker, Esquire (w/encl.) B. Craig Black, Esquire (w/enc1.) Craig Stone, Esquire (w/encl.) PITTSBURGH HARRISBURG PHILADELPHIA WASHINGTON, D.C. 412-281-7272 + 717-731-4800 + 215-925-2289 + 888-434-5566 + NEW JERSEY + NORTH CAROLINA. OHIO WEST VIRGINIA 856-354-0192 704-334-1 ]08 740-284-1682 + 304-233-1022 . ' VILLARI, BRANDES & KLINE, P.e. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney LD. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERL ND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No 05-6320 Plaintiffs, vs. JURY T AL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby c rtify that the Plaintiffs' First Set of Interrogatories and First Request for Production of Docume ts and Things Directed to Defendant Oakwood Center Radiation Oncology has been served upon all counsel of record and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on thi~ay Of~, 2006: Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 Attorney for Defi ndants Angela Soto-H lin, M.D. and Heritage Medical Center oup, L.L.P. Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, P A 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P,C. 1200 Camp Hill Bypass, Suite 205 CampHiII,PA 17011-3700 Michael Mongiello, Esquire Foulkrod Ellis, P.C. Camp Hill, P A 17011 Craig B. Black, Esquire McKissock & Hoffman 1818 Market Street 13th Floor Philadelphia, PA 19103 . . 2010 Market Stre t Attorney for Defi dants Stacy J. Castaldi, .0. and Judith A. Jozefiak, M.D, Tristan Associates () Attorney for Defi ndant, Charles D. Evan 0, M.D. Attorney for Defi ndants Holy Spirit Health System, Holy Sp rit Hospital of the Sisters of Christian Ch 'ty, and Holy Spirit Hospital Attorney for De ndant, Richard J. Ditlo , Jr., M.D. Attorney for De endant Oakwood Cente Radiation Oncology DES & KLINE, P.C. By: Theresa L. Oi one, Esquire Attorney for PI intiff () ~~ "\:H: rT)f" ,..., ;;..-;:> ,...::) a- :3;;' ~ v.> - ~ -1 -;:1;...,., fl"\C ~rJt9 -n ( ()\(') "~'2~~ <,-::- \"\\ c2, 'P. ~ ?:', -,... q U' 0:> VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBE AND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket N . 05-6320 Plaintiffi, vs. JURY T L DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby ce ify that the Plaintiffs' First Set of Interrogatories and Second Request for Production of Docume ts and Things Directed to Defendant Holy Spirit Hospital of the Sisters of Christian Charity has be n served upon all counsel of record and all other interested parties through their counsel as addres ed below by regular, first class, postage prepaid mail on this d~ay of ~ ' 2006: Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defen ants Angela Soto-Haml , M.D. and Heritage Medical Center Gr up, L.L.P. . . Wiley p, Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, P A 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 Michael Mongiello, Esquire Foulkrod Ellis, P.C, Camp Hill, PA 17011 Craig B. Black, Esquire McKissock & Hoffinan 1818 Market Street 13 th Floor Philadelphia, PA 19103 ~ . 2010 Market S eet Attorney for D endants Stacy J. Castal ., D.O. and Judith A. Jozefiak, M.D. d Tristan Associates () Attorney for De endant, Charles D. Ev cho, M.D. Attorney for De endants Holy Spirit Health System, Holy S irit Hospital of the Sisters of Christian Ch 'ty, and Holy Spirit Hospital Attorney for De endant, Richard J. Dido , Jr., M.D. Attorney for De endant Oakwood Cente Radiation Oncology VILLARI, BRA DES & KLINE, P.C. By: () ....., ~ c"" ~~ c::') C;)-' r"C ::1:': ~ \,,\ ,:c. fii1"\ -" E v.> -nf'l'"i CflY "~.,) (, , - <~~ S eSPI -., "J:> (..'1 ~ C') VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire TheresaL.Giannone,Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 I . IN THE COURT OF COMMON PLEAS OF CUMBE AND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket N . 05-6320 Plaintiffi, vs. JURY T AL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. a1. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby c rtify that the Plaintiffs' First Set of Interrogatories and First Request for Production of Docume ts and Things Directed to Defendant Richard J. Ditlow, Jr., M.D. has been served upon all cou sel of record and all other interested parties through their counsel as addressed below by regular first class, postage prepaid mail on this ~day of ~ ' 2006: Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defe dants Angela Soto-H lin, M.D. and Heritage Medical Center G oup, L.L.P. I' , . Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 Michael Mongiello, Esquire Foulkrod Ellis, P.C. Camp Hill, P A 17011 Craig B. Black, Esquire McKissock & Hoffinan 1818 Market Street 13 th Floor Philadelphia, PA 19103 . . 2010 Market S eet Attorney for D fendants Stacy J. Castal i, D.O. and Judith A. Jozefiak, M.D. d Tristan Associates 0 Attorney for D endant, Charles D. Ev cho, M.D. Attorney for De endants Holy Spirit Health System, Holy S irit Hospital of the Sisters of Christian Ch 'ty, and Holy Spirit Hospital Attorney for De endant, Richard J. Dido , Jr., M.D. Attorney for De endant Oakwood Cent Radiation Oncology By: Theresa L. Gi one, Esquire Attorney for PIa ntiff . , o f7= ~ ;. . , ,..., c"'" C"..;:;:} cr> 3-: ::-~ -'"' ~ ~." fl1F -om ~'!SQ ,:j9 ?")jj :-:_~C) 3m -, 55 ,< w ~ S-"? U1 C",.) VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBE AND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRlSTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket N . 05-6320 Plaintiffi, vs. JURY T AL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. a1. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby ce ify that the Plaintiffs' First Set of Interrogatories and Second Request for Production of Docume ts and Things Directed to Defendant Holy Spirit Health System has been served upon all coun el of record and all other interested parties through their counsel as addressed below by regular, lrst class, postage prepaid mail on this~day Of~, 2006: Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defe ants Angela Soto-Haml n, M.D. and Heritage Medical Center Gr up, L.L.P. . . WileyP. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, P A 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp HiIl,PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P .C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 Michael Mongiello, Esquire Foulkrod Ellis, P,C. Camp Hill, PA 17011 Craig B. Black, Esquire McKissock & Hoffinan 1818 Market Street 13th Floor Philadelphia, PA 19103 . 2010 Market Slreet Attorney for D fendants Stacy J. Castal i, D.O. and Judith A. Jozefiak, M.D. d Tristan Associates 0 Attorney for D endant, Charles D. Eva cho, M.D. Attorney for De endants Holy Spirit Health System, Holy S irit Hospital of the Sisters of Christian Ch 'ty, and Holy Spirit Hospital Attorney for De ndant, Richard J. Dido , Jr., M.D. Attorney for De~ ndant Oakwood Center Radiation Oncology DES & KLINE, P.C. By: Theresa L. Giann ne, Esquire Attorney for Plain iff . () s- r-" r;;.? C'::~ ,;;.,-. ~ o -I'l :'i!-n p1,-- -n'i'[""'; ".1y -,-=~C) :.~~ "'f . _'-_....n ~p .2fi :.:. ::;r. ~~ W ;" - c;: U' co n:<< .. .. VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBE AND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket N . 05-6320 Plaintiffi, vs. JURY T L DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. a1. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby ce ify that the Plaintiffs' First Set of Interrogatories and Second Request for Production of Docume ts and Things Directed to Defendant Charles D. Evancho, M.D. has been served upon all co el of record and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this ~day of ~ Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 ,2006: Attorney for Defe dants Angela Soto-Ham in, M.D. and Heritage Medical Center oup, L.L.P. ~ % 'a- ~: -;:;;0: ~ w - -.~ s::: ~ ~...,., r-n r:: :;\8 ,.:.~ \ ~ c-:-~([., ::~~.~ ~ .5'! '-< 6 .. U' C'> ~. VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBE AND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket N . 05-6320 Plaintiffi, vs. JURY HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service L DEMANDED I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby ce ify that the Plaintiffs' First Set of Interrogatories and First Request for Production of Document and Things Directed to Defendant Holy Spirit Hospital has been served upon all counsel of rec rd and all other interested parties through their counsel as addressed below by regular, first class, p stage prepaid mail on this 85'/fldayof ~ ' 2006: Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defen ants Angela Soto-Hamli , M.D. and Heritage Medical Center Gr p, L.L.P. 4,. , Wiley P. Parker, Esquire Henry & Beaver, LLP 937 WilIow Street P.O. Box 1140 Lebanon, PA 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, P A 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp HilI Bypass, Suite 205 Camp Hill, PA 17011-3700 Michael Mongiello, Esquire Foulkrod Ellis, P.C. Camp HilI, PA 17011 Craig B. Black, Esquire McKissock & Hoffinan 1818 Market Street 13 th Floor Philadelphia, PA 19103 2010 Market S reet Attorney for D fendants Stacy J. Castal i, D.O. and Judith A. Jozefiak, M,D. d Tristan Associates 0 Attorney for De endant, Charles D. Ev cho, M.D. Attorney for De endants Holy Spirit Health System, Holy S irit Hospital of the Sisters of Christian Ch 'ty, and Holy Spirit Hospital Attorney for De ndant, Richard J. Dido , Jr., M.D. Attorney for Defi ndant Oakwood Center adiation Oncology VILLARI, BRAN By: v Theresa L. Giann e, Esquire Attorney for Plain iff n ~.:; ,..., = c::::> cr- o -" :~ f'ri .,., r- -nJ1' ;~ij "_~(C) ;,'i';:D ").C) ;-'}rn ::~-l )> :D ,-< -. :-:\:- .:,-.," -: ,-" 5 L.n c::, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire Caption must be stated in full) JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased, (Plaintiff) vs. HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; and HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY, (Defendants) NO.6320 Civil Term 2005 1. State matter to be argued (I.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant, Oakwood Center Radiation Oncology, to Plaintiffs' Complaint 2. Identify counsel who will argue case: (a) for plaintiff: address: Peter M. Villari, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (b) for defendant: B. Craig Black, Esquire address: McKlssock & Hoffman, P.C. 2040 Llnglestown Road; Suite 302 Harrisburg, PA 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 6, 2006 Dated: ~/Jo )0& Oakwood Center Radiation Oncology CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe for Listing Case for Argument 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: Peter M. Villari, Esquire Villari, Brandes & Kline, P.C, 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (Counsel for Plaintiff) Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P,C. 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 (Counsel for Holy Spirit Health System Holy Spirit Hospital of the Sisters of Christian Charity Holy Spirit Hospital) Lauralee Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 (Counsel for Charles D. Evancho, M.D.) . . Dated: ~!do /o/.P , , Kevin E. Osborne, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for Richard J. Ditlow, Jr., M.D.) McKissock & Hoffman, P.C. By: , Blac, Esquire 1.0 N .: 36818 L en M. Burnette, Esquire 1.0. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Center Radiation Oncology n C' r~..:J C:'_;' !''''j :::11 :~ fl'i "::-" L. c:: r-,.' (,,0 -"l,-' (,'1 c:: -' . . OSBORNE & RETIlG, P.C. Kevin E. Osborne, Esquire Attorney I.D. #34991 James DeCinti, Esquire AttorneyI.D. #77421 126-128 Walnut Street Harrisburg, P A 171 0 1 (717) 232-3046 (Fax) (717) 232-3538 Attorneys for Defendant Richard J. Ditlow, M.D. JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. Docket No. 05-6320 HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY; Defendants. JURY TRIAL DEMANDED AND NOW comes Defendant Richard J. Didow, Jr., M.D. by and through his counsel, Osborne & Rettig, P .C. and hereby files the instant Petition to Make Rule Absolute and in support thereof asserts the following: 1. The instant action is a medical malpractice action initiated by Plaintiff by Complaint on or about February 11, 2005. ,. - 2. Because the instant action is a medical malpractice action it is subject to, among other things, the Pennsylvania Rules of Civil Procedure, specifically the rules dealing with professional liability actions found at Rule 1042.1 et. seq. 3. Rule 1042.3 requires that a plaintiff filing a medical malpractice action file a Certificate of Merit with his Complaint or within 60 days of the filing of the Complaint. 4. In this matter, Plaintiff did not file a Certificate of Merit with his Complaint against any of the Defendants, and therefore was required by the rules to file Certificates of Merit within 60 days or file a Motion to Extend the time for the filing of a Certificate of Merit. 5. The Motion for an Extension of time to file a Certificate of Merit must be filed on or before the filing date that the Plaintiff seeks to extend. See, Pa.R.C.P. 1042.3. 6. The note to that subsection of the rule states: The moving party must act with reasonable diligence to see that the Motion is promptly presented to the Court if required by local practice. See, note to Rule 1042.3( d). 7. In this case, on or about April 4, 2006, Plaintiff filed a Motion for Extension of time to obtain and file Certificates of Merit against Defendants, a copy of which is attached hereto as Exhibit A. 8. In Plaintiff's Motion, he asked for a 60 day extension to obtain and file Certificates of Merit in this matter. See, Exhibit A, paragraph 22. 9. On or about April 13, 2006, this Honorable Court (Guido, J.) issued a Rule upon Defendants to show cause why Plaintiff's Motion for Extension of time should not be granted. The Rule was returnable within 10 days. A copy of this Honorable Court's Order is attached 2 hereto as Exhibit B. 10. None of the Defendants in this matter filed any opposition to Plaintiff's request for an extension of time to file Certificates of Merit. 11. Thus, by April 23, 2006, Plaintiff could have filed a Petition to Make the Rule Absolute and to obtain an Order permitting Plaintiff to file his Certificates of Merit within 60 days, i.e., on or before June 23, 2006. 12. Plaintiff did not file a Petition to make the Rule Absolute and thus, has not acted "with reasonable diligence to see that the Motion is promptly presented to the Court," as required by Rule 1 042.3( d). 13. Thus, by not following Rule 1042.3, Plaintiff has essentially given himself an additional six weeks beyond the time he initially requested as an extension to file his Certificates of Merit. 14. Essentially, if Plaintiff were not to move to make the rule absolute he would essentially have an unlimited amount of time within which to file his Certificates of Merit. 15. As such, it is respectfully requested that this Honorable Court make Plaintiff's Rule to Show Cause Absolute and enter an Order requiring Plaintiff to file his Certificates of Merit within 10 days. A draft Order is attached. 