Loading...
HomeMy WebLinkAbout06-3117ORIGINAL ROBERT LOY AND LINDA LOY, IN THE COURT OF COMMON PLEAS HIS WIFE, CUMBERLAND OUNTY, PENNSYLVANIA Plaintiffs V. No. 3 17 2006 GREGORY L. LEWIS, M.D., CIVIL ACTIO - LAW CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., MEDICAL MAL RACTICE Defendants JURY TRIAL EMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wi h to defend against the claims set forth in the following pages, ou must take action within twenty (20) days after this Complaint a #d Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you an a judgment may be entered against you by the Court without fu ther notice for any money claimed in the Complaint or for any o her claim or relief requested by the Plaintiff(s). You may lose oney 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 OFF CE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION OUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, TH S OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEEIOR NO FEE. Cumberland County Bar Associat 32 South Bedford Street Carlisle, Pennsylvania 1701 Phone: (717) 249-3166 (800) 990-9108 ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COUR' CUMBERLAND No. r.4G. 3!I CIVIL ACTIO] MEDICAL MAL. JURY TRIAL ] PLAINTIFFS' COMPLAINT AND NOW come the Plaintiffs, Robert Lod wife, by and through their attorney, David COSTOPOULOS, FOSTER & FIELDS, and respectfully in support of this Complaint: The Parties 1. Plaintiffs, Robert Loy and Linda Loy, individuals residing at R.D. 2, Box 61, Loys Pennsylvania 17047. OF COMMON PLEAS OUNTY, PENNSYLVANIA 2006 - LAW RACTICE EMANDED and Linda Loy, his J. Foster, Esquire, represent as follows his wife, are adult ?ille, Perry County, 2. Defendant, Gregory L. Lewis, M.D., is and at all times hereinafter referred to, was a physician duly icensed to practice his profession as provided by the laws of he Commonwealth of Pennsylvania and engaged in the practice o his profession at Carlisle Digestive Disease Associates, Ltd. an Carlisle Endoscopy Center, Ltd., 241 Alexander Spring Road, C rlisle, Cumberland County, Pennsylvania 17013. Plaintiff, Robert Loy, is asserting a professional liability claim against this Def ndant. 3. Defendant, Carlisle Digestive Disease ssociates, Ltd., is 1 and at all times hereinafter referred to, was a corporation duly authorized to do and doing business in he Commonwealth of Pennsylvania as a medical clinic with its prim ry place of business located at 241 Alexander Spring Road, Carlisl , Cumberland County, Pennsylvania 17013. Plaintiff, Robert L y, is asserting a professional liability claim against this De endant. 4. Defendant, Carlisle Endoscopy Cente , Ltd, is and at all times hereinafter referred to, was a corporati n duly authorized to do and doing business in the Commonwealth f Pennsylvania as a medical clinic/endoscopy center with its prim ry place of business located at 241 Alexander Spring Road, Carlisl , Cumberland County, Pennsylvania 17013. Plaintiff, Robert L y, is asserting a professional liability claim against this Def ndant. 5. At all relevant times herein, Defenda t, Gregory L. Lewis, M.D., was an actual or ostensible agent, serva t and/or employee of Defendants, Carlisle Digestive Disease As ociates, Ltd. and Carlisle Endoscopy Center, Ltd. Background Allegations 6. At all relevant times herein, Pla ntiff, Robert Loy, relied upon the professional judgment, abili y and knowledge of Defendant, Gregory L. Lewis, M.D., who in to n was acting as an actual or ostensible agent, servant and/or employee of Defendants, Carlisle Digestive Disease Associates, Ltd. an Carlisle Endoscopy Center, Ltd. 2 7. Plaintiff, Robert Loy, has a family history of colon polyps. 8. Because of this family and persc Plaintiff, Robert Loy, age 47 at the time, ur performed by Defendant, Gregory L. Lewis, clinic/endoscopy center of Defendants, Carli Associates, Ltd. and Carlisle Endoscopy Cen' personal medical medical history, ?rwent a colonoscopy D., at the medical e Digestive Disease r, Ltd., on January 22, 1997. 9. In the course of the colonoscopy, D fendant, Gregory L. Lewis, M.D., found a large nodular sessile olypoid mass in the hepatic flexure area of the colon of Pla ntiff, Robert Loy; multiple hot biopsies were taken, however, no attempt was made to remove the mass in its entirety. 10. The biopsy specimen consisted of ive tiny pieces of tissue and it was determined to be a tubular denoma. 11. Defendant, Gregory L. Lewis, M. ., recommended to Plaintiff, Robert Loy, that he undergo a sur eillance colonscopy the following year. 12. On January 30, 1998, Defendant, Gre cry L. Lewis, M.D., performed a second colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants Carlisle Digestive Disease Associates, Ltd. and Carlisle Endosco y Center, Ltd. 13. Although Defendant, Gregory L. Lewis, M.D., saw the large lesion in 1997, he was reportedly unable to loc to it and indicated 3 that the colonoscopy was normal. 14. Defendant, Gregory L. Lewis, M.D.,' recommended CBC and stool hemoccults be performed on Plaintiff, R berty Loy; if either test was positive, then BE with visualizatio of the right colon would be performed; if negative, then a survei lance colonoscopy in two years would be performed. 15. On March 22, 2000, Defendant, Gre cry L. Lewis, M.D., performed a third colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endosco y Center, Ltd. 16. Defendant, Gregory L. Lewis, M.D., found "a relatively good sized sessile nodular polyp in the proxi al transverse colon near the hepatic flexure" and noted that this "is probably the probable polyp I noted 2 years ago that I felt was in the descending colon, and because of looping of th scope, the position was difficult to ascertain at that time." 17. Several hot biopsies were taken but no attempt was made to remove the lesion. 18. Defendant, Gregory L. Lewis, M.D., f rther noted that the lesion was "hard to see and cannot be removed " 19. The biopsy material consisted of onl two tiny pieces of tissue and the biopsy revealed again that it wa a tubular adenoma. 20. Defendant, Gregory L. Lewis, M.D recommended that Plaintiff, Robert Loy, undergo a repeat colon scopy in one year. 4 21. On April 10, 2001, Defendant, Gregory L. Lewis, M.D., performed a fourth colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendant , Carlisle Digestive Disease Associates, Ltd. and Carlisle Endosc py Center, Ltd. 22. Defendant, Gregory L. Lewis, M. noted inadequate preparation of the colon and was uncertain th t he reached the end of the colon, known as the cecum. 23. Notwithstanding the poor preparatio of the colon and the lack of certainty about the completeness of the procedure, Defendant, Gregory L. Lewis, M.D., recomme ded that Plaintiff, Robert Loy, undergo a repeat colonoscopy in o e year. 24. On May 1, 2002, Defendant, Greg ry L. Lewis, M.D., performed a fifth colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants Carlisle Digestive Disease Associates, Ltd. and Carlisle Endosco y Center, Ltd. 25. Multiple polyps were seen including a 4 mm. polyp in the proximal transverse colon which was flat; a hot biopsy was performed but the resection was incomplete. 26. Biopsy results indicated that the tr nsverse colon polyp was adenomatous. 27. Defendant, Gregory L. Lewis, M.D , recommended that Plaintiff, Robert Loy, undergo a one-year fol ow-up colonoscopy. 28. On June 30, 2003, Defendant, Greg ry L. Lewis, M.D., performed a sixth colonoscopy on Plaintiff, Robert Loy, at the 5 medical clinic/endoscopy center of Defendant , Carlisle Digestive Disease Associates, Ltd. and Carlisle Endosc py Center, Ltd. 29. Three tiny polyps, 1 mm. in size, ere found. 30. The specimen reportedly showed benig hyperplastic tissue and colonic muscosa with no pathologic diagnosis and they recommended a repeat colonoscopy in 5 years. 31. In July of 2005, Plaintiff, Robert oy, was experiencing gastrointestinal bleeding and an EGD was p rformed by Theodore Berk, M.D., at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. a d Carlisle Endoscopy Center, Ltd. 32. No colonoscopy was performed becaus of the findings of the prior colonoscopies. 33. In December of 2005, Plaintif Robert Loy, was experiencing recurrent rectal bleeding and a seventh colonoscopy was performed by Dr. Berk at the medical clini /endoscopy center of Defendants, Carlisle Digestive Disease As ociates, Ltd. and Carlisle Endoscopy Center, Ltd. 34. This colonoscopy revealed a pa tially obstructing, malignant-appearing mass. 35. A biopsy indicated that this was ad nocarcinoma. 36. on December 29, 2005, Plaintiff, Rob rt Loy, underwent a R hemicolectomy and liver biopsy; obstructing olon cancer as well as liver and peritoneal metastases were found 6 37. The tumor was located in the prc 38. Plaintiff, Robert Loy, is unde other treatments but continues to have ac the prognosis is poor. Count I: Negligence ial transverse colon. ing chemotherapy and bed colon cancer and 39. The allegations set forth in par graphs 1 through 38 above are incorporated herein by reference a if fully set forth. 40. in providing medical treatment an care to Plaintiff, Robert Loy, and in analyzing and reading the results of the biopsies, the Defendant, Gregory L. Lewis, M .D., was required to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession i the same or similar circumstances. 