16. Such an Order will have the result of giving Plaintiff almost two more months than he initially requested (a total of almost 120 days), which will not be burdensome to the Plaintiff. WHEREFORE, it is respectfully requested this Honorable Court make Plaintiff's Rule to Show Cause Absolute and issue an Order requiring Plaintiff to file his Certificates of Merit 3 . . within 10 days of the date of the Order. Dated: ~ Lfl 010 Respectfully submitted, OSfJO"l;::.IG' '.C. By: " ~ Kevin E. Osborne, Esquire Supreme Ct. I.D. #34991 James DeCinti, Esquire Supreme Ct. I.D. #77421 126-128 Walnut Street Harrisburg, PA 17101 (717) 232-3046 Attorneys for Defendant Richard 1. Ditlow, Jr., M.D. 4 I, James DeCinti, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa I. Giannone, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (Attorneys for Plaintiffi) Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P. O. Box 1140 Lebanon,PA 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, P A 171 08-0932 (Attorneys for Defendant Dr. Evancho) B. Craig Black, Esquire McKissock & Hoffinan 2040 Linglestown Road Suite 302 Harrisburg, P A 1711 0 (Attorneys for Defendant Oakwood Center Radiation Oncology) Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 CampHiII,PA 17011-3700 (Attorneys for Defendants Holy Spirit Hospital. Holy Spirit Health System and Holy Spirit Hospital of the Sisters of Christian Charity) Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 :~w James DeCinti, Esquire Dated: ~ t.t( Oft, Attorneys for Defendant, Richard J. Ditlow, Jr., M.D. ~ - E1Ul1l\1'f ^ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et, ai, Defendants, ORDER AND NOW, this day of .2006, upon consideration of the foregoing Plaintiff's Motion for an Extension of Time to File Certificates of Merit as to Defendants, and any responses thereto by defendants, it is hereby ORDERED, ADJUDGED and DECREED that the motion is GRANTED, IT IS ORDERED plaintiff shall have an extension to file certificates of merit as to the defendants for a period of sixty (60) days from the date of this Order. BY THE COURT, VILLARI, BRANDES & KLINE, P.c. By: Peter M, Villari, Esquire Paul D, Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F, KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 PJajntiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et, ai, Defendants, PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO OBTAIN AND FILE CERTIF'ICATES OF MERIT AGAINST DEFENDANTS Plaintiff; by his attorneys, Villari, Brandes & Kline, P,C" file the within Motion for an Extension of Time to Obtain and File Certificates of Merit and in support thereof, Plaintiff asserts the following: 1. This is a medical negligence case arising out of the defendants' failure to diagnose and/or properly treat Knsty Koelsch's breast cancer, to which she ultimately succumbed and died in May of2005, 2, This Motion is filed pursuant to Pennsylvania Rule of Civil Procedure governing certificates of merit (pa, R,C,P, 1042 et, seq.) and, specifically, Pennsylvania Rule of Civil Procedure 1042,3(d) which provides that the Court may extend the time for filing certificates of merit for a period not to exceed sixty (60) days, but also permits as many extensions as are required. 3, The Defendants in this action include Dr, Evancho, a pathologist who reviewed surgical pathology specimens for a wide excision surgery performed on Mrs, Koelsch's breast on January 28, 1999 at Holy Spirit Hospital; Dr, Ditlow, a radiation oncologist who provided radiation treatment to Ms, Koelsch in 1999 following the wide excision; and the employer of each defendant-physician, 4, This action is related to another action pending in this Court at Docket No, 04- 4744 (hereinafter the "First Action") against, among others, Dr. Soto-Hamlin (Mrs. Koelsch's breast surgeon), Drs, Jozefiak and Castaldi (radiologists who interpreted certain breast studies) and the employers of the said defendants, 5, Following initiation of the First Action, one of the licensed professionals with whom plaintiff consulted regarding the First Action suggested that the work of the pathologist and/or radiation oncologist may have fallen outside of acceptable professional standards and contributed to Mrs. Koelsch's harm, Although very well credentialed and highly experienced, the licensed professional whom suggested further review is not an "appropriate" licensed professional from whom a Statement of Merit could be obtained regarding the pathologist's or radiation oncologists' work per Pa. R,C,P, 1042,3(a)(I), 6. Consequently, plaintiff was required to locate and retain additional experts and forward the pertinent medical records for review. 7, Thereafter, the pathology expert with whom plaintiff consulted advised plaintiff that although who a meritorious claim for medical negligence may exist, the pathology slides and all documents related to the pathology request are needed before said expert can reach sufficient opinions and conclusions to provide appropriate Statements of Merit. 8, Thereafter, plaintiff requested the pathology slides and all associated documentation regarding Mrs. Koelsch from defendants Holy Spirit Hospital and/or Dr. Evancho, 9, On March 28, 2006, as a result of defendants' failure to produce the subject pathology slides and documentation, plaintiff was required to file a Motion to Compel on March 28, 2006. 10, Following filing of the Motion to Compel, counsel for defendant Hospital advised plaintiff's counsel that he would produce the pathology slides following review and photographing by his own expert. Defense counsel indicated he did not object to an extension of time to file Certificates of Merit as to defendant Hospital. 11. Plaintiff's counsel inquired whether defendant Dr. Evancho would also agree to an extension to file Certificates of Merit but has not yet heard from counsel for defendant Dr. Evancho. 12, Furthermore, plaintiff's radiation oncology expert is still reviewing the records in this matter and has indicated a desire to know the pathology expert's opinion prior to providing a signed statement of merit to plaintiff insofar as it relates to issues of causation, 13, Plaintiff's Certificates of Merit as to the defendants are currently due on or before April 10, 2006 pursuant to Rule of Civil Procedure 1042.3, 14. Pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a), plaintiff must file a Certificate of Merit with "the Complaint,. or within sixty (60) days offiling the Complaint. 15, According to Pa, R.C,P, I042,3(b), a separate certificate of merit must be filed as to each licensed professional against whom a claim is asserted, 16, According to Pennsylvania Rule of Civil Procedure 1042,3(d) the Court may, upon good cause shown, extend the time for filing Certificates of Merit for a period not to exceed sixty (60) days, 17, According to the Note to Pa. R.C,P. 1042.3 (d), there is a basis for granting an extension of time within which to file a Certificate of Merit where, despite diligent efforts by . counsel, records necessary to review the validity of the claim are not available, 18, The instant case presents just the type of situation described in Rule 1042, I (d), as the pathology slides needed to obtain expert review are in the exclusive possession of defendants and the defendant Hospital will only produce the pathology slides to plaintiff after defendants' own expert has reviewed same, 19, The Note to Rule 1042.3 further provides that in ruling on a motion to extend time, the court should give consideration to the practicalities of securing expert review, 20, Plaintiff's experts are busy, practicing professionals. Therefore, plaintiff's experts have limited time on a daily basis to devote to reviewing the records in this case. 21. . Defendants will not be prejudiced by this request. 22, Based upon all of the foregoing, plaintiff respectfully requests a sixty (60) day extension to obtain and file Certificates of Merit in this matter. WHEREFORE, plaintiff respectfully requests that this Honorable Court grant their Motion and enter an order in the form attached hereto. VILLARI, BRANDES & KLINE, P.C, Dated: April 4, 2006 By:~(jJAaM Theresa L. Giannone,Esquire Attorney for Plaintiffs VERIFICATION Theresa L. Giannone, Esquire, states that he is an attorney for the within named Plaintiffs and verifies that the statements made in the foregoing document are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsWorn falsification to authorities. By: v-.J/~O/ Theresa L. Giannone, Esquire Attorney for Plaintiffs Date: 04/05/06 VILLARI, BRANDES & KLINE, P.c. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certify that Plaintiff's Motion for Extension of Time to Obtain and File Certificates of Merit against Defendants bas been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 5th day of April, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, P A 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P ,C, 1200 Camp Hill Bypass, Suite 205 Camp Hill, P A 17011-3700 Kevin Osborne, Esquire Osborne and Rettig, P,C. 126-128 Walnut Street Harrisburg, PA 17101 B. Craig Black, Esquire McKissock & Hoffinan 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 William Mundy, Esquire McKissock & Hoffinan Goggin 1818 Market Street 13 th Floor Philadelphia, PA 19103 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Wiley p, Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, P A 17042-1140 VILLARI, BRANDES & KLINE, P.C, By: V-d:~ Theresa L. iannone, Esquire Attorney for Plaintiff ~ - f;1(1l1611' B ~ . JOHN F. KOELSCH, individually And as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. HOLY SPIRIT HEALTH SYSTEM,: NO. 2005 - 6320 CIVIL TERM etal Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 13TH day of APRIL, 2006, a Rule is issued upon Defendants to Show Cause why Plaintiffs Motion for Extension of Time to Obtain Certificates of Merit should not be granted. Rule. returnable ten (10) days after service. Edward E. Guido, J. Theresa L. Giannone, Esquire 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, Pa 19428 vnLBUR, MCCOY, OTTO TWP PPG PLACE, Suite 400 Pittsburgh, Pa. 15222 MARSHALL, SMITH, HADDICK 20 South 36TH Street Camp Hill, Pa. 17011 :sld (:) s;; ~"'~ -CGJ l""r:,.'.c ~::,. ,,< en ~~ }~~ ".-,) ~.8 :;;....: .:< ...., "" = "'" ",.. c:: en I a:> ""tl ::r. r::! N .. ~ ~~ :g ~~ 9~ ~ ~ " ~ VILLARI, BRANDES & KLINE, P.c. By: Peter M, Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D, #26875, #59769 & #77148 Attomeys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F, KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No, 05-6320 Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants, Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certifY that Plaintiff s Response in Opposition to Defendants' Petition to Make Rule Absolute has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 8th day of Au~st, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M, Chairs, Esquire Dickie, McCamey & Chilcote, P,C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 " ~ Kevin Osborne, Esquire Osborne and Rettig, P,C, 126-128 Walnut Street Harrisburg, P A 1710 1 B, Craig Black, Esquire McKissock & Hoffinan 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 Wiley p, Parker, Esquire Henry & Beaver, LLP 937 Willow Street P,O, Box 1140 Lebanon, PA 17042-1140 VILLARI, BRANDES & KLINE, P,C, , By: ~t4 ~ Theresa L. Giannone, Esquire Attorney for Plaintiff I' 'CS ~ \? -oce. ~ Qicf'\ GJ ;C-_.-i' l th}~ .D ~c:; -:P'{"; -:;';0 "P-c 'Z :2. .D \ ) \ \ ~ ~~ jt3 .~?? ~~ ::P ~ 2~ _ 9. :. ~ VILLARI, BRANDES & KLINE, P.c. By: Peter M, Villari, Esquire Paul D, Brandes, Esquire Theresa L. Giannone, Esquire Attorney LD, #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F, KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et, ai, Defendants, PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' PETITION TO MAKE RULE DATED ARPIL 13, 2006 ABSOLUTE Plaintiff, by his attorneys, Villari, Brandes & Kline, P,C" file the within Motion for an Extension of Time to Obtain and File Certificates of Merit and in support thereof, Plaintiff asserts the following: 1. Denied. The Complaint was filed in this matter on February 11,2006, rather than February 11,2005 as alleged by defendants, 2, Admitted. 3, Admitted, By way of further response, the Pennsylvania Rules of Civil Procedure governing certificates of merit (pa, R.C,P, 1042 et. seq,) provide that the Court may extend the time for filing certificates of merit for a period not to exceed sixty (60) days, but also permits as many extensions as are required, Pa, R.C,P, 1042,3, 4, Admitted, By way of further response, plaintiff properly filed a Motion for Extension of Time to File Certificates of Merit. Plaintiff requested an additional sixty (60) days based, in part, on the refusal of certain defendants to forward pathology slides needed by plaintiff's expert to form sufficient opinions to provide a statement of merit, Plaintiff was required to file a separate Motion to Compel to obtain the pathology slides at issue, Ultimately the Motion to Compel was resolved by agreement and defendant Holy Spirit agreed to produce the pathology slides provide defendant's expert could first review and photograph the slides, Plaintiff did not receive the pathology slides until July 17, 2006. 5, Admitted, Plaintiff properly filed his Motion to Extend Time for Filing Certificates of Merit prior to expiration ofthe applicable time period, 6, Admitted, By way of further answer, plaintiff properly filed his Motion to Extend time with the Court, Pursuant to Cumberland County Local Rules of Civil Procedure 208,3(a)(I), Motions shall be filed with the Prothonotary who shall forward same to Court Administration for disposition, According to Cumberland County Local Rule 208,3(a)(4), the Judge to whom a motion is assigned shall, thereafter, by order, schedule such briefing and argument as shall be deemed necessary, 7, Admitted. 8, Admitted, 9, Admitted, 10, Admitted, 11. Denied as a conclusion oflaw to which no responsive pleading is required, Although the Rule was signed on April 17, 2006, same was not docketed by the Prothonotary and sent to plaintiff until April 17, 2006, The Rule was returnable ten days after service thereof Plaintiff received the Rule on April 20, 2006 and served same on April 21, 2006, Thus, the Rule would have been returnable on or about May 1, 2006, Plaintiff did not file a Petition to make the Rule absolute at that time based on the fact that all parties essentially conceded that plaintiff required the pathology slides to obtain expert review (thus, the lack of any opposition to the Motion for an Extension), Defendant Holy Spirit agreed to produce pathology slides to plaintiffs but only after its expert could review and photograph the slides, Plaintiff did not receive the pathology slides at issue until July 17, 2006, Furthermore, plaintiff's experts have expressed that the testimony of Dr, Soto- Hamlin (a defendant in a related case) is needed for them to form their opinions, The deposition of Dr, Soto-Hamlin has been scheduled and cancelled several times, The two most recent cancellations have been while plaintiff's Motion for Extension of Time has been pending: one cancellation was at the insistence of defense counsel in this matter based on the fact that he wanted additional time to become familiar with the file in this case prior to the deposition with Dr. Soto-Hamlin; and the second cancellation came about because a scheduling conflict arose for Dr, Soto-Hamlin that would limit plaintiff's time to complete her deposition. 