41. Defendant, Gregory L. Lewis, M.D., 'n providing medical treatment and care to Plaintiff, Robert Loy, nd in analyzing and reading the results of the biopsies, fail d to exercise the reasonable and ordinary care, skill and abili y exercised by other members of his profession in the same or simi ar circumstances in that he: a) failed to diagnose and treat his co on cancer; b) failed to adequately evaluate the 1 rge colon lesion seen in 1997; C) improperly and wrongly relied on tiny superficial biopsy specimens to pro ide a full 7 histologic evaluation of the 1 d) failed to recognize that the large 1997 required complete removal complete histologic diagnosis and < e) failed to recognize that sessi: lesions are more likely to be or cancerous; f) failed to recognize that a large ] at that found in 1997 has a higher of being or becoming cancerous thar lesion; g) failed to explain the absence of lesion found in 1997 during colonoscopy; h) improperly and wrongly relied on C hemoccults to make a determinatic need for BE for evaluation of the in 1998; in 1997; lesion in to assure ure; .e modular to become esion such likelihood a smaller the large the 1998 : and stool as to the ight colon i) failed to adequately evaluate the colon lesion seen in 2000; j) improperly and wrongly relied on tiny superficial biopsy specimens to pro vide a full histologic evaluation of the lesio in 2000; k) failed to recognize that the lesi on in 2000 required complete removal to assur complete histologic diagnosis and cure; 1) improperly and wrongly relied on a olonoscopy in 2001 when the preparation of the colon was technically poor and the completen ess of the procedure could not be certain; M) failed to explain the absence of the large lesion found in 1997 during the col onoscopies of 2001, 2002 and 2003; n) improperly and wrongly relied on ho t biopsies with tiny tissue fragments as well as 8 incomplete removal to treat a pre colon lesion such as those found i 2000; o) failed to seek and obtain the instruction of qualified specialist superiors in the field of gastroe and p) failed to refer Plaintiff to specialists or their superiors in t] gastroenterology who would have und( appropriate treatment and care of Y 42. The negligence, carelessness anc Defendant, Gregory L. Lewis, M.D., was a s, causing the injuries and damages sustained Loy, described above in detail, which averme herein by reference. malignant 1997 and ,ice and or their erology; qualified field of taken the or recklessness of ial factor in Plaintiff, Robert s are incorporated 43. As a direct and proximate result of the negligent, careless and/or reckless medical treatment an care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, D., the Plaintiff experienced a progression of a pre-malignant 1 sion or early cancer to advanced colon cancer or advanced metastat c colon cancer. 44. As a further direct and proxi to result of the negligent, careless and/or reckless medical t eatment and care of Plaintiff, Robert Loy, by Defendant, Gregory . Lewis, M.D., the Plaintiff was caused a substantial delay in t e detection of his colon cancer and the subsequent treatment for it, which delay in turn caused the cancer to metastasize or sp ead significantly, increasing the risks and damages to Plaintiff nd thereby markedly 9 reducing his chances of cure, survival and 1'fe expectancy. 45. As a further direct and proxi ate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff did not undergo immediate treatment for his colon cancer at a time when it remained a highly treatable and curable form and degree of cancer. 46. As a further direct and proxi ate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has been obligated to receive an undergo additional medical attention and care and to incur addi ional expenses, and will be obligated to continue to receive an undergo additional medical attention and care and to incur such additional expenses for an indefinite time in the future. 47. As a further direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has suffered physical pain and suffering, mental anguish and humiliation and will continue to so suffer for an indefinite time in the future. 48. As a further direct and proximate result of the negligent, careless and/or reckless medical t eatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the 10 Plaintiff has suffered a loss of earnings and or impairment of his earning capacity and power and will continue to so suffer for an indefinite time in the future. 49. As a further direct and proxi ate result of the negligent, careless and/or reckless medical reatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has suffered a loss of life's pleasu es and will continue to so suffer for an indefinite time in the f ture. 50. The conduct of Defendant, Gregory L. Lewis, M.D., as alleged above, in providing medical trea ment and care for Plaintiff, Robert Loy, was outrageous and reck essly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, bas d on the foregoing averments, hereby demands judgment against D fendant, Gregory L. Lewis, M.D., and the award of compensatory an punitive damages in an amount in excess of the compulsory arbit ation limits, plus costs and interest as provided by law. Associates, Ltd. 51. The allegations set forth in pars raphs 1 through 50 above are incorporated herein by reference as if fully set forth. 52. At all relevant times herein, the ctual or ostensible agents, servants and/or employees of Defendant Carlisle Digestive 11 Disease Associates, Ltd., including but not imited to Defendant, Gregory L. Lewis, M.D., were acting within the scope of their employment and agency with Defendant, Carlisle Digestive Disease Associates, Ltd., in rendering negligent, car less and/or reckless medical treatment and care to Plaintiff, Ro ert Loy, as alleged above. 53. Defendant, Carlisle Digestive Dise se Associates, Ltd., is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible age ts, servants and/or employees, including but not limited to De endant, Gregory L. Lewis, M.D., who negligently, carelessly and/o recklessly rendered medical treatment and care to Plaintiff, Ro ert Loy, as alleged above. 54. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants a d/or employees of Defendant, Carlisle Digestive Disease Associa es, Ltd., including but not limited to Defendant, Gregory L. Le is, M.D., which is imputed to Defendant, Carlisle Digestive Disea e Associates, Ltd., was a substantial factor in causing the inju ies and damages to Plaintiff, Robert Loy, as alleged above. 55. As a direct and proximate result of the negligent, careless and/or reckless medical treatment an care of Plaintiff, Robert Loy, by its actual or ostensible agen s, servants and/or employees, including but not limited to De endant, Gregory L. 12 Lewis, M.D., which is imputed to Defendant Carlisle Digestive Disease Associates, Ltd., the Plaintiff as sustained those injuries and damages set forth in paragraphs 43 through 49 above, which averments are incorporated herein by r ference. 56. The conduct of Defendant, Gregor L. Lewis, M.D., as alleged above, in providing medical trea ment and care for Plaintiff, Robert Loy, which is imputed to Defendant, Carlisle Digestive Associates, Ltd., was outrage us and recklessly indifferent to the rights and interests of P1 intiff. WHEREFORE, Plaintiff, Robert Loy, bas d on the foregoing averments, hereby demands judgment against Defendant, Carlisle Digestive Disease Associates, Ltd., and the a and of compensatory and punitive damages in an amount in exces of the compulsory arbitration limits, plus costs and interest a provided by law. 57. The allegations set forth in para raphs 1 through 56 above are incorporated herein by reference as if fully set forth. 58. At all relevant times herein, the ctual or ostensible agents, servants and/or employees of Defendant Carlisle Endoscopy Center, Ltd., including but not limited to De endant, Gregory L. Lewis, M.D., were acting within the scope of their employment and agency with Defendant, Carlisle Endoscopy Center, Ltd., in rendering negligent, careless and/or reckless m dical treatment and 13 care to Plaintiff, Robert Loy, as alleged ab ve. 59. Defendant, Carlisle Endoscopy Center, Ltd., is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible ag nts, servants and/or employees, including but not limited to D fendant, Gregory L. Lewis, M.D., who negligently, carelessly and/o recklessly rendered medical treatment and care to Plaintiff, Ro ert Loy, as alleged above. 60. The negligence, carelessness and/o recklessness of the actual or ostensible agents, servants a d/or employees of Defendant, Carlisle Endoscopy Center, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D., which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., was a substantial factor in causing the injuries and damages o Plaintiff, Robert Loy, as alleged above. 61. As a direct and proximate resul of the negligent, careless and/or reckless medical treatment an care of Plaintiff, Robert Loy, by its actual or ostensible age ts, servants and/or employees, including but not limited to De endant, Gregory L. Lewis, M.D., which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., the Plaintiff has sustained those injuries and damages set forth in paragraphs 43 throug 49 above, which averments are incorporated herein by referenc . 62. The conduct of Defendant, Gregory L. Lewis, M.D., as 14 alleged above, in providing medical trea ment and care for Plaintiff, Robert Loy, which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., was outrageous and r cklessly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, bas d on the foregoing averments, hereby demands judgment against Defendant, Carlisle Endoscopy Center, Ltd., and the award of comp nsatory and punitive damages in an amount in excess of the co ulsory arbitration limits, plus costs and interest as provided b law. 63. The allegations set forth in para raphs 1 through 62 above are incorporated herein by reference as if fully set forth. 64. At all relevant times herein, Plain iff, Linda Loy, and Plaintiff, Robert Loy, were lawfully and cont nuously married. 65. As a direct and proximate result of the negligence, carelessness and/or recklessness of all the De endants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., jointly and severally, as described in more detail above, the Plainti f, Linda Loy, has suffered a loss of consortium, society and c mpanionship of her husband, Plaintiff, Robert Loy. WHEREFORE, Plaintiff, Linda Loy, demands judgment against all the Defendants, Gregory L. Lewis, M.D., Carlisl Digestive Disease 15 Associates, Ltd., and Carlisle Endoscopy Cent severally, in an amount in excess of the c( limits, plus costs and interest as provided RESPECTFULLY S' David J. Post I.D. No. 231E COSTOPOULOS, 831 Market St Lemoyne, Penr Phone: (717) ATTORNEY FOR DATED: May 31 , 2006. Ltd., jointly and pulsory arbitration law. MITTED: Esquire TER & FIELDS t/P.O. Box 222 vania 17043 1-2121 INTIFFS 16 VERIFICATION I, Robert Loy, do hereby verify that the statements made in the foregoing document are true and correc to the best of my information and belief. I understand that Ilse statements made herein are subject to the penalties at 18 Pa to unsworn falsification to authorities. Robert Loy DATED: May Yom, 2006. S.A. 4904 relating 17 VERIFICATION I, Linda Loy, do hereby verify that the s atements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. Linda Loy DATED: May 3Z) , 2006. 18 .` C'1 rV n 3 ? .?"Tt N 1 ?• T V? DO I Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs VS. ORIGINAL GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COUI CUMBERLAI DOCKET NO CIVIL ACTIO (MEDICAL M JURY TRIAL Attorney for Plaintiffs OF COMMON PLEAS COUNTY, PENNA. t4 ' 31 (7 - LAW CERTIFICATE OF MERIT I, David J. Foster, Esquire, certify that: [X] an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that t e care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in ringing about the harm; OR [ ] the claim that this defendant deviated from an standard is based solely on allegations that other I whom this defendant is responsible deviate professional standard and an appropriate licensed a written statement to he undersigned that there is the care, skill or knowledge exercised or exhibit professionals in the treatment, practice or work complaint, fell outside acceptable professional conduct was a cause in bringing about the harm; acceptable professional sensed professionals for I from an acceptable rofessional has supplied a basis to conclude that d by the other licensed hat is the subject of the iandards and that such OR V i [ ] expert testimony of an appropriate licensed pros prosecution of the claim against this defendant. Date: ?- 3 d6 David J. Fos`te I.D. No.: 2315 Costopoulos, 831 Market S1 Lemoyne, PA Phone: (717) -Attorney for is unnecessary for oster & Fields aet/P.O. Box 222 7043-0222 31-2121 iii C7 C" <? °" .? ? ?iti?.'. ? , ? '°.: ,n, rr)s , ,t??, i i,'... -moo ??, "~ C7 ?. ? ;, y :G ,-2. ? 41$ .. Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA '17043- Phone: (717) 761-2121 0222 ORIGINAL ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs VS. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE CUMBE DOCKET NO. CIVIL (MEDICAL M JURY TRIAL Attorney for Plaintiffs OF COMMON PLEAS COUNTY, PENNA. 06-311-7 C?clt?? LAW CERTIFICATE OF MERIT I, David J. Foster, Esquire, certify that: [ ] an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that toe care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in ringing about the harm; OR [X] the claim that this defendant deviated from an standard is based solely on allegations that other whom this defendant is responsible deviat( professional standard and an appropriate licensed a written statement to he undersigned that there i the care, skill or knowledge exercised or exhibi professionals in the treatment, practice or work complaint, fell outside acceptable professional conduct was a cause in bringing about the harm; acceptable professional censed professionals for i from an acceptable )rofessional has supplied a basis to conclude that ?d by the other licensed hat is the subject of the tandards and that such OR [ ] expert testimony of an appropriate licensed prof prosecution of the claim against this defendant. Date: 6( David J. Foste I.D. No.: 2315 Costopoulos, 831 Market Si Lemoyne, PA Phone: (717) -Attorney for is unnecessary for oster & Fields -et/P.O. Box 222 7043-0222 i1-2121 Y C> `y=a C ? ' "Y=-r1 1'... 1 N zj? Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market StreeVP.O. Box 222 s Lemoyne, PA 17043-0222 YJ Y\ Y v i 4 V! L, Phone: (717) 761-2121 Attorney for Plaintiffs ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs VS. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COU CUMBERLAI DOCKET NC CIVIL ACTIO (MEDICAL M JURY TRIAL OF COMMON PLEAS COUNTY, PENNA. 0(a 31 r -7_ - LAW I, David J. Foster, Esquire, certify that: [ ] an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that t e care, skill or knowledge exercised or exhibited by this defendant in the tr atment, practice or work that is the subject of the complaint, fell outsid acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [X] the claim that this defendant deviated from ar standard is based solely on allegations that other whom this defendant is responsible deviatf professional standard and an appropriate licensed a written statement to he undersigned that there i the care, skill or knowledge exercised or exhibi professionals in the treatment, practice or work complaint, fell outside acceptable professional conduct was a cause in bringing about the harm; acceptable professional icensed professionals for d from an acceptable professional has supplied a basis to conclude that ad by the other licensed that is the subject of the ;tandards and that such OR .01 [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: David J. Fos& I.D. No.: 2315 Costopoulos, 831 Market Si Lemoyne, PA Phone: (717) Attorney for oster & Fields get/P.O. Box 222 7043-0222 31-2121 laintiff ' C7 ` `" ` y S1 r c .-i v y?i J C r z _? It r FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopv Center Ltd ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-3117 GREGORY L. LEWIS, M.D., CIVIL ACTION - LAW CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., (MEDICAL MALPRACTICE) Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO: Prothonotary Kindly enter the appearance of Leigh A.J. Ellis, Esquire and Cindy N. Ellis, Esquire on behalf of Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. in the above-captioned action. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Dated: ( 24 w By: 04y?_? Lei A.J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 V CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon counsel of record this 20th day of June, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: L d Cheryl . G ofalo, gal S retary o--? r) (? T m ` ;n l 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) ROBERT LOY AND LINDA LOY, HIS WIFE (Plaintiffs) VS. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD. (Defendants) No. 06-3117 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections 2. Identify counsel who will argue cases: (a) for plaintiff: David J. Foster, Esquire, Costo oulos Foster & Fields (Name and Address). PO Box 222, Lemoyne PA 17043 (b) for defendant: Cindy N. Ellis, Esq., Foulkrod Ellis, Name and Address) 2010 Market St., Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 7Ii? oc.o Date: 6 lu I D4 Signature I C i n d y iii Ellis, Fa Print your name Gregory L. Lewis, M.D., Et Attorney for al. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon counsel of record this 20th day of June, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. 0. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS CORPORATION Cheryl L- T N _r FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endosconv Center, Ltd. ROBERT LOY AND LINDA LOY, IN THE COURT OF COMMON PLEAS HIS WIFE, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Robert Loy and Linda Loy, Plaintiffs c/o David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. 0. Box 222 Lemoyne, PA 17043 YOU ARE HEREBY NOTIFIED to plead to the attached NEW MATTER OF DEFENDANTS, GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., within twenty (20) days from service hereof, or a default judgment may be entered against you. FOULKROD ELLIS A PROFESSIONAL CORPORATION Date: -4t? By: .J. Ellis, Esquire 4ALei lk==?: Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 Counsel to Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Attorneys for Defendants: Gregory L. Lewis, M.D. and Carlisle Digestive Disease Associates, Ltd. and ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS, GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD. TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. ("Defendants"), by and through their counsel, Foulkrod Ellis Professional Corporation, and hereby file the instant Preliminary Objection to Plaintiffs' Complaint which was served upon Defendants on June 1, 2006. 