12, Denied as a conclusion oflaw to which no responsive pleading is required. Furthermore, plaintiff has acted with reasonable diligence in that he filed his Motion for Extension in a timely manner and filed a Motion to Compel to expedite production of the pathology slides at issue, 13, Denied as a conclusion oflaw to which no responsive pleading is required, By way of further answer, it is denied that plaintiff has been given essentially an extra six weeks, As . set forth in response to paragraph 11 above, plaintiff could not have Petitioned to make the Rule absolute until May 2, 2006 at the earliest. Assuming it would have taken approximately 9 days for an Order to be issued making the Rule absolute (similar to the time it took for Plaintiff's Motion for Extension to be processed), such Order would have been issued on or about May 11, 2006, Thus, if plaintiff would have had 60 days from approximately May 9,2006 to obtain Certificates of Merit, plaintiff has only gained approximately three extra weeks beyond the time he would have had if an Order were issued immediately upon expiration of the Rule date, Furthermore, since plaintiff has only just received the pathology slides on July 17, 2006, it would by unfair to require plaintiff to filed Certificates of Merit within ten days as requested by deendants, Since the Rules of Civil Procedure envision that a Court may grant as many extensions for filing Certificates of Merit as needed, it would not be contrary to the Rules to allow plaintiffs the 60 days initially requested, Otherwise, plaintiff will have no choice but to file another motion for extension almost immediately upon receipt of any Order requiring Certificates of Merit within ten days based upon the circumstances set forth above, 14, Denied as a conclusion of law to which no responsive pleading is required, 15, Denied, This paragraph contains a request for relief to which no responsive pleading is required, Notwithstanding, for the reasons set forth above, plaintiff respectfully requests that this Honorable Court issue the Order attached to Plaintiffs' Motion for Extension of Time to File Certificates of Merit (a copy of which is attached hereto for the Court's convenience) and permit a 60 day extension within which to file Certificates of Merit. 16, Denied as a conclusion oflaw to which no responsive pleading is required, Furthermore, it would be prejudicial to plaintiff to require Certificates of Merit within ten days as defendants only just recently produced the pathology slides in question to plaintiff. Plaintiff requires sufficient time to allow his expert to review the slides and provide a written statement of merit where applicable, WHEREFORE, plaintiff respectfully requests that this Honorable Court deny defendants' Petition and enter an order in the form attached hereto, VILLARI, BRANDES & KLINE, P,C, Dated: August 8, 2006 By: ~(~~e Attorney for Plaintiffs . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F, KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No, 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et, ai, Defendants, ORDER AND NOW, this day of ,2006, upon consideration of the foregoing Plaintiff's Motion for an Extension of Time to File Certificates of Merit as to Defendants, and any responses thereto by defendants, it is hereby ORDERED, ADJUDGED and DECREED that the motion is GRANTED, IT IS ORDERED plaintiff shall have an extension to file certificates of merit as to the defendants for a period of sixty (60) days from the date of this Order. BY THE COURT, (') "" c: = ~ = s:: cro ~t)' >- :r n rtl c:: ~f~} C") m::n thJ~ I :,g~ f!5iP: l.O 0 <-' :;:J\.;!1 ~I'"'' "0 4,..'.' :J: ~5~ >8 - c5 z " ~ .:.:! l.O -< )' " VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D, Brandes, Esquire Theresa L. Giannone, Esquire Attorney LD, #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F, KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E, KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No, 05-6320 Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants, Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certify that Plaintiff's Motion to Make Rule dated April 13, 2006 Absolute has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 8th day of August, 2006: Lauralee B, Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M, Chairs, Esquire Dickie, McCamey & Chilcote, P,C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 .' Kevin Osborne, Esquire Osborne and Rettig, P,C, 126-128 Walnut Street Harrisburg, P A 17101 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Wiley p, Parker, Esquire Henry & Beaver, LLP 937 Willow Street P,O, Box 1140 Lebanon, PA 17042-1140 B, Craig Black, Esquire McKissock & Hoffinan 2040 Linglestown Road, Suite 302 Harrisburg, P A 1711 0 VILLARI, BRANDES & KLINE, P.C, By: ~W ~V'\J Theresa L. Giannone, Esquire Attorney for Plaintiff ~ -rJl'1:1 mn 2.:;t', 2.r.;_ (J1~ ::<...;-..:" C2\- 2?;c: .o::._{..) 5c: ~ . , :;:g ~ ..... ~ I .&I ~ ~i ~-I' X:n ~ 9-~ - ~ .. "i5 N ::<: o ',. ',- . . (~EIVEi> AU,j \I P W06 7 OSBORNE & KElTIG, P.C. Kevin E. Osborne, Esquire Attorney J.D. #34991 126-128 Walnut Street Harrisburg, PAl 71 0 1 (717) 232-3046 (Fax) (717) 232-3538 Attorneys for Defendant Richard J. Ditlow, M.D. JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. Docket No. 05-6320 HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY; Defendants. JURY TRIAL DEMANDED AND NOW this II*' dayof ~ , 2006 it is hereby ordered that the Rule issued upon Defendants on April 13, 2006 is hereby made absolute and Plaintiffs shall ~t-f have ~ (~days from the date of this Order to file Certificates of Merit in this case. 10 B E COURT: J. ff-((-o' ~ ~ * - - ~V^1ISNN3d (] 01N'H38Vlno ~d II BOY 900Z IOHlOOd 3H1 :lO )l;lJO-{J311:! VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. PLAINTIFF'S MOTION TO MAKE RULE DATED APRIL 13,2006 ABSOLUTE Plaintiff, by his attorneys, Villari, Brandes & Kline, P.C., file the within Motion to Make Rule Absolute regarding Plaintiff's Motion for an Extension of Time to Obtain and File Certificates of Merit and in support thereof, Plaintiff asserts the following: 1. This is a medical negligence case arising out of the defendants' failure to diagnose and/or properly treat Kristy Koelsch's breast cancer, to which she ultimately succumbed and died in May of2005. 2. On or about April 4, 2006 Plaintiff filed a Motion for Extension of Time to Obtain <-- and File Certificates of Merit. 3. On or about April 13, 2006, this Court issued a Rule to show cause why Plaintiff's Motion should not be granted. The Rule was returnable within ten says of service of the order (the order was docketed by the Prothonotary on April 17, 2006). A true and correct copy of the Order dated April 13, 2006 is attached hereto as Exhibit" A." 4. Plaintiff served the OrderlRule upon defendants on April 21, 2006. 5. Defendants did not file any opposition to the Motion for Extension. 6. Defendants recently filed a Motion seeking to make the Rule absolute and asking that Plaintiff be limited to ten days to obtain Certificates of Merit. 7. The Defendants in this action include Dr. Evancho, a pathologist who reviewed surgical pathology specimens for a wide excision surgery performed on Mrs. Koelsch's breast on January 28, 1999 at Holy Spirit Hospital; Dr. Ditlow, a radiation oncologist who provided radiation treatment to Ms. Koelsch in 1999 following the wide excision; and the employer of each defendant-physician. 8. This action is related to another action pending in this Court at Docket No. 04- 4744 (hereinafter the "First Action") against, among others, Dr. Soto-Hamlin (Mrs. Koelsch's breast surgeon), Drs. Jozefiak and Castaldi (radiologists who interpreted certain breast studies) and the employers of the said defendants. 9. The pathology expert with whom plaintiff consulted regarding Certificates of Merit in this action advised plaintiff that although a meritorious claim for medical negligence may exist, the pathology slides and all documents related to the pathology request are needed before said expert can reach sufficient opinions and conclusions to provide appropriate Statements of Merit. 10. Thereafter, plaintiff requested the pathology slides and all associated " documentation regarding Mrs. Koelsch from defendants Holy Spirit Hospital and/or Dr. Evancho. 11. On March 28, 2006, as a result of defendants' failure to produce the subject pathology slides and documentation, plaintiff was required to file a Motion to Compel on March 28,2006. 12. Following filing of the Motion to Compel, counsel for defendant Hospital advised plaintiff s counsel that he would produce the pathology slides following review and photographing by his own expert. 13. Plaintiff's experts have also expressed that the testimony of Dr. Soto-Hamlin (a defendant in a related case) is needed for them to form their opinions. The deposition of Dr. Soto-Hamlin has been scheduled and cancelled twice while plaintiffs Motion for Extension of Time has been pending: one cancellation was at the insistence of defense counsel in this matter based on the fact that he wanted additional time to become familiar with the file in this case prior to the deposition with Dr. Soto-Hamlin; and the second cancellation came about because a scheduling conflict arose for Dr. Soto-Hamlin that would limit plaintiffs time to complete her deposition 14. Pursuant to Pennsylvania Rule of Civil Procedure governing certificates of merit (Pa. RC.P. 1042 et. seq.) and, specifically, Pennsylvania Rule of Civil Procedure 1042.3(d), the Court may extend the time for filing certificates of merit for a period of sixty (60) days, but also permits as many extensions as are required. 15. Based upon all of the foregoing and for the reasons previously set forth in plaintiff s Motion for Extension of Time to Obtain and File Certificates of Merit, plaintiff respectfully requests that this Court make the Rule dated April 13, 2006 absolute and grant a sixty (60) day extension to obtain and file Certificates of Merit in this matter. " WHEREFORE, plaintiff respectfully requests that this Honorable Court grant their Motion and enter an order in the form attached hereto. VILLARI, BRANDES & KLINE, P.C. Dated: August 8, 2006 By: ~!(~Wre Attorney for Plaintiffs , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. aI. Defendants. ORDER AND NOW, this day of ,2006, upon consideration of the foregoing Plaintiff's Motion for an Extension of Time to File Certificates of Merit as to Defendants, and any responses thereto by defendants, it is hereby ORDERED, ADnJDGED and DECREED that the motion is GRANTED. IT IS ORDERED plaintiff shall have an extension to file certificates of merit as to the defendants for a period of sixty (60) days from the date of this Order. BY THE COURT. A " ('! i J JOHN F. KOELSCH, individually And as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. HOLY SPIRIT HEALTH SYSTEM,: NO. 2005 - 6320 CIVIL TERM et al Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 13TH day of APRIL, 2006, a Rule is issued upon Defendants to Show Cause why Plaintiff s Motion for Extension of Time to Obtain Certificates of Merit should not be granted. Rulereturnable ten (10) days after service. Edward E. Guido, J. Theresa L. Giannone, Esquire 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, Pa. 19428 WILBUR, MCCOY, OTTO TWP PPG PLACE, Suite 400 Pittsburgh, Pa. 15222 MARSHALL, SMITH, HADDICK 20 South 36TH Street Camp Hill, Pa. 17011 :sld 8 ? ""PCD 'TiF; Z." t~:;:~ e: ;~~ L. Z --! --<. r-.:) <:::> <:::> c:r> :Do C C") ~ :r m:D r- -om :uQ ~(~) I:n Qo lsm ::-:. ~ Ul -0 :x: Y? ..r::- ,. . , RECEIVED AUG I e Z006 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F, KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E, KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No, 05-6320 Plaintiffs, vs, JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et, ai, Defendants, ORDER AND NOW, this a.,.;r dayof ~ ,2006, upon consideration of the foregoing Plaintiffs Motion to Make Rule dated April 13, 2006 Absolute. It is hereby ORDERED that the Motion is Granted, The Rule dated April 13, 2006 regarding Plaintiff s for an Extension of Time to File Certificates of Merit as to Defendants hereby made ABSOLUTE and said motion is GRANTED, IT IS ORDERED plaintiff shall have an extension to file certificates of merit as to rder, the defendants for a period of sixty (60) days fro \t> nJD ~~ a '" VIN\f^1,\SNN3d AlNflm rJ,,\/o'jjSliIJn:J ZO :8 Wit ZZ 50V SOOl AWlONOH108d 3H1 ;lO 3::JI:J:liX1311:1 \ "" VILLARI, BRANDES & KLINE, P.c. By: Peter M, Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Sasha L. Azar, Esquire Attorney LD, #26875, #59769 & #77148, #94587 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F, KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E, KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No, 05-6320 Plaintiffi, vs. JURY TRIAL DEMANDED HOLY SPOOT HEALTH SYSTEM, et. a1. Defendants, Certification of Service I, Sasha L. Azar, Esquire, attorney for Plaintiff, hereby certify that Plaintiffs Brief with regard to Plaintiffs Response in Opposition to the Preliminary Objections of Defendant Oakwood Center Radiation Oncology to Plaintiffs Complaint has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 31 st day of August, 2006: Lauralee B, Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, P A 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C, 1200 Camp Hill Bypass, Suite 205 Camp HiII,PA 17011-3700 , ". Kevin Osborne, Esquire Osborne and Rettig, P.C. 128 Walnut Street Harrisburg, P A 17101 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & 126- 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, P A 1711 0 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, P A 17042-1140 VILLARI, BRANDES & KLINE, P.C. (') ~ -- ~ (' (l)f., (j:; r-;. \" t'"' ,...> = = 0' (/) \,l -'r] ~~~ ~,~~ x ::i . - S?t :t"T'l r"E -01"11 ~'}.~\ ()~) ~:-:?Tl ~'-", ?2 ~ ""0 -,,~ ....c:. r:-? o -' VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, PA 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO OBTAIN AND FILE CERTIFICATES OF MERIT AGAINST DEFENDANTS Plaintiff, by his attorneys, Villari, Brandes & Kline, P.C., files the within Motion for an Extension of Time to Obtain and File Certificates of Merit and in support thereof, Plaintiff asserts the following: 1. This is a medical negligence case arising in part out of the defendants' failure to diagnose and/or properly treat Kristy Koelsch's breast cancer, to which she ultimately succumbed and died in May of 2005 (hereinafter the "Second Action"). 2. This Motion is filed pursuant to Pennsylvania Rule of Civil Procedure governing certificates of merit (Pa. R.C.P. 1042 et. seq.) and, specifically, Pennsylvania Rule of Civil Procedure 1042.3(d) which provides that the Court may extend the time for filing certificates of merit for a period not to exceed sixty (60) days, but also permits as many extensions as are required. 3. The Defendants in this action include Dr. Evancho, a pathologist who reviewed surgical pathology specimens for a wide excision surgery performed on Mrs. Koelsch's breast on January 28, 1999 at Holy Spirit Hospital; Dr. Ditlow, a radiation oncologist who provided radiation treatment to Ms. Koelsch in 1999 following the wide excision; and the employer of each defendant-physician. 4. This action is related to another action pending in this Court at Docket No. 04- 4744 (hereinafter the "First Action") against, among others, Dr. Soto- Hamlin (Mrs. Koelsch's breast surgeon), Drs. Jozefiak and Castaldi (radiologists who interpreted certain breast studies) and the employers of those defendants. 5. Following initiation of the "First Action", one of the licensed professionals with whom plaintiff consulted regarding the "First Action" suggested that the work of the pathologist and/or radiation oncologist may have fallen outside of acceptable professional standards and contributed to Mrs. Koelsch's harm. Although very well credentialed and highly experienced, the licensed professional who suggested further review is not an "appropriate" licensed professional from whom a Statement of Merit could be obtained regarding the pathologist's or radiation oncologists' work per Pa. R.C.P. 1042.3(a)(l). 6. Consequently, plaintiff was required to locate and retain additional experts and fOlWard the pertinent medical records for review. 7. Thereafter, the pathology expert with whom plaintiff consulted advised plaintiff that although a meritorious claim for medical negligence may exist, the pathology slides and all documents related to the pathology request were needed before the expert could reach sufficient opinions and conclusions to provide appropriate Statements of Merit. 