1. Plaintiffs allege medical malpractice against Moving Defendants associated with their care and treatment rendered to Plaintiff husband, Robert Loy. 2. Defendant, Dr. Lewis, is the only health care provider alleged to have been negligent. 3. Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. are only alleged to have been vicariously liable for the acts of Dr. Lewis. MOTION TO STRIKE ALLEGATIONS OF RECKLESSNESS AND CLAIM FOR PUNITIVE DAMAGES 4. Pennsylvania Rule of Civil Procedure 1028(a)(2) provides that a defendant may move to strike off a Complaint for lack of conformity to law or rule of court. 5. Without pleading any underlying facts to support such claims, Plaintiffs' Complaint boldly asserts that the acts of Defendants were reckless and Plaintiffs' request that punitive damages be imposed as to all Defendants. A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A". 6. Pursuant to Pennsylvania law, "punitive damages may only be awarded for conduct that is the result of the health care provider's willful or wanton conduct or reckless indifference to the rights of others." 40 P.S. §1303.505(a). Further, "punitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agents that caused the injury unless it can be shown by preponderance of the evidence that the party knew of and allowed the conduct by its agents that resulted in the award of punitive damages." 40 P. S. § 1303.505(c). 8. Plaintiffs do not allege any facts that would suggest willful or wanton conduct or reckless indifference with regard to the conduct of Defendants. 9. At best, Plaintiffs' allegations in the Complaint amount to no more than ordinary negligence for an alleged failure to diagnose colon cancer.' ' Moving Defendants specifically deny that they committed any acts or omissions that constitute ordinary negligence. Rather, at all relevant times, they met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 10. Furthermore, there are no allegations in the Complaint relating to the vicarious liability that demonstrate that Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. knew of or allowed the conduct by its agents that should result in the award of punitive damages. 11. It is well settled that "punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake, and errors of judgment " Hall v. Jackson, 788 A.2d 389 (Pa. Super. 2001) (citing McDaniel v. Merck. Sharp and Dohme, 533 A.2d 436, 447 (Pa. Super. 1987)). 12. Furthermore, this Honorable Court has consistently dismissed punitive damage claims in medical malpractice actions for failure to plead material facts to support the proposition that a health care provider acted outrageously, with an evil motive, or with reckless or conscious indifference to a Plaintiffs wellbeing. Garrity v. Macaluso, No. 01-1300 Civil Term, (Ct. Com. PI., Cumberland County, July 31,2001); Dorsey v. Pinker, No. 98-3107 Civil Term, (Ct. Com. Pl., Cumberland County, August 4, 1999); Tonsend-Ensor v. Entwistle, No. 98-5606 Civil Term, (Ct. Com. Pl., Cumberland County, June 17, 1999); Gordon v. Taggart,-No. 97-6684 Civil Term, (Ct. Com. Pl., Cumberland County, July 2, 1998). 13. As Plaintiffs have not alleged any material facts that suggest outrageous, reckless, wanton, or willful conduct on behalf of Defendants, their claim for punitive damages should be dismissed. WHEREFORE, Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., respectfully request that this Honorable Court enter the attached Order and strike all claims of recklessness and claim for punitive damages from Plaintiffs' Complaint with prejudice. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Dated: By: ` Leigh .J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 C? i . ,1? ? L'? C? _ l?' 1 i ) ? .?, f. ; ?, N 4 , ' ti `.? C> ? _:, c,, ?'• ?? ?,?; ?)4- /? JUN-16-2006 THU 10:24 AM TDC ERO FAX NO, 804 673 8860 P. 02 y THE JUN 15 2V06 ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 6(.- 3?(? 2006 CIVIL ACTION - LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED NOTICF. TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. 1Riff-tbPy#;9,6h res!)trg?fy w"seeef,.Uwe. YM iMI,& tam r u:.i .A i is HwORD omso info Kano car", A. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Phone: (717) 249-3166 (800) 990-9108 JUN-15-2006 THU 10:24 AM TDC ERO ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE : ENDOSCOPY CENTER, LTD., Defendants FAX N0, 804 673 8860 P, 03 IN THE COURT OF COMMON PLEAS CUMBERLAND COMM, PENNSYLVANIA No. 2006 CIVIL ACTION - LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED PI,A,INTI)!FS' COMPLAI AND NOW come the Plaintiffs, Robert Loy and Linda Loy, his wife, by and through their attorney, David J. Foster, Esquire, COSTOPOULOS, FOSTER & FIELDS, and respectfully represent a s follows in support of this Complaint: 1. Plaintiffs, Robert Loy and Linda Loy, his wife, are adult individuals residing at R.D. 2, Box 61, Loysville, Perry County, Pennsylvania 17047, 2. Defendant, Gregory L. Lewis, M.D., is and at all times hereinafter referred to, was a physician duly licensed to practice his profession as provided by the laws of the Commonwealth of Pennsylvania and engaged in the practice of his profession at Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd., 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. Plaintiff, Robert Loy, is asserting a professional liability claim against this Defendant. 3. Defendant, Carlisle Digestive Disease Associates, Ltd., is 1 JUN-15-2006 THU 10,24 AM TDC ERO FAX NO. 804 673 8860 p. 04 and at all times hereinafter referred to, was a corporation duly authorized to do and doing business in the Commonwealth of Pennsylvania as a medical clinic with its primary place of business located at 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. Plaintiff, Robert Loy, is asserting a professional liability claim against this Defendant. 4. Defendant, Carlisle Endoscopy Center, Ltd, is and at all times hereinafter referred to, was a corporation duly authorized to do and doing business in the commonwealth of Pennsylvania as a medical clinic/endoscopy center with its primary place of business located at 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. Plaintiff, Robert Loy, is asserting a professional liability claim against this Defendant. 5. At all relevant times herein, Defendant, Gregory L. Lewis, M.D., was an actual or ostensible agent, servant and/or employee of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. Background Allegations S. At all relevant times herein, Plaintiff, Robert Loy, relied upon the professional judgment, ability and knowledge of Defendant, Gregory L. Lewis, M.D., who in turn was acting as an actual or ostensible agent, servant and/or employee of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 2 JUN-15-2006 THU 10;24 AM TDC ERO FAX N0. 804 673 8860 P, 05 7. Plaintiff, Robert Loy, has a family and personal medical history of colon polyps. 8. Because of this family and personal medical history, Plaintiff, Robert Loy, age 47 at the time, underwent a colonoscopy performed by Defendant, Gregory L. Lewis, M.D., at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd.,, on January 22, 1997. 9. In the course of the colonoscopy, Defendant, Gregory L. Lewis, M.D „ found a large nodular sessile polypoid mass in the hepatic flexure area of the colon of Plaintiff, Robert Loy; multiple hot biopsies were taken, however, no attempt was made to remove the mass in its entirety. 10, The biopsy specimen consisted of five tiny pieces of tissue and it was determined to be a tubular adenoma. 11. Defendant, Gregory L. Lewis, M.D., recommended to Plaintiff, Robert Loy, that he undergo a surveillance colonscopy the following year. 12. On January 30, 1998, Defendant, Gregory L. Lewis, M.D., performed a second colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 13. Although Defendant, Gregory L. Lewis, M.D., saw the large lesion in 1997, he was reportedly unable to locate it and indicated 3 JUN-15-2006 THU 10:25 All TDC ERO FAX NO. 804 673 8860 P, 06 that the colonoscopy was normal. 14. Defendant, Gregory L. Lewis, M.D., recommended CBC and stool hemoccults be performed on Plaintiff, Roberty Loy; if either test was positive, then BE with visualization of the right colon would be performed; if negative, then a surveillance colonoscopy in two years would be performed. 15. On March 22, 2000, Defendant, Gregory L. Lewis, M.D., performed a third colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 16. Defendant, Gregory L. Lewis, M.D., found "a relatively good sized sessile nodular polyp in the proximal transverse colon near the hepatic flexure" and noted that this "is probably the probable polyp I noted 2 years ago that I felt was in the descending colon, and because of looping of the scope, the position was difficult to ascertain at that time." 17. Several hot biopsies were taken but no attempt was made to remove the lesion. 18. Defendant, Gregory L. Lewis, M.D., further noted that the lesion was "hard to see and cannot be removed." 19. The biopsy material consisted of only two tiny pieces of tissue and the biopsy revealed again that it was a tubular adenoma. 20. Defendant, Gregory L. Lewis, M.D., recommended that Plaintiff, Robert Loy, undergo a repeat colonoscopy in one year. 4 JUN-15-2008 THU 10:25 AM TDC ERO FAX NO. 804 673 8860 P. 07 21. On April 10, 2001, Defendant, Gregory L. Lewis, M.D., performed a fourth colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 22. Defendant, Gregory L. Lewis, M.D., noted inadequate preparation of the colon and was uncertain that he reached the and of the colon, known as the cecum. 