8. Thereafter, plaintiff requested the pathology slides and all associated documentation regarding Mrs. Koelsch from defendants Holy Spirit Hospital and/or Dr. Evancho. 9. In addition to the pathology slides and all associated documentation produced from defendants Holy Spirit Hospital and/or Dr. Evancho, the deposition of Dr. Soto-Hamlin (Mrs. Koelsch's breast surgeon), who is a defendant in the "First Action," was requested, in part to further aid the pathology expert with whom plaintiff consulted. 10. Dr. Soto-Hamlin's deposition was originally scheduled for May 19, 2006, but was canceled by defense counsel due to objections from defense counsel in the "Second Action." Dr. Soto-Hamlin's deposition was rescheduled for July 26,2006 in order to allow counsel from the "Second Action" to have sufficient time to review documentation from the "First Action." 11. On or about July 25,2006, plaintiffs counsel was advised that Dr. Soto-Hamlin had an emergency patient and could only be available for approximately four (4) hours at the most for her deposition. Plaintiffs counsel advised that this was not sufficient time in order to complete the deposition of Dr. Soto-Hamlin. 12. On or about August 14,2006, defense counsel for Dr. Soto-Hamlin provided the date of October 12, 2006 for defendant's deposition, and it was completed as scheduled. 13. On or about October 16,2006, plaintiffs counsel received defendant Dr. Soto- Hamlin's deposition transcript from the court reporter and promptly forwarded it to the pathology expert with whom plaintiff has consulted. 14. Plaintiff has previously petitioned this Court for an extension to file certificates of merit as to the defendants in the Second Action. Pursuant to the Court's August 21,2006 Order, Plaintiffs Certificates of Merit as to the defendants in the Second Action are currently due on or before October 19,2006. 15. Pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a), plaintiff must file a Certificate of Merit with "the Complaint," or within sixty (60) days of filing the Complaint. 16. According to Pa. R.C.P. 1042.3(b), a separate certificate of merit must be filed as to each licensed professional against whom a claim is asserted. 17. According to Pennsylvania Rule of Civil Procedure 1042.3(d) the Court may, upon good cause shown, extend the time for filing Certificates of Merit for a period not to exceed sixty (60) days. 18. According to the Note to Pa. R.C.P. 1042.3 (d), there is a basis for granting an extension of time within which to file a Certificate of Merit where, despite diligent efforts by counsel, records necessary to review the validity of the claim are not available. 19. The instant case presents just the type of situation described in Rule 1042.1(d), as the pathology slides and deposition testimony needed to obtain expert review were not available until recently. 20. The Note to Rule 1042.3 further provides that in ruling on a motion to extend time, the court should give consideration to the practicalities of securing expert review. 21. Plaintiff s experts are busy, practicing professionals. Therefore, plaintiff s experts have limited time on a daily basis to devote to reviewing the documents in this case. 22. Defendants will not be prejudiced by this request. 23. Based upon all of the foregoing, plaintiff respectfully requests a sixty (60) day extension to obtain and file Certificates of Merit in this matter. WHEREFORE, plaintiff respectfully requests that this Honorable Court grant their Motion and enter an order in the form attached hereto. Dated: October 17, 2006 By: VERIFICATION Paul D. Brandes, Esquire, hereby states that he is the attorney for the Plaintiff in this action and verifies the statements made in the foregoing Motion for Extension of Time to Obtain Certificates of Merit are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements made herein are made subject to the penalties of 18 Pa. C.S.A. 94904 relating to unsworn falsification to authorities. IO!lt / tJ ~ Pau (D. randes, Esquire Atto ey for Plaintiff VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs , vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Paul D. Brandes, Esquire, attorney for Plaintiff, hereby certify that Plaintiffs Motion for Extension of Time to Obtain and File Certificates of Merit against Defendants has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 17th day of October, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 Kevin Osborne, Esquire Osborne and Rettig, P.C. 126-128 Walnut Street Harrisburg, PAl 71 0 1 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PAl 7112 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PAl 711 0 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, P A 17042-1140 VILLARI, B ES & KLINE, P.C. By: g ~ -o~\ rDr '., z-:::. ~"7": U:l_"-- ~C~: ~;. ('~'~ G:: () J'7 c: ~ ~ ~ <:;) ("") --t ~ ~~ co ~~ ~ %~ - -4 .- ~ s:- ~ g:) .. ~ OCT 1 9 2006 ( IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. AND NOW, this RULE TO SHOW CAUSE ~~ ~ ~O day of , 2006, a Rule is issued upon Defendants to Show Cause why Plaintiff's Motion for Extension of Time to Obtain Certificates of Merit should not be granted. Rule returnable ten (10) days after service. J. ~-t _-\ F ~ 't. 0-~ ~ ~,' ~~r \ \ ~~ ...... r ,/ <:::> .0. 'o. --- Vi .., ~ ~. ~ ~ \. (-. ~ ~ 1'-- ,~~ ~~ ~.~,! ~ ~~. r;'f! ~ ~ ~) \;f\H\i !\l,l.,S\\lt,Eld I \ t>,,\rv'" ,- ,"'\'.. r-,' '~""'IM!"V'\ 1'.J,.l~\ IU,' ',r';': \~+'Jdn\ 1-.1 0\ :2 ~d 02 130 qUUl A\:1"iJ'lONOrtLOdd 3141 :!O 3~B~b-03\\:I JOHN F. KOELSCH, individually and as administrator of the ESTATE OF KRISTY E. KOELSCH, deceased, Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION-LAW HOL Y SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; HaL Y SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D.; and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants : NO. 05-6320 CIVIL TERM IN RE: DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 20th day of October, 2006, upon consideration of Defendant Oakwood Center Radiation Oncology's Preliminary Objections to Plaintiffs Complaint, as well as the oral arguments and briefs submitted on the matter, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant Oakwood's preliminary objection to Plaintiffs claim arising out of alleged corporate negligence is denied; 2. Defendant Oakwood's preliminary objection in the nature of a demurrer to Plaintiffs cause of action for negligent infliction of emotional distress is granted and Count V of Plaintiff s Complaint is dismissed; and VU\llff\IASNN3d I !Nnnt"'j (1:'.\\-;'11 r::;q'Mn"" AJ.. . ,.,' . _ .., d. _",v ~ v IS :2 v~d OZ 1::10900Z ABV10NOH10cd 3H1 :10 3Ql:HO-G31l::J 3. Defendant Oakwood's preliminary objection to paragraph 14 of Plaintiffs Complaint is denied. BY THE COURT, ~er M. Villari, Esq. Paul D. Brandes, Esq. Theresa 1. Giannone, Esq. Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 Attorneys for Plaintiff ;(homas M. Chairs, Esq. Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 Attorney for Defendant Holy Spirit Health System ~uralee B. Baker, Esq. Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendant Charles D. Evancho, M.D. ftevin E. Osborne, Esq. ~ Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, P A 17101 Attorney for Defendant Richard J. Ditlow, Jr., M.D. " )3. Craig Black, Esq. Lauren M. Burnette, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Attorneys for Defendant Oakwood Center Radiation Oncology JOHN F. KOELSCH, individually and as administrator of the ESTATE OF KRISTY E. KOELSCH, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION-LAW HOL Y SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D.; and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants : NO. 05-6320 CIVIL TERM IN RE: DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, 1., October 20, 2006. In this medical malpractice case, Plaintiff seeks to hold Defendant Oakwood Center Radiation Oncology liable under theories of corporate negligence and negligent infliction of emotional distress, inter alia. Defendant Oakwood Center Radiation Oncology has filed preliminary objections to Plaintiffs complaint under the following headings: I. Demurrer to Count IV-negligence/survival action-Plaintiff v. Defendant Oakwood Center Radiation Oncology;1 I Preliminary Objections of Oakwood Center Radiation Oncology to Plaintiffs Complaint, ~~ 5-18, filed February 28,2006 (hereinafter Defendant Oakwood's Preliminary Objections,~. II. Preliminary objection to Count V of Plaintiffs complaint [relating to negligent infliction of emotional distress ]-failure to state a claim on which relief can be granted;2 and III. Preliminary objection in the nature of a motion to strike for insufficient specificity of a pleading pursuant to Pa. R.C.P. 1028(a)(3).3 Oral argument on the preliminary objections was held on September 6, 2006. For the reasons stated in this opinion, Defendant's preliminary objection to Plaintiffs claim for negligent infliction of emotional distress will be granted and the other preliminary objections will be denied. STATEMENT OF FACTS For the purpose of Defendant Oakwood's preliminary objections, the allegations of the complaint may be summarized as follows: Plaintiff John F. Koelsch is the widower of Kristy E. Koelsch, deceased, and is administrator of the estate of Kristy E. Koelsch.4 Plaintiffs wife, Kristy E. Koelsch, died from metastatic breast cancer on May 24, 2005.5 Defendants are Holy Spirit Health System, Holy Spirit Hospital, Dr. Charles D. Evancho, Dr. Richard J. Ditlow, Jr.,6 and Oakwood Center Radiation Oncology (hereinafter Oakwood), each a participant to some extent in the medical care of the deceased.7 Plaintiff s wife was diagnosed with ductal carcinoma in situ, a form of breast cancer.8 Treatment for the condition consisted of a lumpectomy performed in January of 2 Defendant Oakwood's Preliminary Objections, ~~ 19-27. 3 Defendant Oakwood's Preliminary Objections, ~~ 28-34. 4 Plaintiffs Complaint, ~~ I, 3, filed February 9, 2006 (hereinafter Complaint,~. 5 Complaint, ~ 2. 6 Complaint, ~ 20. Dr. Ditlow allegedly acted as the "agent, employee, worker and/or servant of the defendant Hospital and/or Oakwood." Id. 7 Complaint, ~~ 6-20. On September 21, 2004, Kristy E. Koelsch and John F. Koelsch brought a professional liability action in the Cumberland County Court of Common Pleas, No. 04-4744. Id. at ~ 5. 8 Complaint, ~~ 21, 23, 26. 2 1999, and radiation therapy.9 Radiation therapy was administered by Dr. Ditlow and conducted at Defendant Oakwood's facilities from February 15, 1999 to April 12, 1999. 10 In 2003, Plaintiffs wife was again diagnosed with ductal carcinoma in situ.1I A mastectomy was scheduled for January of 2004, but was not performed until April 26, 2004.12 The lab results from the tissue removed during the mastectomy revealed metastatic ductal carcinoma.13 In the interim, on December 18,2003, Plaintiffs wife had gone to the emergency room at Holy Spirit Hospital complaining of "right side pain, right shoulder pain. . . , right upper quadrant discomfort and nausea. . . .,,14 On May 24, 2005, Plaintiffs wife "succumbed to the cancer and died.,,15 Her death was the result of professional negligence. 16 Plaintiffs complaint contains the following claims against Defendant Oakwood: negligence/survival action (Count IV),17 negligent infliction of emotional distress (Count V),18 loss of consortium (Count VI),19 and wrongful death (Count IX).2o With respect to the negligent infliction of emotional distress claim, Plaintiff alleges that he: 9 Complaint, ~~ 21,26,39-40. ]0 Complaint, ~~ 39-41, 45. 11 Complaint, ~~ 52-53. 12 Complaint, ~~ 54, 60-61. 13 Complaint, ~ 61. 14 Complaint, ~ 55. 15 Complaint, ~ 62. 16 Complaint, ~~ 6,8, 10, 13, 15, 18. 17 Complaint, ~~ 75-76. 18 Complaint, ~~ 77-86. 19 Complaint, ~~ 87-91. 20 Complaint, ~~ 97-98. 3 witnessed the aforesaid individual, joint, several and/or alternative negligence and carelessness of the defendants, and/or the immediate aftermath thereof. As a direct and proximate result thereof, plaintiff suffered sever injuries and damages including, but not limited to emotional distress, depression, stress, nightmares, sleeplessness, headaches, nausea, flashbacks, bodily tremors, panic attacks, rapid heart beat, profound depression. . . .21 Paragraph 14 of the complaint alleges: At all times material hereto, defendant, Oakwood, acted individually and/or by and through its parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein as well as those other doctors, nurses, technicians and/or therapists identified in its medical records pertaining to plaintiffs, who were then and there acting within the course and scope of their employment, agency and/or authority.22 Defendant Oakwood filed preliminary objections to the complaint asserting that: (I) Plaintiff s claim arising out of corporate negligence should be dismissed with prejudice; (2) Plaintiffs claim for negligent infliction of emotional distress should be dismissed with prejudice; and (3) paragraph 14 of Plaintiffs complaint should be stricken for insufficient specificity pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(3).23 DISCUSSION Preliminary Objections. According to Pennsylvania Rule of Civil Procedure 1028(a) preliminary objections may be filed on the grounds of "failure of a pleading to conform to law or rule of court . . . ; insufficient specificity in a pleading; [or] legal insufficiency of a pleading (demurrer)." Pa. R.C.P. 1028(a)(2)-(4). 21 Complaint, ~~ 79-80. 22 Complaint, ~ 14. 23 Preliminary Objections of Oakwood Center Radiation Oncology to Plaintiffs Complaint, filed February 28, 2006. 4 In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a complaint, a court must "must accept all material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619,621 (1995) (citations omitted). A preliminary objection in the nature of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that no recovery is possible." Powell, 539 Pa. at 489, 653 A.2d at 621. Corporate Negligence. A cause of action for corporate negligence is based on the failure to "uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being. . .. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient." Thompson v. Nason Hospital, 527 Pa. 330, 339,591 A.2d 703, 707 (1991). To plead corporate negligence, an individual must allege that: 1. the hospital deviated from the standard of care; 2. the hospital had actual or constructive notice of the defects or procedures that created the harm; and 3. the hospital's act or omission was a substantial factor in bringing about the harm. Kennedy v. Butler Memorial Hospital, 2006 PA Super. 138, ~10, 901 A.2d 1042, 1045 (2006) (citations omitted). Corporate negligence is an evolving doctrine under Pennsylvania law. See Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997); Oven v. Pascucci, 46 Pa. D. & C.4th. 506 (Lackawanna County 2000). The Pennsylvania Supreme Court has not yet addressed the question of the extension of this type of corporate liability to health care facilities and providers other than hospitals. However, the Pennsylvania Superior Court has extended the corporate negligence doctrine to include health maintenance organizations. Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998). Generally, a preliminary objection in the nature of a demurrer should be granted only when a case is free from doubt. See Bower v. Bower, 531 Pa. 54, 56, 611 A.2d 181, 182 (1992). At this time the facts of record are limited, and in the court's view a 5 dismissal of Plaintiff s claim as it relates to corporate negligence would, at this stage, be premature. Accordingly, Defendant Oakwood's preliminary objection in this regard will be denied. Negligent Infliction of Emotional Distress. As a general rule, in order for an individual to recover on a claim for negligent infliction of emotional distress the individual must be able to provide affirmative evidentiary answers to three questions: (1) Whether plaintiff was located near the scene of the accident[,] as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Sinn v. Burd, 486 Pa. 146, 170-71, 404 A.2d 672, 685 ( 1979) (citation omitted). In a negligent infliction of emotional distress case, "[t]he gravamen of the observance requirement is clearly that the plaintiff. . . must have observed the traumatic infliction of injury on his or her close relative at the hands of the defendant." Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 104, 597 A.2d 671, 692 (1991). Moreover, a plaintiff must experience a "sensory and contemporaneous observance" of a "discrete and identifiable traumatic event." Love v. Cramer, 414 Pa. Super. 231, 234, 606 A.2d 1175, 1177 ( 1992) (citations omitted). In the present case, Plaintiff alleges that he "witnessed the aforesaid individual, joint, several and/or alternative negligence and carelessness of the defendants, and/or the immediate aftermath thereof. ,,24 In Plaintiff s brief submitted in opposition to Defendant Oakwood's preliminary objections, Plaintiff argues as follows: In keeping with the foreseeability test set forth in Sinn, it is foreseeable that the plaintiff husband would be emotionally harmed by learning in December of 2003 that his wife's cancer had recurred and that the treatment provided by the 24 Complaint, ~ 79. 6 defendants had failed. Thereafter, he witnessed the aftermath of the defendants' negligent conduct which resulted in his wife's death. Furthermore, in keeping with cases such as Krysmalski, plaintiff husband witnessed his wife's condition deteriorate throughout the weeks and days preceding her death. Upon witnessing this event, Plaintiff husband immediately realized her condition was caused by defendant's negligen[ ce] and suffered emotional injury. Thus, defendants' negligen[ ce] was the proximate cause of plaintiff s emotional distress.25 Although the Superior Court in Krysmalski v. Tarasovich, 424 Pa. Super. 121, 131, 622 A.2d 298, 303 (1993), held that visual observation at the precise moment of impact is not required, the Court retained a focus on "whether the emotional shock was immediate and direct rather than distant and indirect." Furthermore, the facts in Krysmalski indicate that the plaintiff mother was standing in the check-out line at the front of a grocery store, while her children were waiting at the entrance of the store which was visible from inside the store, and although the mother did not see the precise moment of impact, she heard a car crash through the barrier and hit her children. Id. at 130, 622 A.2d at 303. Based on the allegations set forth in the pleadings, Plaintiff has failed to state a cause of action for negligent infliction of emotional distress. Although the complaint alleges that Plaintiff witnessed the negligence of Defendant Oakwood, it does not allege that he observed a traumatic infliction of injury on his wife by Defendant Oakwood. Furthermore, the complaint does not allege an identifiable discrete traumatic event upon which to base a claim for negligent infliction of emotional distress. Consequently, Plaintiffs preliminary objection in this regard will be granted. Specific Pleading. In reviewing a preliminary objection in the nature of a motion for a more specific pleading 25 Plaintiff's Brief in Support of Response in Opposition to the Preliminary Objections of Defendant Oakwood Center Radiation Oncology to Plantiff's Complaint, page 20, submitted September 1,2006. 7 [t]he question to be decided. . . is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a response. . .. A motion for a more specific pleading will be denied when the objecting party may be presumed to have at least as much information as does the pleader. In addition, a preliminary objection based on lack of particularity may, in certain cases, be denied on the ground that discovery is a more appropriate vehicle to resolve the matter. Cline v. Glen Moore Transport, Inc., No. 98-3636 Civil Court, slip opinion, (Cumberland County, November 19, 1999) (citations omitted); see also McAlister v. Bryan, 42 Cumbo LJ. 463 (1993). In the present case, Defendant Oakwood asserts that paragraph 14 of Plaintiff s complaint should be stricken for insufficient specificity of a pleading because it does not provide Oakwood notice as to the nature of the claims or the identity of the actors. The court is of the view that Plaintiff's pleading is adequately specific to enable Defendant Oakwood to prepare a response. Furthermore, the identities of Defendant Oakwood's agents and employees would seem to be a matter as to which Defendant Oakwood would have as much knowledge as Plaintiff. Additionally, individual identification can be obtained in the discovery process without prejudice to Defendant Oakwood. Therefore, for present purposes, Paragraph 14 of the complaint sufficiently identifies the negligent acts and actors to survive Defendant's preliminary objection. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 20th day of October, 2006, upon consideration of Defendant Oakwood Center Radiation Oncology's Preliminary Objections to Plaintiffs Complaint, as well as the oral arguments and briefs submitted on the matter, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant Oakwood's preliminary objection to Plaintiff's claim arising out of alleged corporate negligence is denied; 2. Defendant Oakwood's preliminary objection in the nature of a demurrer to Plaintiff's cause of action for negligent 8 infliction of emotional distress is granted and Count V of Plaintiff's Complaint is dismissed; and 3. Defendant Oakwood's preliminary objection to paragraph 14 of Plaintiff's Complaint is denied. BY THE COURT, sf J. Wesler Oler, Jr. J. Wesley Oler, Jr., 1. Peter M. Villari, Esq. Paul D. Brandes, Esq. Theresa L. Giannone, Esq. Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 Attorneys for Plaintiff Thomas M. Chairs, Esq. Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 Attorney for Defendant Holy Spirit Health System Lauralee B. Baker, Esq. Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendant Charles D. Evancho, M.D. Kevin E. Osborne, Esq. Osborne & Rettig, P.C. 126-128 Walnut Street 9 Harrisburg, P A 17101 Attorney for Defendant Richard J. Ditlow, Jr., M.D. B. Craig Black, Esq. Lauren M. Burnette, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Attorneys for Defendant Oakwood Center Radiation Oncology 10 . . DICKIE, MCCAMEY & CIllLCOTE, P.C. BY: FRANCIS E. MARSHALL, JR., ESQillRE ATTORNEY ID. NO. 27594 BY: THOMAS M. CHAIRS, ESQillRE ATTORNEY ID. NO. 78565 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717) 731-4800 (Tel) (717) 731-4803 (Fax) JOHN F. KOELSCH, Individually and as Administrator of the ESTATE ofKRISTY KOELSCH, Deceased Plaintiff v HOLY SPIRIT HEALTH SYSTEM, HOSPITAL, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, HOLY SPIRIT HOSPITAL, CHARLES D. EVANCHO, M.D., RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY Defendants ATTORNEY FOR DEFENDANTS HOLY SPIRIT HOSPITAL, HOLY SPIRIT HEALTH SYSTEM and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : NO. 05-6320 : CIVIL ACTION - : MEDICAL PROFESSIONAL : LIABILITY ACTION : JURY TRIAL DEMANDED REPL YOF DEFENDANT DOL Y SPIRIT DOSPIT AL, DOL Y SPIRIT DEAL TD SYSTEM.AND HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY TO PLAINTIFF'S. MOTION FOR EXTENSION OF TIME TO OBTAIN AND FILE CERTIFICATES OF MERIT AGAINST DEFENDANTS AND NOW, comes Defendant Holy Spirit Hospital, by and through its counsel, DICKIE, MCCAMEY & CHILCOTE, P.C., by Thomas M. Chairs, Esquire, and files the following Reply to Plaintiffs Motion for Extension of Time to Obtain and File Certificates of Merit Against Defendants, and in support thereof avers as follows: 1. Admitted in part, denied in part. It is admitted that Plaintiff has filed a claim against various healthcare professionals alleging medical negligence resulting from the diagnosis and treatment of Plaintiffs decedent, Kristy Koelsch. It is specifically denied that Holy Spirit Hospital was in any way negligent in its care and/or treatment of Plaintiffs decedent. 2. Denied. Pa.R.C.P. 1042.3(d) does not "permit as many extensions as required." Rather, the Note to Rule 1 042.3( d) provides that while there is no restriction on the number of extensions which a court may grant, each order must be entered pursuant to a new motion based upon cause shown. 3. It is admitted only that Charles Evancho, M.D. and Richard Ditlow, Jr., M.D., are named as Defendants in the instant matter. It is specifically denied that Holy Spirit Hospital was Dr. Evancho's employer at any time material to the instant matter. Holy Spirit Hospital is without sufficient knowledge and information to form a belief as to the truth of the remainder of the averments in Paragraph 3 of Plaintiff s Motion, and as such, the same averments are denied. 4. Admitted. 5. Holy Spirit Hospital is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 5 of Plaintiffs Motion, and as such, the same averments are denied. Plaintiffs previously filed Motion for Extension of Time, filed on or about April 5, 2006, contains the same Paragraph 5 as Plaintiff s instant Motion. As such, Plaintiffs instant Motion contains no new factual basis to justify an extension of time and is no different than the initial request for an extension of time. 6. Holy Spirit Hospital is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 6 of Plaintiff s Motion, and as such, the same averments are denied. Plaintiffs previously filed a Motion for Extension of Time, filed on or about April 5, 2006, contains the same Paragraph 6 as Plaintiff's instant Motion. As such, 2 Plaintiff s instant Motion contains no new factual basis to justify an extension of time and is no different than the initial request for an extension of time. 7. Holy Spirit Hospital is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 7 of Plaintiffs Motion, and as such, the same averments are denied. Plaintiffs previously filed a Motion for Extension of Time, filed on or about April 5, 2006, contains the same Paragraph 7 as Plaintiffs instant Motion. As such, Plaintiff s instant Motion contains no new factual basis to justify an extension of time and is no different than the initial request for an extension of time. 8. It is admitted that Plaintiff requested the pathology slides from Holy Spirit Hospital. The slides were produced to Plaintiff by Holy Spirit Hospital on or about July 17, 2006 and Plaintiffs counsel signed as having received them on or about July 19, 2006. (See, Receipt Agreement for Production of Slides, attached hereto as Exhibit "A"). Despite the executed stipulation, which set forth that the slides were to be returned by September 4, 2006, the slides have yet to be returned by Plaintiff. 9. It is admitted that Plaintiff requested the deposition of Dr. Soto-Hamlin. Holy Spirit Hospital is without sufficient knowledge and information to form a belief as to the truth of the remaining averments in Paragraph 9 ()f Plaintiff s Motion, and as such, the same averments are denied. By way of further response, pursuant to Pa.R.C.P 1042.5, when a plaintiff has failed to file certificate of merit, he is limited to requesting the production of documents and may not seek any other discovery, absent the leave of court. As such, Plaintiff was required to seek the leave of court to conduct the deposition of Dr. Soto-Hamlin, defendant in "first action." Plaintiffs reason for seeking the deposition, which was to provide Dr. Soto-Hamlin's deposition 3 to his "pathology expert," is not a sufficient basis to grant Plaintiff another extension of time to obtain and file certificates of merit. 10. It is admitted that the deposition of Dr. Soto-Hamlin was originally scheduled for May 19, 2006. It is specifically denied that the deposition was rescheduled for July 26, 2006; rather, the deposition was rescheduled for July 28, 2006. By way of further response, Dr. Soto- Hamlin's deposition was postponed for various reasons; including the fact that Plaintiff had yet to file certificates of merit as to any of the defendants in the "second action." 11. Holy Spirit Hospital is without sufficient knowledge or information as to the truth of the averments in Paragraph 11 of Plaintiff s Motion, and as such, the same averments are denied. By way of further response, on July 26, 2006, counsel for Dr. Soto-Hamlin forwarded correspondence to all counsel, which included reference to the fact that counsel for Plaintiff determined that four (4) hours was an insufficient amount of time for Dr. Soto-Hamlin's deposition, and confirmed that the July 28,2006 deposition was postponed. 12. It is admitted only that Dr. Soto-Hamlin's deposition took place on October 12, 2006. 13. Holy Spirit Hospital is without sufficient knowledge or information as to the truth of the averments in Paragraph 13 of Plaintiffs Motion, and as such, the same averments are denied. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 4 19. Denied. By way of further response, the averments in Paragraph 19 of Plaintiffs Motion contain conclusions of law to which no response is required. It is specifically denied that the pathology slides were not available until "recently," as Plaintiff has previously represented to this Honorable Court that he was in receipt of the slides on July 17, 2006. (See, Paragraph 11 of Plaintiffs Response in Opposition to Defendant's Petition to Make Rule dated April 13, 2006 Absolute, filed of record on or about August 8, 2006). As such, Plaintiffs pathology experts have had almost three (3) months to review Mrs. Koelsch's slides and render an opinion to Plaintiffs counsel. Additionally, the fact that Dr. Soto-Hamlin's deposition transcript was not available "until recently" is immaterial to Plaintiffs instant request for an extension of time by which to file certificates of merit. Pa.R.c.P. 1042.5 requires a plaintiff to seek the leave of court to conduct discovery when a certificate of merit has not been filed. Plaintiff has not filed certificates of merit as to any defendant in the instant matter, and Plaintiff did not seek leave of court to take Dr. Soto-Hamlin's deposition. As such, Plaintiff may not seek to benefit from the improperly procured discovery and receive an extension of time to have his experts review Dr. Soto-Hamlin's deposition transcript. The language in Pa.R.c.P. 1042.5 was intended to prevent a plaintiff, who has not filed certificates of merit, from seeking discovery not within the scope of the rule and using such information as the basis for filing a certificate of merit. 20. Admitted in part. Note to Pa.R.c.P. 1042.3(d) does provide that "the court shall give appropriate consideration to the practicalities of securing expert report review." However, such consideration is not infinite. The Note provides examples of where certain practicalities must be considered, such as where counsel is contacted several days before the expiration of the statute of limitations. 