23. Notwithstanding the poor preparation of the colon and the lack of certainty about the completeness of the procedure, Defendant, Gregory L. Lewis, M,D., recommended that Plaintiff, Robert Loy, undergo a repeat colonoscopy in one year. 24, on May 1, 2002, Defendant, Gregory L. Lewis, M.D., performed a fifth colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 25. Multiple polyps were seen including a 4 mm. polyp in the proximal transverse colon which was flat; a hot biopsy was performed but the resection was incomplete. 26. Biopsy results indicated that the transverse colon polyp was adenomatous. 27. Defendant, Gregory L. Lewis, M.D., recommended that Plaintiff, Robert Loy, undergo a one-year follow-up colonoscopy. 28. On June 30, 2003, Defendant, Gregory L. Lewis, M.D., performed a sixth colonoscopy on Plaintiff, Robert Loy, at the 5 MN-15-2006 THU 10:25 AM TDC ERO FAX NO, 804 673 8860 P, 08 medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 29. Three tiny polyps, 1 mm. in size, were found. 30. The specimen reportedly showed benign hyperplastic tissue and colonic muscosa with no pathologic diagnosis and they recommended a repeat colonoscopy in 5 years. 31. In July of 2005, Plaintiff, Robert Loy, was experiencing gastrointestinal bleeding and an EGD was performed by Theodore Berk, M.D., at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 32. No colonoscopy was performed because of the findings of the prior colonoscopies. 33. In December of 2005, Plaintiff, Robert Loy, was experiencing recurrent rectal bleeding and a seventh colonoscopy was performed by Dr. Berk at the medical clinic/endoecopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 34. This colonoscopy revealed a partially obstructing, malignant-appearing mass. 35. A biopsy indicated that this was adenocarcinoma. 36. On December 29, 2005, Plaintiff, Robert Loy, underwent a R hemicolectomy and liver biopsy; obstructing colon cancer as well as liver and peritoneal metastases were found. 6 JUN-15-2006 THU 10:25 AM TDC ERO FAX NO, B04 673 8860 P. 09 37. The tumor was located in the proximal transverse colon. 38. Plaintiff, Robert Loy, is undergoing chemotherapy and other treatments but continues to have advanced colon cancer and the prognosis is poor. Count I: Negligence Plaintiff Robert Loy V. Defendant Gregory L Lewie M.D. 39. The allegations set forth in paragraphs 1 through 38 above are incorporated herein by reference as if fully set forth. 40. In providing medical treatment and care to Plaintiff, Robert Loy, and in analyzing and reading the results of the biopsies, the Defendant, Gregory L. Lewis, M.D., was required to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances. 41. Defendant, Gregory L. Lewis, M.D., in providing medical treatment and care to Plaintiff, Robert Loy, and in analyzing and reading the results of the biopsies, failed to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances in that he: a) failed to diagnose and treat his colon cancer; b) failed to adequately evaluate the large colon lesion seen in 1997; C) improperly and wrongly relied on tiny superficial biopsy specimens.to provide a full 7 J'UN-15-2006 THU 10:26 AN TDC ERO FAX NO, 804 673 8860 P, 10 histologic evaluation of the lesion in 1997; d) failed to recognize that the large lesion in 1997 required complete removal to assure complete histologic diagnosis and cure; e) failed to recognize that sessile modular lesions are more likely to be or to become cancerous; f) failed to recognize that a large lesion such at that found in 1997 has a higher likelihood of being or becoming cancerous than a smaller lesion; g) failed to explain the absence of the large lesion found in 1997 during the 1998 colonoecopy; h) improperly and wrongly relied on CBC and stool hemoccults to make a determination as to the need for BE for evaluation of the right colon in 1998; i) failed to adequately evaluate the colon lesion seen in 2000; j) improperly and wrongly relied on tiny superficial biopsy specimens to provide a full histologic evaluation of the lesion in 2000; k) failed to recognize that the lesion in 2000 required complete removal to assure complete histologic diagnosis and cure; 1) improperly and wrongly relied on a colonoecopy in 2001 when the preparation of the colon was technically poor and the completeness of the procedure could not be certain; m) failed to explain the absence of the large lesion found in 1997 during the colonoscopies of 2001, 2002 and 2003; n) improperly and wrongly relied on hot biopsies with tiny tissue fragments as well as e JUN-15-2006 THU 10:26 AM TDC ERO FAX NO, 804 673 8860 P. 11 incomplete removal to treat a pre-malignant colon lesion such as those found in 1997 and 2000; o) failed to seek and obtain the advice and instruction of qualified specialists or their superiors in the field of gastroenterology; and p) failed to refer Plaintiff to qualified specialists or their superiors in the field of gastroenterology who would have undertaken the appropriate treatment and care of him. 42. The negligence, carelessness and/or recklessness of Defendant, Gregory L. Lewis, M.D., was a substantial factor in causing the injuries and damages sustained by Plaintiff, Robert Loy, described above in detail, which averments are incorporated herein by reference. 43. As a direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff experienced a progression of a pre-malignant lesion or early cancer to advanced colon cancer or advanced metastatic colon cancer. 44. As a further direct and proximate result of the negligent, careless and/or rieekl 4 medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff was caused a substantial delay in the detection of his colon cancer and the subsequent treatment for it, which delay in turn caused the cancer to metastasize or spread significantly, increasing the risks and damages to Plaintiff and thereby markedly 9 JUN-16-2006 THU 10:26 AM TDC ERO FAX NO, 804 673 8860 P. 12 reducing his chances of cure, survival and life expectancy. 45. As a further direct and proximate result of the negligent, careless and/or reckleso medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff did not undergo immediate treatment for his colon cancer at a time when it remained a highly treatable and curable form and degree of cancer. 46, As a further direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has been obligated to receive and undergo additional medical attention and care and to incur additional expenses, and will be obligated to continue to receive and undergo additional medical attention and care and to incur such additional expenses for an indefinite time in the future. 47. As a further direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has suffered physical pain and suffering, mental anguish and humiliation and will continue to so suffer for an indefinite time in the future. 4e. As a further direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the 10 JUM-15-2006 THU 10:26 AM TDC ERO FAX NO, 804 673 8860 P. 13 Plaintiff has suffered a loss of earnings and/or impairment of his earning capacity and power and will continue to so suffer for an indefinite time in the future. 49. As a further direct and proximate result of the negligent, careless and/or reckless=medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has suffered a loss of life's pleasures and will continue to so suffer for an indefinite time in the future. 50.; The conduct of Defendant, Gregory L. Lewis, M.D., as alleged above, in providing medical treatment and care for Plaintiff, Robert Loy, was outrageous and recklessly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, based on the foregoing averments, hereby demands judgment against Defendant, Gregory L. Lewis, M.D., and the award of compensatory and punitive damages in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count IT--.--Vicarious Liability Plaintiff Robert Loy v Defendant Carlisle Digestive Disease Associates Ltd 51. The allegations set forth in paragraphs 1 through 50 above are incorporated herein by reference as if fully set forth. 52. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Digestive 11 JUN-16-2006 THU 10:27 AM TDC ERO FAX NO, 804 673 8860 p. 14 Disease Associates, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D., were acting within the scope of their employment and agency with Defendant, Carlisle Digestive Disease Associates, Ltd., in rendering negligent, careless and/or reckless medical treatment and care to Plaintiff, Robert Loy, as alleged above. 53. Defendant, Carlisle Digestive Disease Associates, Ltd., is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. Lewis, M.D., who negligently, carelessly and/or recklessly rendered medical treatment and care to Plaintiff, Robert Loy, as alleged above. 54. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Digestive Disease Associates, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D., which is imputed to Defendant, Carlisle Digestive Disease Associates, Ltd., was a substantial factor in causing the injuries and damages to Plaintiff, Robert Loy, as alleged above. 55. As a direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. 12 JUN-15-2006 THU 10t27 AM TDC ERO FAX NO. 804 673 8860 P. 15 Lewis, M.D., which is imputed to Defendant, Carlisle Digestive Disease Associates, Ltd., the Plaintiff has sustained those injuries and damages set forth in paragraphs 43 through 49 above, which averments are incorporated herein by reference. 56. The conduct of Defendant, Gregory L. Lewis, M.D., as alleged above, in providing medical treatment and care for Plaintiff, Robert Loy, which is imputed to Defendant, Carlisle Digestive Associates, Ltd., was outrageous and recklessly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, based on the foregoing averments, hereby demands judgment against Defendant, Carlisle Digestive Disease Associates, Ltd., and the award of compensatory and punitive damages in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count III: Vicarioup Liability Plaintiff Robert Loy v. Defendant Carlisle Endoscopy Center, Ltd. 57. The allegations set forth in paragraphs 1 through 56 above are incorporated herein by reference as if fully set forth. 58. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Endoscopy Center, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D., were acting within the scope of their employment and agency with Defendant, Carlisle Endoscopy Center, Ltd., in rendering negligent, careless and/or reckless medical treatment and 13 JUN-15-2006 THU 10;27 AM TDC ERO FAH NO. 804 673 8860 P. 16 care to Plaintiff, Robert Loy, as alleged above. 59. Defendant, Carlisle Endoscopy Center, Ltd., is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. Lewis, M.D., who negligently, carelessly and/or recklessly rendered medical treatment and care to Plaintiff, Robert Loy, as alleged above. 60. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Endoscopy Center, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D., which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., was a substantial factor in causing the injuries and damages to Plaintiff, Robert Loy, as alleged above. 61. As a direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. Lewis, M:D., which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., the Plaintiff has sustained those injuries and damages set forth in paragraphs 43 through 49 above, which averments are incorporated herein by reference. 62. The conduct of Defendant, Gregory L. Lewis, M.D., as 14 JUN-15-2006 THU 10:27 AM TDC ERO FAX NO. 804 673 8860 P, 17 alleged above, in providing medical treatment and care for Plaintiff, Robert Loy, which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., was outrageous and recklessly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, based on the foregoing averments, hereby demands judgment against Defendant, Carlisle Endoscopy Center,. Ltd., and the award of compensatory and punitive damages in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count IV: Loss of Consortium Plaintiff Linda Loy v. All Defendants 63. The allegations set forth in paragraphs 1 through 62 above are incorporated herein by reference as if fully set forth. 64. At all relevant times herein, Plaintiff, Linda Loy, and Plaintiff, Robert Loy, were lawfully and continuously married. 65. As a direct and proximate result of the negligence, carelessness and/or recklessness of all the Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., jointly and severally, as described in more detail above, the Plaintiff, Linda Loy, has suffered a loss of consortium, society and companionship of her husband, Plaintiff, Robert Loy. WHEREFORE, Plaintiff, Linda Loy, demands judgment against all the Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease 1s . ' JUN-15-2006 THU 10:28 AM TDC ERO FAH NO. 804 673 8860 P: 18 Associates, Ltd., and Carlisle Endoscopy Center, Ltd., jointly and severally, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. DATED: May ?/ , 2006. RESPECTFULLY SUBMITTED: r, David J. Fos er, Esquire I.D. No. 23151 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS 16 JUN-15-2006 THU 10;28 AM TDC ERO FAX NO, 804 673 8860 P. 19 VERIFICATIGIN I, Robert Loy, do hereby verify that the statements made in the foregoing document are true and correct to the beat of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. Id zo+f Robert Loy 67- DATED: May J-01 2006. 17 JI7N-15-2006 THU 10:28 AM TDC ERO FAX NO, 804 673 8860 P, 20 VERIFICATION I, Linda Loy, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. Linda Loy DATED: May _3b_, 2006. 18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon counsel of record this 20th day of June, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS By PROF '?IONAL CORPORATION ?, r c> ? a? TI -? -'41 1 . n) i ? _) r"i _, c;Tt _? .- lJ 4? ..C ROBERT LOY AND LINDA LOY HIS WIFE, PLAINTIFFS V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD, AND CARLISLE ENDOSCOPY CENTER, LTD, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-3117 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND HESS. J. ORDER OF COURT AND NOW, this fel day of July, 2006, the preliminary objections of defendants to plaintiffs' complaint, ARE DISMISS B Edgar B. Bayley, J. Xvid J. Foster, Esquire For Plaintiffs Cindy N. Ellis, Esquire For Defendants :sal ? lei?i ^ (? Ili 9 , ?94 . J Q) cf I L I 71C U t-1 FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopy Center, Ltd. ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED MOTION FOR RECONSIDERATION REGARDING DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. ("Defendants"), by and through their counsel, Foulkrod Ellis Professional Corporation, and hereby file the within Motion for Reconsideration regarding Preliminary Objections to Plaintiffs' Complaint. Reargument is not requested. 1. Preliminary Objections to Plaintiffs' Complaint were filed by Defendants on or about June 20, 2006. 2. The Preliminary Objections moved to strike Plaintiffs' claim for punitive damages as to Dr. Lewis and the corporate entity defendants. r s 3. Oral arguments were held regarding these Preliminary Objections on July 12, 2006, before the Honorable Edgar B. Bayley. 4. On July 17, 2006, an Order of Court was issued indicating that the Preliminary Objections of Defendants to Plaintiffs' Complaint, are dismissed. See Order of Court attached hereto as Exhibit "A". 5. Based on the inconsistencies in the Order to the oral arguments on this matter, undersigned believes and therefore avers that a clerical error may have occurred with respect to the disposition of the Preliminary Objections of Defendants to Plaintiffs' Complaint. 6. The Order indicates that Defendants' Preliminary Objections were argued before Bayley, J. and Hess, J. 7. However, the Preliminary Objections were, indeed, only held before the Honorable Edgar B. Bayley. 8. During oral argument, Plaintiffs raised issues regarding allegations not contained in the Complaint. Specifically, Plaintiffs argued that they will contend that Plaintiff had cancer for seven (7) years and that punitive damages were warranted because the Defendant-doctor did not diagnose the cancer. 9. Additionally, Plaintiff conceded that they had not alleged the requisite knowledge element on the part of the corporate entity defendants as required by the M-CARE Act to establish a punitive damage claim. Plaintiffs' counsel further indicated that they would request twenty (20) days to file an Amended Complaint to make the appropriate allegations. 10. As such, Defendants file the within Motion for Reconsideration simply to alert the Court to the inconsistency and confirm that it was indeed the Court's intent to dismiss all of Plaintiffs' Preliminary Objections. a WHEREFORE, it is respectfully requested that the Court reconsider its Order dated July 17, 2006 dismissing Defendants' Preliminary Objections to Plaintiffs' Complaint. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: By: Leigh A.J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of MOTION FOR RECONSIDERATION REGARDING DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT was served upon counsel of record this 21St day of July, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: Stacy L. Breon, Paralegal r-, s FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscoov Center Ltd ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Robert Loy and Linda Loy, Plaintiffs c/o David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 YOU ARE HEREBY NOTIFIED to plead to the attached NEW MATTER OF DEFENDANTS, GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., within twenty (20) days from service hereof, or a default judgment may be entered against you. FOULKROD ELLIS A PROFESSIONAL CORPORATION Date: l / d By: oLhi? igh A.J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 Counsel to Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopy Center Ltd ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS, GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD. TO PLAINTIFFS' COMPLAINT AND NOW come Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. (hereinafter "Answering Defendants"), by and through their counsel, Foulkrod Ellis Professional Corporation, and hereby respond to Plaintiffs' Complaint, and in support of the same, aver as follows: Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph, and the same are deemed denied and strict proof thereof demanded at the time of trial. 2. Admitted in part, denied in part. It is admitted that Gregory L. Lewis, M.D. was and is a physician duly licensed to practice his profession as provided by the laws of the Commonwealth of Pennsylvania and engaged/engages in the practice of his profession at Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. at 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. The remainder of the allegation is denied as a conclusion of law or fact to which no response is necessary. 