5 21. Holy Spirit Hospital is without sufficient knowledge or information as to the truth of the averments in Paragraph 21 of Plaintiffs Motion, and as such, the same averments are denied. By way of further response, the fact that Plaintiffs experts continue to allegedly be "busy" is no basis to justify unlimited extensions of time. 22. Denied. It is specifically denied that Holy Spirit Hospital has not experienced, and will not continue to experience, prejudice as a result of Plaintiffs failure to file a certificate of merit as to the allegations of negligence against Holy Spirit Hospital. Plaintiff s instant Motion is the second request for an extension of time by which to file certificates of merit. The instant motion is nothing more than a repeat of the original request, void of any appropriate basis for this Court to grant an extension of time for the filing of a certificate of merit as to Holy Spirit Hospital. Without cause shown, Plaintiff is not entitled to an additional extension of time. 23. Denied. By way of further response, the averments in Paragraph 19 of Plaintiffs Motion contain conclusions of law to which no response is required. By way of further response, Holy Spirit Hospital respectfully submits that because Plaintiff has failed to provide this Honorable Court with an appropriate basis for granting his Motion as to Holy Spirit Hospital, Plaintiff s request should be denied. WHEREFORE, Defendant Holy Spirit Health System, Holy Spirit Hospital of the Sisters of Christian Charity and Holy Spirit Hospital respectfully requests that this Honorable Court enter an Order denying Plaintiffs Motion for an Extension of Time to File Certificates of Merit. 6 Respectfully submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. Date: October 30, 2006 By: hall, Jr., Esquire Sup m 1. D. #27594 Thomas M. Chairs, Esquire Supreme Court 1.D. #78565 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, Holy Spirit Health System, Holy Spirit Hospital of the Sisters of Christian Charity and Holy Spirit Hospital 7 - i 'oi -\' J:>.. VillARI lAW Jul 192006 17:35 P.02 " 1 V 1\ lL 1m. \I nlYl c: , : I I I I J I If 0 V , No" 1840 ' p" 2 ' . - ... I" .; I I J I Iff . . ~ .. l, . , : . i .~AcmuME~RPRODucnON OPsLmEB ; . .;: : . ; . The u~od ~ ~ II ~1~ with I'IlIpOCt to twenty-~ (23) slidos Identified blow, ~hich pertabrto. :';" ' .: Pl8inti~1 nam~: I(risty":KoclscD Sli!ie NusDbers~ I See tist below . '1'1, . . , 899.187 99-02290 Koe1Ich + 'Conb'oJiBJ, 01116/1999 S99.187~i 99.02290 ~oe~' Ne.~trol Ot/16119?9 S99-187 99.02290 lCoellOh + ControJIPR 01/1'611999 , 899-187' 99. 29Q.IC.oeisch + Contro1/HBR2lneu 01116/1999 , . I I . :: S9~-6~H S9.9-6241 Level 4 : ~~241 S99-62~I Level 2 S99-6241 Leve13 i! ! S99~624D/l :S99-'624C : S9~624BI2 ! S~~24B/l : S9g.s24A ; ..~ :S99-6P4f127 Levell S~-624 ~/27 Leve12 : S99,..187B : S99.-187A , 999.-624G' S99,~24F/2 : S99~624}i'/1 : 899-624B i S99t~24D/2 ! , , , ' I . . I . The slides will be produced by H~ly ~pirit 'Hospitalsu1;ject to th", terms stated in this : Receip~ Asreemm:t. Upon reQeipt of the s1ide~, I agree to sign~ ~ {eceipt ~ the fonn attached : hereto and to proDiptly forward a copy to ~~el for Holy Spirit Hospital. The slides kv. been psoducod ~~ ~ a request bi the W1der~gued only 1br the . , purposes ~f inspection and/or examiDati~ by ~. expert. It is ij,ereby ~e4 that no markin& ' d88tr\1CtiV~ t~nitor al_tiQA of the ,s1i~, o~ auy portion of~ slides, ~ any manner , whatsoever will be perfonned. :':: ,! i - \I\ll/l.~\ l/l.'Il JU\, \~. L\l\lO ;~f\')YM . .. . .' ~ tlnl.'P'" tbDt \10\)' styitit~\.W la f>>.~ ....... .. .._..4 ~.~ ~ .r-' ~ ..,. . . . ~..e ~.;~ ~ ~- sS~ ,JISI'to.'1' . .... '. ". ..,alllll1\\ed \0 ~ . ; '.' · Ila. \0 n\C1dlk ~,. . ~ 'ptII!io"l apee& ~ ~ ~ vn1\ ~ ~ '10\\ VI\\bin fol\Y'""". (45) . ~.Ci \'100 Call1l' 11i1\ ~ s)1l.\O '1PS'_~...-4 ~ ~\eAS- ~ ~ ~~<1f 'f1'i Septel'4b" 4,~' 'l1\ll ~~~...,n bIl ~y en'd~ \0. ;;. if~s\i.a.is ~ DOt tisI1e~~:~~ Z be ent\.\\ed'", ~fstIlA.~ ~ btiD8 all. eP\\~ \O~. ~ .\\1\1I ::.,., ~,~ 'oY ~ $pin\ ~~ \11 ~ · . a\\~.,4-~~<1f~~~"~~' · Suob al:lIioP. ~- of""""""- '. . , .' \ '. ju\ 19 2006 17:35 . oft' 110. \ ~4~ ?', l U \ _" \ t \IIt_~""t1.1' 1/31 ~ov' ~~ . r;./~N/V(Jil.~ S\~ " .' , ' .:~ . .' . . I /' ; . . ~_.of~' . . It '\ . :", ,. . ~~,.~ . . . , I'" , . . I , . \ . \ , \ , , . , CERTIFICATE OF SERVICE AND NOW, this 30th day of October, 2006, I, Thomas M. Chairs, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record or parties involved by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa Giannone, Esquire VILLARI, BRANDES & KLINE, P.C. 8 Tower Bridge, Suite 400 161 Washington Street conshohocken, P A 19428 (Counsel for Plaintiff) Kevin E. Osborne, Esquire OSBORNE & RETTIG, P.C. 126-128 Walnut Street Harrisburg, P A 17101 (Counsel for Richard J. Ditlow, Jr., MD.)) Lauralee B. Baker, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 (Counsel for Charles D. Evancho, MD.) Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 () ~;: p....;) c::.l ;;:".;::1 C1'" c.') c; -l C..) o o -n --I :I::n nl t~; :n (:1 t~C) ---; -r ~ T", ()('") ~< rn 9 -)':--- "-':) ::.< -r.; ~r: r:-? ,. JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased, Plaintiff v. HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; and HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6320 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY OF DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO OBTAIN AND FILE CERTIFICATES OF MERIT AGAINST DEFENDANTS AND NOW comes Defendant, Oakwood Center Radiation Oncology (hereinafter referred to as "Oakwood Center"), by and through its attorneys, McKissock & Hoffman, P.C., who respectfully files the following Reply to Plaintiff's Motion for Extension of Time to Obtain and File Certificates of Merit Against Defendants, and in support thereof avers as follows: 1 . Admitted in part, denied in part. It is admitted that Plaintiff has filed a claim against various health care professionals wherein Plaintiff makes allegations of medical negligence arising from the diagnosis and treatment of Plaintiff's decedent, Kristy Koelsch. It is specifically denied that Oakwood Center was in any way negligent in its care and/or treatment of Plaintiff's decedent. 2. Denied as stated. Pa.R.C.P. 1042.3(d) does not "permit as many extensions as are required." Rather, the Note to Rule 1042.3(d) provides that while there is no restriction on 2 ,. the number of extensions which a court may grant, each order must be entered pursuant to a new motion based upon cause shown. 3. It is admitted only that Charles D. Evancho, M.D. and Richard J. Ditlow, Jr., M.D., are named as Defendants in the instant matter, together with their present or former employers. Oakwood Center is without sufficient knowledge and information to form a belief as to the truth of the remainder of the averments in Paragraph 3 of Plaintiff's Motion, and as such the same averments are denied. 4. Admitted. 5. Oakwood Center is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 5 of Plaintiff's Motion, and as such the same averments are denied. By way of further response, it should be noted that Plaintiff's previously filed Motion for an Extension of Time, filed on or about April 5, 2006, made identical averments as those in Paragraph 5 of Plaintiff's instant Motion as justification for his initial request for an extension of time by which to serve certificates of merit. Paragraph 5 contains no new justification for Plaintiff's instant request for an extension of time. 6. Oakwood Center is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 6 of Plaintiff's Motion, and as such the same averments are denied. By way of further response, it should be noted that Plaintiff's previously filed Motion for an Extension of Time, filed on or about April 5, 2006, made identical averments as those in Paragraph 6 of Plaintiff's instant Motion as justification for his initial request for an extension of time by which to serve certificates of merit. Paragraph 6 contains no new justification for Plaintiff's instant request for an extension of time. 7. Oakwood Center is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 7 of Plaintiff's Motion, and as such the same averments are denied. By way of further response, it should be noted that Plaintiff's previously filed Motion for an Extension of Time, filed on or about April 5, 2006, made identical averments as those in Paragraph 7 of Plaintiff's instant Motion as justification for his initial request for an 3 extension of time by which to serve certificates of merit. Paragraph 7 contains no new justification for Plaintiff's instant request for an extension of time. By way of further response, it is averred that the allegations in Paragraph 7 of Plaintiff's Motion have no relevance or application to the claims raised as against Oakwood Center. 8. Oakwood Center is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 8 of Plaintiff's Motion, and as such the same averments are denied. 9. It is admitted that Plaintiff requested the deposition of Dr. Soto-Hamlin. Oakwood Center is without sufficient knowledge and information to form a belief as to the truth of the remaining averments in Paragraph 9 of Plaintiff's Motion, and as such the same averments are denied. By way of further response, since Plaintiff had failed, as of the date of his request for Dr. Soto-Hamlin's deposition, to file a certificate of merit as to any of the defendants named in the "second action," Plaintiff was required to seek leave of court to conduct Dr. Soto-Hamlin's deposition for the purpose of providing her testimony to Plaintiff's "pathology expert." Plaintiff failed to do so, and as such, Plaintiff's desire to provide Dr. Soto-Hamlin's deposition testimony to his expert is insufficient justification for failure to produce certificates of merit, and cannot be used as grounds to grant Plaintiff another extension of time to obtain and file certificates of merit. By way of further response, it is averred that the allegations in Paragraph 9 of Plaintiff's Motion have no relevance or application to the claims raised as against Oakwood Center. 10. It is admitted that the deposition of Dr. Soto-Hamlin was originally scheduled for May 19, 2006. It is specifically denied that Dr. Soto-Hamlin's deposition was rescheduled for July 26, 2006; rather, the deposition was rescheduled for July 28, 2006. By way of further response, Dr. Soto-Hamlin's deposition was rescheduled due to a number of reasons, including the fact that Plaintiff had yet to file certificates of merit as to any of the named defendants in the above captioned matter. 11 . Oakwood Center is without sufficient knowledge or information as to the truth of the averments in Paragraph 11 of Plaintiff's Motion, and as such the same averments are denied. By way of further response, on July 27, 2006, counsel for Dr. Soto-Hamlin forwarded 4 correspondence to all counsel, which included reference to the fact that counsel for Plaintiff determined that four (4) hours was an insufficient amount of time for Dr. Soto-Hamlin's deposition, and confirmed that the July 28, 2006 deposition was postponed. 12. It is admitted only that Dr. Soto-Hamlin's deposition was rescheduled to take place on October 12, 2006, and that said deposition did occur on October 12, 2006. 13. Oakwood Center is without sufficient knowledge or information as to the truth of the averments in Paragraph 13 of Plaintiff's Motion, and as such the same averments are denied. 14. Admitted. With respect to Plaintiff's prior Motion for an Extension of Time, it should be noted that Plaintiff completely fails to provide this Court with new justification for his instant request for an extension of time to obtain and file certificates of merit as required by Pa.R.C.P. 1042.3(d). Plaintiff's instant explanation for why he has continued in his failure to file certificates of merit is identical to the explanation proffered on April 5, 2006 in Plaintiff's first Petition for an Extension of Time. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. The averments in Paragraph 19 of Plaintiff's Motion contain conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. By way of further response, it is specifically denied that the pathology slides were not available until "recently," as Plaintiff has previously represented to this Honorable Court that the slides were made available on July 17, 2006. (See Paragraph 11 of Plaintiff's Response in Opposition to Defendant's Petition to Make Rule dated April 13, 2006 Absolute, filed of record 5 on or about August 8, 2006). Plaintiff's pathology experts have had almost three (3) months to review Mrs. Koelsch's slides. By way of further response, Pa.R.C.P. 1042.5 provides that except for the production of documents or the entry upon property for inspection, a plaintiff who has raised a professional negligence claim cannot, without leave of court, conduct any discovery before a certificate of merit has been filed. Instantly, Plaintiff has still failed to file certificates of merit as to any of the named defendants in this matter, and Plaintiff did not seek leave of court to take Dr. Soto-Hamlin's discovery deposition. As such, the fact Dr. Soto- Hamlin's deposition transcript was not available "until recently" is immaterial to Plaintiff's instant request for an extension of time by which to file certificates of merit. Moreover, it is averred that the allegations in Paragraph 19 of Plaintiff's Motion have no relevance or application to the claims raised as against Oakwood Center. 20. The averments in Paragraph 20 are admitted in that while the Note to Pa.R.C.P. 1042.3(d) provides that "the court shall give appropriate consideration to the practicalities of securing expert review" (emphasis added), such consideration is clearly not without its limits. The Note further provides examples of situations where in such practicalities must be considered, as in situations wherein counsel is not contacted until several days before the expiration of the statute of limitations. 21. Oakwood Center is without sufficient knowledge and information to form a belief as to the truth of the averments in Paragraph 21 of Plaintiff's Motion, and as such the same averments are denied. By way of further response, although Plaintiff characterizes his experts as "busy, practicing professionals," this representation is immaterial to the issue currently pending before this Court. The "busy" schedules of Plaintiff's experts do not justify unlimited extensions of time for confirmation of meritorious causes thereby permitting counsel to execute certificates of merit. 22. Denied. It is specifically denied that Oakwood Center has not experienced, and will not continue to experience, prejudice as a result of Plaintiff's failure to file a certificate of merit as to the allegations of negligence against Oakwood Center. Plaintiff's instant Motion is the second request for an extension of time by which to file certificates of merit, and to date, Plaintiff has wholly failed to articulate any basis for this Court to grant an extension of time for 6 the filing of a certificate of merit as to Oakwood Center. Without cause shown, Plaintiff is not entitled to an additional extension of time. 23. The averments in Paragraph 23 of Plaintiff's Motion contain conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. By way of further response, Oakwood Center respectfully submits that because Plaintiff has failed to provide this Court with an appropriate basis for granting his Motion as to Oakwood Center, Plaintiff's request should be denied. WHEREFORE, Defendant Oakwood Radiation Center respectfully requests that this Honorable Court enter an order denying Plaintiff's Motion for an Extension of Time to File Certificates of Merit. Respectfully submitted, McKissock & Hoffman, P.C. By: Dated:~ B.Cr 1.0. .: 36818 Lauren M. Burnette, Esquire 1.0. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Center Radiation Oncology 7 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Reply to Plaintiff's Motion for Extension of Time to File Certificates of Merit 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: Peter M. Villari, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 ( Counsel for Plaintiff) Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 (Counsel for Holy Spirit Health System Holy Spirit Hospital of the Sisters of Christian Charity Holy Spirit Hospital) Lauralee Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 (Counsel for Charles D. Evancho, M.D.) 8 Dated: (6)~lol()(p I ' Kevin E. Osborne, Esquire 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for Richard J. Ditlow, Jr., M.D.) McKissock & Hoffman, P.C. By: Ig a , I. . 0.: 36818 ren M. Burnette, Esquire 1.0. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Center Radiation Oncology 9 C"} {~.;.. '., ...-, r~~-::) .c:.;' Q ". .' ........; r-.", --1 ~j c'"' :.n a .< OSBORNE & RETTIG, P.C. . Kevin E. Osborne, Esquire Attorney J.D. #34991 James DeCinti, Esquire Attorney J.D. #77421 126-128 Walnut Street Harrisburg, P A 171 01 (717) 232-3046 (Fax) (717) 232-3538 Attorneys for Defendant Richard J. Ditlow, M.D. JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. Docket No. 05-6320 HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY; Defendants. JURY TRIAL DEMANDED Defendant Richard J. Ditlow, Jr., M.D. by and through undersigned counsel, hereby joins in the response of Defendant Oakwood Center Radiation Oncology to Plaintiffs' Petition for Extension of Time to obtain Certificates of Merit recently filed in this matter. Respectfully submitted, 'tokJ Dated: \,,0'\111 By: Kev! E. Osborne, E quire Supreme Ct. I.D. #34991 James DeCinti, Esquire Supreme Ct. J.D. #77421 126-128 Walnut Street Harrisburg, P A 17101 (717) 232-3046 Attorneys for Defendant Richard J. Ditlow, Jr., M.D. 2 I, James DeCinti, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa I. Giannone, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (Attorneys for Plaintiffs) Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P. O. Box 1140 Lebanon, P A 17042-1140 Lauralee B. Baker, Esquire Margolis Edelstein P.o. Box 932 Harrisburg, P A 171 08-0932 (Attorneys for Defendant Dr. Evancho) B. Craig Black, Esquire McKissock & Hoffinan 2040 Linglestown Road Suite 302 Harrisburg, PAl 711 0 (Attorneys for Defendant Oakwood Center Radiation Oncology) Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (Attorneys for Defendants Holy Spirit Hospital, Holy Spirit Health System and Holy Spirit Hospital of the Sisters of Christian Charity) Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 OSBOj;;:IG' P.c. By: '\ TV James DeCinti, Esquire Dated: ( l) I" 7(1:>" Attorneys for Defendant, Richard J. Ditlow, Jr., M.D. Q c z~_ ~,y~;; ~?;:,c ~!~..~ f~: -":.,.,4, . :: 1" ~- _ , (-;C'-i.,j ];-~ ~;:;. ":J ~ ~) c;..'" d" o C) _A (,.' o ~ -1 7nP: _\) t!) - ~1 \..,) i~~_(?:, <,'-~:. ~:;? {~\\~ 3 'v- .~ -0 ::i~ t;? -- o .... ;. VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney LD. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOl Y SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Paul D. Brandes, Esquire, attorney for Plaintiff, hereby certify that a copy of the October 20,2006 Rule to Show Cause with regard to Plaintiffs Motion for Extension of Time to Obtain Certificates of Merit has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 26th day of October, 2006: Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.c. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 ...... i Kevin Osborne, Esquire Osborne and Rettig, P.c. 126-128 Walnut Street Harrisburg, PA 17101 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PAl 711 0 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, P A 17042-1140 VILLARI, BRANDES & KLINE, P.c. By: ~ c:.::> 0...... o Co, -'-\ C) "" .-\ ~-(\ \\\? \.-;''''' -Cl \-:-:; ..'~,"'\--,) /:-:') )-"\ ~ 'r" t....,. .;~' -)..:, (,;J o ..-c (~~'/l ;11) ".4 _...N. "....;"'" ~ .' - cP JOHN F. KOELSCH, individually And as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOL Y SPIRIT HEALTH SYSTEM,: NO. 2005 - 6320 CIVIL TERM et al Defendant CIVIL ACTION - LA W ORDER OF COURT AND NOW, this 13TH day of NOVEMBER, 2006, upon consideration of Plaintiffs "Motion for Extension of Time to Obtain and File Certificates of Merit Against Defendants" Responses thereto the motion is GRANTED. Plaintiff is given an additional sixty (60) days to file said certificate or certificates of~~r.iL. ~~e. CO~) ~1 Edward E. Guido, J. Lauralee B. Baker, Esquire Il-/4-0G, {l~ ~~ .y1s Paul D. Brandes, Esquire Theresa Giannone, Esquire Thomas M. Chairs, Esquire Kevin Osborne, Esquire B. Craig Black, Esquire Craig Stone, Esquire Wiley P. Parker, Esquire '''-t'--.'f',tr'\~ "';/~! LJ 8 il :! II,!\! fJ I AON 9002 AtlVlOi\Ci . :1H1 ;jO 381:1-1(i-(J:nlj PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be type written and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court, JOHN F. KOELSCH, individually and as Administrator of the Docket No. 05-6320 EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Plaintiffs, vs. JURY TRIAL DEMANDED HOL Y SPIRIT HEALTH SYSTEM, et. al. Defendants. 1. State matter to be argued: Plaintiff's Motion for Extension of Time to Obtain Certificates of Merit 2. Identify counsel who will argue case: (a) for plaintiff: Theresa L. Giannone, Esquire, Villari, Brandes & Kline, 8 Tower Bridge, Suite 400,161 Washington Street, Conshohocken, PA 19428 (b) for defendants: Thomas M. Chairs, Esquire, Dickie, McCamey & Chilcote, P.c., 1200 Camp Hill Bypass, Suite 205, Camp Hill, P A 17011 on behalf of Defendants Holy Spirit Hospital, Holy Spirit Health System and Holy Spirit Hospital of the Sisters of Christian Charity James DeCinti, Esquire, Osborne & Rettig, P.C., 126-128 Walnut Street, Harrisburg, PA 17101 on behalf of Defendant Richard J. Ditlow, M.D. B. Craig Black, Esquire, McKissock & Hoffman, P.c., 2040 Linglestown Road, Suite 302, Harrisburg, P A 17110 on behalf of Defendant Oakwood Center Radiation Oncology continued on next page... 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 28, 2007 y/fl~t/?~ Signature Theresa L. Giannone Print your name Date: November 8, 2006 Attorney for Plaintiff John F. Koelsch VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney I.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon, P A 17020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOLY SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Theresa L. Giannone, Esquire, attorney for Plaintiff, hereby certify that a copy of the Praecipe for Listing Case for Argument with regard to Plaintiffs Motion for Extension of Time to Obtain Certificates of Merit has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 8th day of November, 2006: Laura1ee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 . ' Kevin Osborne, Esquire Osborne and Rettig, P.c. 126-128 Walnut Street Harrisburg, P A 17101 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PAl 7112 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PAl 7110 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 VILLARI, BRANDES & KLINE, P .C. BY:~ ~~f- Theresa L. Giannone, Esquire Attorney for Plaintiff o ~~ ..;: r-j ~ ce::> u..... -~ (,.:"'t .oe.:.',: en a (.'-. ." C) - ~ JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY KOELSCH, deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 05-6320 HOLY SPIRIT HEALTH SYSTEM, MEDICAL PROFESSIONAL LIABILITY individually and/or doing business as Holy ACTION Spirit of the Sisters of Christian Charity and/or doing business as Holy Spirit CIVIL ACTION - LAW Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; and HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD J. DITLOW, JR., M.D. and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD To: John F. Koelsch c/o Peter M. Villari, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Consohocken, PA 19428 You are hereby notified to file a written response to the enclosed Answer and New Matter pursuant to Pa.R.C.P. 1030 within 20 days from service hereof or a judgment may be entered against you. DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Oakwood Center Radiation Oncology (hereinafter referred to as "Oakwood Center"), by and through its attorneys, McKissock & Hoffman, P.C., and respectfully files the following Answer and New Matter to Plaintiff's Complaint, and in support thereof avers as follows: T 1 . Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 1 of Plaintiff's Complaint, and as such, the same averments are denied. 2. Admitted in part, denied in part. It is admitted, based upon information available to Oakwood Center, that Kristy E. Koelsch died on or about May 24,2005. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in Paragraph 2 of Plaintiff's Complaint, and as such, the same averments are denied. 3. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 3 of Plaintiff's Complaint, and as such, the same averments are denied. By way of further response, Paragraph 3 of Plaintiff's Complaint contains conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. 4. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 4 of Plaintiff's Complaint, and as such, the same averments are denied. By way of further response, Paragraph 4 of Plaintiff's Complaint contains conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. 5. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 5 of Plaintiff's Complaint, and as such, the same averments are denied. By way of further response, Paragraph 5 of Plaintiff's Complaint contains conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. All allegations incorporated into Paragraph 5 of Plaintiff's Complaint from the batter docketed at 04-4744, to the extent applicable to Oakwood Center, are denied. 6. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 6 of Plaintiff's Complaint, and as such, the same averments are denied. 2 w 7. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 7 of Plaintiff's Complaint, and as such, the same averments are denied. 8. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 8 of Plaintiff's Complaint, and as such, the same averments are denied. 9. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 9 of Plaintiff's Complaint, and as such, the same averments are denied. 10. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 10 of Plaintiff's Complaint, and as such, the same averments are denied. 11. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 11 of Plaintiff's Complaint, and as such, the same averments are denied. 12. The averments in Paragraph 12 of Plaintiff's Complaint are for the convenience of reference only and do not require a response. 13. Admitted in part, denied in part. It is admitted that Oakwood Center exists under the laws of the Commonwealth of Pennsylvania. By way of further response, Oakwood Center's principal place of business is located at 880 Century Drive, rather than at 889 Century Drive as alleged by Plaintiff. It is specifically denied that Oakwood Center is a "health care system, hospital, health care clinic andlor other similar entity." By way of further response, it is specifically denied that Oakwood Center provides "nursing care andlor hospital services to the public." 3 14. Denied. Paragraph 14 of Plaintiff's Complaint contains conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. By way of further response, Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 14 of Plaintiff's Complaint, and as such, the same averments are denied. 15. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 15 of Plaintiff's Complaint, and as such, the same averments are denied. 16. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 16 of Plaintiff's Complaint, and as such, the same averments are denied. 17. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 17 of Plaintiff's Complaint, and as such, the same averments are denied. 18. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 18 of Plaintiff's Complaint, and as such, the same averments are denied. 19. Admitted in part, denied in part. It is admitted that at times material to the claims set forth in Plaintiff's Complaint, Dr. Ditlow specialized in radiation oncology. It is specifically denied. That Dr. Ditlow specialized in radiology. 20. Admitted in part, denied in part. It is admitted that Dr. Ditlow was an employee of Oakwood Center. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in Paragraph 20 of Plaintiff's Complaint, and as such, the same averments are denied. 4 21. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 21 of Plaintiff's Complaint, and as such, the same averments are denied. 22. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 22 of Plaintiff's Complaint, and as such, the same averments are denied. 23. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 23 of Plaintiff's Complaint, and as such, the same averments are denied. 24. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 24 of Plaintiff's Complaint, and as such, the same averments are denied. 25. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 25 of Plaintiff's Complaint, and as such, the same averments are denied. 26. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 26 of Plaintiff's Complaint, and as such, the same averments are denied. 27. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 27 of Plaintiff's Complaint, and as such, the same averments are denied. 28. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 28 of Plaintiff's Complaint, and as such, the same averments are denied. 5 29. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 29 of Plaintiff's Complaint, and as such, the same averments are denied. 30. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 30 of Plaintiff's Complaint, and as such, the same averments are denied. 31. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 31 of Plaintiff's Complaint, and as such, the same averments are denied. 32. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 32 of Plaintiff's Complaint, and as such, the same averments are denied. 33. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 33 of Plaintiff's Complaint, and as such, the same averments are denied. 34. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 34 of Plaintiff's Complaint, and as such, the same averments are denied. 35. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 35 of Plaintiff's Complaint, and as such, the same averments are denied. 36. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 36 of Plaintiff's Complaint, and as such, the same averments are denied. 6 37. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 37 of Plaintiff's Complaint, and as such, the same averments are denied. 38. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 38 of Plaintiff's Complaint, and as such, the same averments are denied. 39. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 39 of Plaintiff's Complaint, and as such, the same averments are denied. 40. Admitted in part, denied in part. It is admitted that Plaintiff's decedent presented to Oakwood Center on or about February 15, 1999. The averments in Paragraph 40 of Plaintiff's Complaint are admitted only to the extent that they are consistent with the medical records of Oakwood Center as they pertain to Plaintiff's decedent. To the extent that said averments are not consistent with said medical records, the averments are denied. 41. Denied as stated. By way of further response, the letter is a writing which speaks for itself. It is admitted that Dr. Ditlow authored correspondence dated February 15, 1999. 42. Admitted in part, denied in part. The averments in Paragraph 42 of Plaintiff's Complaint are admitted only to the extent that they are consistent with the medical records of Oakwood Center as they pertain to Plaintiff's decedent. To the extent that said averments are not consistent with said medical records, the averments are denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 42 of Plaintiff's Complaint, and as such, the same averments are denied. 43. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 43 of Plaintiff's Complaint, and as such, the same averments are denied. Any inference arising from the averments in Paragraph 43 of 7 Plaintiff's Complaint that Oakwood Center was in any way negligent in its care and treatment of Plaintiff's decedent is specifically denied. 44. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 44 of Plaintiff's Complaint, and as such, the same averments are denied. Any inference arising from the averments in Paragraph 44 of Plaintiff's Complaint that Oakwood Center was in any way negligent in its care and treatment of Plaintiff's decedent is specifically denied. 45. Admitted in part, denied in part. The averments in Paragraph 45 of Plaintiff's Complaint are admitted only to the extent that they are consistent with the medical records of Oakwood Center as they pertain to Plaintiff's decedent. To the extent that said averments are not consistent with said medical records, the averments are denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 45 of Plaintiff's Complaint, and as such, the same averments are denied. 46. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 46 of Plaintiff's Complaint, and as such, the same averments are denied. Any inference arising from the averments in Paragraph 46 of Plaintiff's Complaint that Oakwood Center was in any way negligent in its care and treatment of Plaintiff's decedent is specifically denied. 47. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 47 of Plaintiff's Complaint, and as such, the same averments are denied. Any inference arising from the averments in Paragraph 47 of Plaintiff's Complaint that Oakwood Center was in any way negligent in its care and treatment of Plaintiff's decedent is specifically denied. 48. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 48 of Plaintiff's Complaint, and as such, the same averments are denied. Any inference arising from the averments in Paragraph 48 of 8 Plaintiff's Complaint that Oakwood Center was in any way negligent in its care and treatment of Plaintiff's decedent is specifically denied. 49. Denied as stated. The averments in Paragraph 49 of Plaintiff's Complaint are admitted only to the extent that they are consistent with the medical records of Oakwood Center as they pertain to Plaintiff's decedent. To the extent that said averments are not consistent with said medical records, the averments are denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 49 of Plaintiff's Complaint, and as such, the same averments are denied. 50. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 50 of Plaintiff's Complaint, and as such, the same averments are denied. Any inference arising from the averments in Paragraph 50 of Plaintiff's Complaint that Oakwood Center was in any way negligent in its care and treatment of Plaintiff's decedent is specifically denied. 51. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 51 of Plaintiff's Complaint, and as such, the same averments are denied. 52. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 52 of Plaintiff's Complaint, and as soch, the same averments are denied. 53. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 53 of Plaintiff's Complaint, and as such, the same averments are denied. 54. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 54 of Plaintiff's Complaint, and as such, the same averments are denied. 9 55. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 55 of Plaintiff's Complaint, and as such, the same averments are denied. 56. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 56 of Plaintiff's Complaint, and as such, the same averments are denied. 57. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 57 of Plaintiff's Complaint, and as such, the same averments are denied. 58. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 58 of Plaintiff's Complaint, and as such, the same averments are denied. 59. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 59 of Plaintiff's Complaint, and as such, the same averments are denied. 60. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 60 of Plaintiff's Complaint, and as such, the same averments are denied. 61. Denied. Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 61 of Plaintiff's Complaint, and as such, the same averments are denied. 62. Admitted in part, denied in part. It is admitted that according to the medical records available to Oakwood Center, Plaintiff's decedent passed away on or about May 24, 2005. Oakwood Center is without sufficient knowledge or information to form a belief as to the 10 truth of the remaining averments in Paragraph 62 of Plaintiff's Complaint, and as such, the same averments are denied. 63-68. The averments in Paragraph 63-68 of Plaintiff's Complaint contain conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. By way of further response, it is specifically denied that Oakwood Center was in any way negligent and/or careless, and/or that any negligence or carelessness of Oakwood Center in any way proximately caused any injury allegedly sustained by Plaintiff's decedent or by Plaintiff. COUNT I NEGLIGENCE/SURVIVAL ACTION PLAINTIFF V. DEFENDANT CHARLES D. EVANCHO. M.D. 69. Paragraphs 1 through 68 are hereby incorporated by reference as though more fully set forth herein. 70. The averments in Paragraph 70, including all sub-parts, are directed to parties other than Oakwood Center, and as such no response is required. To the extent a response is required, the averments are denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT II NEGLIGENCE/SURVIVAL ACTION PLAINTIFF V. DEFENDANT RICHARD J. DITLOW. JR.. M.D. 71. Paragraphs 1 through 70 are hereby incorporated by reference as though more fully set forth herein. 11 72. The averments in Paragraph 72, including all sub-parts, are directed to parties other than Oakwood Center, and as such no response is required. To the extent a response is required, the averments are denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT III NEGLIGENCE/SURVIVAL ACTION PLAINTIFF V. DEFENDANTS, HOLY SPIRIT HEALTH SYSTEM, INDIVIDUAllY AND/OR DOING BUSINESS AS HOLY SPIRIT OF THE SISTERS OF CHRISTIAN CHARITY AND/OR DOING BUSINESS AS HOLY SPIRIT HOSPITAL, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, INDIVIDUAllY AND/OR DOING BUSINESS AS HOLY SPIRIT HOSPITAL. AND HOLY SPIRIT HOSPITAL 73. Paragraphs 1 through 73 are hereby incorporated by reference as though more fully set forth herein. 74. The averments in Paragraph 74, including all sub-parts, are directed to parties other than Oakwood Center, and as such no response is required. To the extent a response is required, the averments are denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT IV NEGLIGENCE/SURVIVAL ACTION PLAINTIFF V. DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY 75. Paragraphs 1 through 75 are hereby incorporated by reference as though more fully set forth herein. 12 76. The averments contained in Paragraph 76, including all subparts, represent conclusions of law to which no response is required. To the extent a response is required, the same averments are denied, and strict proof thereof is demanded at the time of trial. Moreover, said averments, including all subparts, are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT V NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PLAINTIFF JOHN F. KOELSCH V. ALL DEFENDANTS 77. Paragraphs 1 through 76 are hereby incorporated by reference as though more fully set forth herein. 78-86. Count V of Plaintiff's Complaint was dismissed by Order of Court dated October 20,2006, and as such no further response is required. WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT VI LOSS OF CONSORTIUM (THROUGH DATE OF DEATH OF KRISTY E. KOELSCH) PLAINTIFF JOHN F. KOLSCH V. DEFENDANTS 87. Paragraphs 1 through 86 are hereby incorporated by reference as though more fully set forth herein. 88. The averments in Paragraph 88 of Plaintiff's Complaint contain conclusions of law to which no response is required. To the extent a response is required, the averments are denied. 13 . 89. The averments in Paragraph 89 of Plaintiff's Complaint contain conclusions of law to which no response is required. To the extent a response is required, the averments are denied. It is specifically denied that Oakwood Center was in any way negligent and/or careless, and/or that any negligence or carelessness of Oakwood Center in any way proximately caused any injury allegedly sustained by Plaintiff's decedent or by Plaintiff. 90. The averments in Paragraph 90 of Plaintiff's Complaint contain conclusions of law to which no response is required. To the extent a response is required, the averments are denied. It is specifically denied that Oakwood Center was in any way negligent and/or careless, and/or that any negligence or carelessness of Oakwood Center in any way proximately caused any injury allegedly sustained by Plaintiff's decedent or by Plaintiff. 91. The averments in Paragraph 91 of Plaintiff's Complaint contain conclusions of law to which no response is required. To the extent a response is required, the averments are denied. It is specifically denied that Oakwood Center was in any way negligent and/or careless, and/or that any negligence or carelessness of Oakwood Center in any way proximately caused any injury allegedly sustained by Plaintiff's decedent or by Plaintiff. WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT VII INFORMED CONSENT/BATTERY PLAINTIFF V. DEFENDANT. RICHARD J. DITLOW, JR.. M.D. 92. Paragraphs 1 through 91 are hereby incorporated by reference as though more fully set forth herein. 93-94. Paragraphs 93 through 94 are directed to parties other than Oakwood Center, and as such no response is required. To the extent a response is required, the averments are denied, and strict proof thereof is demanded at time of trial. 14 . WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT VIII PLAINTIFF V. DEFENDANTS 95. Paragraphs 1 through 94 are hereby incorporated by reference as though more fully set forth herein. 96. The averments in Paragraph 96 of Plaintiff's Complaint contain conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. By way of further response, Oakwood Center is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 96 of Plaintiff's Complaint, and as such the same averments are denied. WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. COUNT IX WRONGFUL DEATH PLAINTIFF, JOHN F. KOLSCH, AS ADMINISTRATOR OF THE ESTATE OF KRISTY E. KOLSCH V. DEFENDANTS 97. Paragraphs 1 through 96 are hereby incorporated by reference as though more fully set forth herein. 98. The averments in Paragraph 98 of Plaintiff's Complaint contain conclusions of law to which no response is required. To the extent a response is required, the same averments are denied. 15 ... ~ NEW MATTER 99. Paragraphs 1 through 98 are hereby incorporated by reference as though more fully set forth herein. 100. The recovery of medical expenses paid by any or for any party, including any insurance carrier, is barred pursuant to Section 508 of the Medical Care Availability and Reduction of Error Act (Act 13 of 2002 (40 Pa. S. S 1301.508)). 101. Oakwood Center hereby invokes all provisions of the Medical Care Availability and Reduction of Error Act to the extent such provisions constitute affirmative defenses to Plaintiffs' claims. 102. Plaintiff's claims are barred by the applicable Statute of Limitations. 103. Plaintiff's injuries and losses, if any, were caused in whole or in part by persons or events outside of the control of Oakwood Center. 104. Plaintiff's injury and losses, if any, were caused in whole or in part by persons not a party to the within action. 105. 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 Oakwood Center. 106. At all times relevant hereto, Oakwood Center 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. 107. Any acts and/or omissions of Answering Defendant were and are not the proximate cause or a substantial factor giving rise to Plaintiff's injuries and/or damages. 108. Plaintiff has failed to state a claim upon which relief can be granted. 16 . ., - . 109. All claims and causes of action pleaded against Oakwood Center are barred by Plaintiff's decedent's knowing and voluntary informed consent to the care in question. 110. Plaintiff's claims are barred by the doctrines of comparative or contributory negligence. 111 . To the extent that Oakwood Center utilized a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, Oakwood Center invokes the two schools of thought doctrine. WHEREFORE, Defendant Oakwood Center Radiation Oncology respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, and that Plaintiff's Complaint be dismissed with prejudice. Respectfully submitted, McKissock & Hoffman, P.C. By: oated:JJj /I, J 0& , I.D. No . 36818 La M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Center Radiation Oncology 17 , . J , . VERIFICATION I. 1-, n ~ if'o P COI.(j ~ hereby verily that the statements in Defendant Oakwood Center Radiation Oncology's Answer and New Matter to Plaintiff's Complaint 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. For: Oakwood Center Radiation Dated: /I//S/O& I { II! · ~ _ CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Answer and New Matter to Plaintiff's Complaint 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: Peter M. Villari, Esquire Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken,PA 19428 ( Counsel for Plaintiff) Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 (Counsel for Holy Spirit Health System Holy Spirit Hospital of the Sisters of Christian Charity Holy Spirit Hospital) Lauralee Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 (Counsel for Charles D. Evancho, M.D.) 18 . ... - Daled:~ Kevin E. Osborne, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for Richard J. Ditlow, Jr., M.D.) McKissock & Hoffman, P.C. By: B. Crai I 1.0. o. 36818 Lau n M. Burnette, Esquire 1.0. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, Oakwood Center Radiation Oncology 19 !-..., ~1 , --.l N ~~-t ~:5 .< r' . <...' .. .,. VILLARI, BRANDES & KLINE, P.C. By: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L Giannone, Esquire Attorney 1.0. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the ESTATE OF KRISTY E. KOELSCH, deceased 36 Jefferson Street Duncannon. PAl 7020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOL Y SPIRIT HEALTH SYSTEM, et. al. Defendants. PRAECIPE TO WITHDRAW TO: The Prothonotary Kindly withdraw the above referenced matter from the COUli's Civil Docket. Kindly mark the above referenced matter as "Discontinued and Ended" upon payment of your costs only. VUARG:7;/C By: Peter M. Villari, Esquire Attorney for Plaintiff VILLARI, BRANDES & KLINE, P.C. Bv: Peter M. Villari, Esquire Paul D. Brandes, Esquire Theresa L. Giannone, Esquire Attorney J.D. #26875, #59769 & #77148 Attorneys for Plaintiffs 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 (610) 729-2900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JOHN F. KOELSCH, individually and as Administrator of the EST ATE OF KRISTY E. KOELSCH, deceased 3() Jefferson Street Duncannon, PAl 7020 Docket No. 05-6320 Plaintiffs, vs. JURY TRIAL DEMANDED HOL Y SPIRIT HEALTH SYSTEM, et. al. Defendants. Certification of Service I, Peter M. Villari, Esquire, attorney for Plaintiff, hereby certify that a copy ofthe Praecipe to Withdraw has been served upon the Defendants and all other interested parties through their counsel as addressed below by regular, first class, postage prepaid mail on this 9th day of January, 2007: Continued on next page... ... Lauralee B. Baker, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Kevin Osborne, Esquire Osborne and Rettig, P.c. 126-128 Walnut Street Harrisburg, PA 17101 Craig Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Thomas M. Chairs, Esquire Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 VILLARI, BRANDES & KLINE, P.c. By: ~/~ Peter M. Villari, Esquire Attorney for Plaintiff ~ ~:~; ~ -< J'-...;l 0:::::::> C::1 -...J <- ~ ~-n r11;= ul=q .. rJ '-" ;:--""] L 1_....., {" } ,~2 5;~! eYe"') :.C: fT1 o --I ?:O ~ -:'7" ~ o -0 -".>~ ~" r:Y -1