3. Admitted in part and denied in part. It is admitted that Carlisle Digestive Disease Associates, Ltd. was and is a corporation duly authorized to do business in the Commonwealth of Pennsylvania with its primary place of business located at 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. The remainder of the allegation is denied as a conclusion of law or fact to which no response is required. 4. Admitted in part, denied in part. It is admitted that Carlisle Endoscopy Center, Ltd. is and was a corporation duly authorized to do business in the Commonwealth of Pennsylvania with its primary place of business located at 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. The remainder of the allegation is denied as a conclusion of law or fact to which no response is necessary. 5. Admitted in part, denied in part. It is admitted that Gregory L. Lewis, M.D. is a partner and employee of Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. The remainder of the allegation is denied as a conclusion of law or fact to which no response is required. 6. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegation that Plaintiff, Robert Loy, relied upon the professional judgment, ability, and knowledge of Defendant, Gregory L. Lewis, M.D. By way of further answer, Answering Defendants answer to paragraph No. 5 is incorporated herein by reference. 7-38. Denied generally pursuant to Pa. R.C.P. 1029(e). COUNT I: NEGLIGENCE PLAINTIFF, ROBERT LOY V. DEFENDANT, GREGORY L. LEWIS, M.D. 39. Answering Defendants hereby incorporate their responses to paragraphs 1-38 of this Answer as if fully set forth herein. 40. Denied. The averments contained in paragraph No. 40 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. 41(a-p). Denied. The averments contained in paragraph 41 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 42. Denied. The averments contained in paragraph 42 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 43. Denied. The averments contained in paragraph 43 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 44. Denied. The averments contained in paragraph 44 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 45. Denied. The averments contained in paragraph 45 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 46. Denied. The averments contained in paragraph 46 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 47. Denied. The averments contained in paragraph 47 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 48. Denied. The averments contained in paragraph 48 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 49. Denied. The averments contained in paragraph 49 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 50. Denied. The averments contained in paragraph 50 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. COUNT II: VICARIOUS LIABILITY PLAINTIFF, ROBERT LOY V. DEFENDANT, CARLISLE DIGESTIVE DISEASE, ASSOCIATES, LTD. 51. Answering Defendants hereby incorporate their responses to paragraphs 1-50 of this Answer as if fully set forth herein. 52. Denied. Answering Defendants hereby incorporate their response to paragraph 5. By way of further answer, as Plaintiffs fail to specifically identify any other agents, servants, and/or employees, Answering Defendants are unable to either admit or deny the allegations contained within this paragraph. To the extent an answer is required, the averments are denied and strict proof thereof demanded at trial. 53. Denied. The averments contained in paragraph 53 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally, and strict proof thereof is demanded at trial. 54. Denied. The averments contained in paragraph 54 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally, and strict proof thereof is demanded at trial. 55. Denied. The averments contained in paragraph 55 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally, and strict proof thereof is demanded at trial. 56. Denied. The averments contained in paragraph 56 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally, and strict proof thereof is demanded at trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. COUNT III: VICARIOUS LIABILITY PLAINTIFF, ROBERT LOY V. DEFENDANT, CARLISLE ENDOSCOPY CENTER, LTD. 57. Answering Defendants hereby incorporate their responses to paragraphs 1-56 of this Answer as if fully set forth herein. 58. Denied. Answering Defendants hereby incorporate their response to paragraph 5. By way of further answer, as Plaintiffs fail to specifically identify any other agents, servants, and/or employees, Answering Defendants are unable to either admit or deny the allegations contained within this paragraph. To the extent an answer is required, the averments are denied and strict proof thereof demanded at trial. 59. Denied. The averments contained in paragraph 59 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 60. Denied. The averments contained in paragraph 60 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 61. Denied. The averments contained in paragraph 61 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. 62. Denied. The averments contained in paragraph 62 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. COUNT IV: LOSS OF CONSORTIUM PLAINTIFF, LINDA LOY V. ALL DEFENDANTS 63. Answering Defendants hereby incorporate their responses to paragraphs 1-62 of this Answer as if fully set forth herein. 64. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph, and the same are deemed denied and strict proof thereof demanded at the time of trial. 65. Denied. The averments contained in paragraph 65 of Plaintiffs' Complaint are conclusions of law or fact to which no response is required. To the extent a response is deemed required, the allegations are denied generally and strict proof thereof is demanded at trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. NEW MATTER 66. Plaintiffs have failed to state a claim against Answering Defendants upon which relief may be granted. 67. The Plaintiffs' claims may be barred and/or limited by the applicable statute of limitations. 68. Answering Defendants are not liable to the Plaintiffs for the claims set forth in Plaintiffs' Complaint; the injuries and damages referred to therein are a result of a medical condition beyond the control of Answering Defendants or for which the Answering Defendants are not liable, or were caused by persons or entities beyond the control of Answering Defendants. 69. Plaintiffs' Complaint may be barred by or limited by the doctrine of release, res judicata, and/or collateral estoppel. 70. Plaintiffs' claims may be barred or limited by the Health Care Services Malpractice Act, as amended. 71. Plaintiffs' claims may be barred and/or limited by the Medical Care Availability and Reduction of Error Act of 2002. 72. Plaintiffs may not recover damages for past medical expenses and/or past last earnings incurred to the time of trial to the extent that the loss is covered by a private or public benefit or gratuity that has been received prior to trial. 73. Future damages for loss of earnings shall be reduced to present value. 74. The Answering Defendants aver that insofar as a treatment modality was elected which is recognized as proper, but may differ from another appropriate treatment modality, Answering Defendants raise the two schools of thought defense. 75. If there is a judicial determination of the application of Pa. R.C.P. 238 in the within action is constitutional, such possibility being specifically denied, the liability for any damages imposed under the said rule shall exclude the period of time that Plaintiff failed to convey a reasonable settlement demand, delayed in responding to any of Defendants' discovery requests, violated any discovery rules, or caused the delay of trial. 76. The Answering Defendants aver that if Plaintiff is awarded any money damages, such possibility being specifically denied, the amount of said damages must be reduced by the total amount of any and all medical expenses charged but not actually paid by or on behalf of the Plaintiff, i.e. any amount recovered by the Plaintiffs must be reduced by the sum of any and all medical expenses written off by a health care provider pursuant to the Pennsylvania Supreme Court ruling in Moorehead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2000). 77. Answering Defendants believe and therefore aver that evidence accumulated through discovery and provided at trial may establish that Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Answering Defendants hereby plead contributory and comparative negligence as affirmative defenses. 78. In the event that it is determined that Answering Defendants were negligent with regard to any of the allegations contained in, and with respect to Plaintiffs' Complaint, said allegations being specifically denied, said negligence was superceded by the intervening negligent acts of other persons, parties, and/or organizations other than Answering Defendants and over whom Answering Defendants had no control, right, or responsibility, and therefore, Answering Defendants are not liable. 79. Plaintiff assumed the risk of his injuries and this action is therefore barred by the doctrine of assumption of risk. 80. Plaintiffs are not entitled to an award of punitive damages, as their pleading has failed to comply with 40 P.S. Section 1303.505 of the M-CARE Act. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: By:? Leigh AJ. Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 V E R I F I C A T I O N I, GREGORY L. LEWIS, M.D., have read the foregoing ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT, which has been drafted by my counsel on my behalf. The information contained therein is based upon information I have provided to my counsel but the wording and phraseology is not mine. The information contained in the ANSWER AND NEW MATTER is true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn fabrication to authorities which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: g 6 0,? ? 40 GREGOR . LEWIS, M.D. V E R I F I C A T I O N I, GREGORY L. LEWIS, M.D., have read the foregoing ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT, which has been drafted by my counsel on my behalf. The information contained therein is based upon information I have provided to my counsel but the wording and phraseology is not mine. The information contained in the ANSWER AND NEW MATTER is true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. 94904, relating to unsworn fabrication to authorities which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date : 6 /,0; i? G G L. LEWIS, M.D. On behalf of Carlisle Digestive Disease Associates, Ltd. V E R I F I C A T I O N I, GREGORY L. LEWIS, M.D., have read the foregoing ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT, which has been drafted by my counsel on my behalf. The information contained therein is based upon information I have provided to my counsel but the wording and phraseology is not mine. The information contained in the ANSWER AND NEW MATTER is true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn fabrication to authorities which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: o 9 Z? e GR O . LEWIS, M.D. On behalf of Carlisle Endoscopy Center, Ltd. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of ANSWER AND NEW MATTER OF DEFENDANTS, GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD. TO PLAINTIFFS' COMPLAINT was served upon counsel of record this I Ith of August, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROF SSIONAL/CCOORPORATION By: L tacy L. reon, Paralegal r-a ? o C?. ° 'r7 T±! f.__ fyj ?] .F' ? ?Ca - Y' ro SUBPOENA NOTICE OF INTENT Page 1 of 3 PENNSYLVANIA COURT OF COMMON PLEAS COUNTY OF CUMBERLAND Robert Loy and Linda Loy Civil Court VS. Gregory Lewis, M.D., at al. 06-3117 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Provider: Masland Associates, Inc. TO: David J. Foster, Esquire note: please see enclosed list of all other Interested counsel Medical Record Type: Litigation Solutions, Inc. ('LSI') on behalf of Leigh Ellis, Esquire intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below In which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Date of Issue: 7/31/2006 Litigation Solutions, Inc. on behalf of: CC: Lelo Ellis, Esquire - Civil Court Leigh Ellis, Esquire Defense If you have any questions regarding this matter, please contact: Litigation Solutions, Inc. (412.263.5656) Brentwood Towne Centre 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 http://rats.litsol.com/mtsevents/notice_of intent.asp?save_report_to_db=X&PLid=PL1866... 7/31/2006 SUBPOENA NOTICE OF INTENT Page 2 of 3 • COUNSEL LISTING FOR ROBERT LOY AND LINDA LOY VS. GREGORY LEWIS, M.D., ET AL. County of Cumberland Civil Court Counsel Firm Counsel Type Foster, Esquire, David J. 831 Market Street Lemoyne PA 17043 Opposing Counsel http://rats.litsol.com/mtsevents/notice_of intent.asp?save_report_to_db=X&PLid=PL1866... 7/31/2006 SUBPOENA NOTICE OF INTENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy Civil Court Vs. Gregory Lewis, M.D., at al. 06-3117 Request For Records Copies Related To Subpoena Document Request Provider: Copy Sets Requested: Masland Associates, Inc. Page 3 of 3 Please return this completed form to Litigation Solutions, Inc. Please be advised that litigation Solutions, Inc. requires prepayment for all requested records above. Therefore, once the requested records are obtained an invoice for prepayment will be generated and sent directly to your attention. This prepayment Includes a $5.00 administrative fee. Once payment has been received the records will be promptly forwarded to your attention. If you should happen to have any questions or concerns regarding this matter, please don't hesitate to contact Erin Ramsey at 412.253.1128. Date of Issue: 7/31/2006 http://rats.litsol.com/mtsevents/notice_of intent.asp?save_report_to_db=X&PLid=PL1866... 7/31/2006 COMMONWEALTH OF PENNSYLVANIA Robert Loy and Linda Loy COUNTY OF CUMBERLAND VS. 06-3117 Gregory Lewis, M.D., et al. File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Masland Associates, Inc. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT TEE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADmps? ar a ree CaS3i TELEPHONE: /1/-9UJ-IUUb SUPREME COURT ID # ATTORNEYFOp,. Defense BY THE COURT: a G Prothonotary, Civil Divis' 7/?izoo6? Date: ?n Seal of the Court DDpi SUBPOENA RIDER . Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Masland Associates, Inc. 220 Wilson Street Carlisle PA 17013 Attention: Medical Records Correspondence Subject: Loy, Robert SS*: 181-42-8238 Date of Birth: 2/12/1949 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records from 2/12/1949 to present, including records, charts, test results, reports, correspondence, office notes, and computerized records. http://rats.litsol.comlmtsevents/subpoena-rider.asp?PLid=PL186602&WRid=WR28999 7/31/2006 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 was served upon counsel of record this 11 m of August, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. 0. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROF SSIONAL CORPORATION By: tacy L. Breon, Paralegal l7 ° O - -r te rn ri l: m A t °Y - ni 'OF Zn 96 1 N' <5m w rn -< Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiffs ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs VS. GREGORY L. LEWIS, M.D., . CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 06-3117 Civil CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANTS AND NOW come the Plaintiffs, Robert and Linda Loy, by and through their attorney, David J. Foster, Esquire, Costopoulos, Foster & Fields, and aver as follows: 66. Denied. 67. Denied. 68. Denied. 69. Denied. 70. Denied. 71. Denied. 72. Denied as a conclusion of law. 73. Denied as a conclusion of law. 74. Denied. 75. Denied as a conclusion of law. 76. Denied as a conclusion of law. 77. Denied. 78. Denied. 79. Denied. 80. Denied as a conclusion of law. WHEREFORE, Plaintiffs request that judgment be entered in their favor. Respectfully submitted, David J. Fo , Esquire I.D. No.: 23151 COSTOPOULOS, FOSTER & FIELDS 831 Market Street, P.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 Counsel for Plaintiffs Date: August 1 2006 VERIFICATION Robert Loy and Linda Loy vs. Gregory L. Lewis, M.D., et al. I, Robert Loy, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Robert Loy Dated: 3 -/?g <0 ? VERIFICATION Robert Loy and Linda Loy vs. Gregory L. Lewis, M.D., et al. 1, Linda Loy, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. understand that any false statements therein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. da'- . - X tt3 Linda Loy Dated: P-i c, - 0 CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this day of August 2006, a true and correct copy of the foregoing PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANTS was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Leigh A.J. Ellis, Esquire FOULKROD ELLIS 2010 Market Street Camp Hill, PA 17011 Attorney for Defendants Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. By: COSTOPOULOS, FOSTER & FIELDS ?r Tiffany M. iller C? ? 77 t:< < .- M C? m Y C._ N cn C) -G SVJj POENA RECORDS COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy VS. Gregory Lewis, M.D., et at. Civil Court Case Number: 06-3117 CERTIFICATE PREREQUISITE TO THE SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 Page 3 of 4 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Litigation Solutions, Inc. ('LSI') on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC certifies that: (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received, and; (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 8/21/2006 CC• 2010 Market Street Camp Hill PA 17011 Litigation Solutions, Inc. on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC Attorney for the httn•/lratc litcnl cnm/chnw diarv re.nnrt.acn?KevVal=205352 8/21/2006 SUBPOENA NOTICE OF INTENT Page I of 3 PENNSYLVANIA COURT OF COMMON PLEAS COUNTY OF CUMBERLAND Robert Loy and Unda Loy Civil Court VS. Gregory Lewis, M.D., at al. 06-3117 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Provider: Record Type: Masland Associates, Inc. Medical TO: David 1. Foster, Esquire note: please see enclosed list of all other Interested counsel Litigation Solutions, Inc. ('LSI') on behalf of Leigh Ellis, Esquire Intends to serve a subpoena Identical to the one that Is attached to this notice. You have twenty (20) days from the date listed below In which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection Is made, then the subpoena may be served. Date of Issue: 7/31/2006 Litigation Solutions, Inc. on behalf of: CC: Leigh Ellis, Esquire - Civil Court Leigh Ellis, Esquire Defense If you have any questions regarding this matter, please contact; Litigation Solutions, Inc. (412.263.5656) Brentwood Towne Centre 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 http://rats.litsol.comlratsevents/notice_of intent.asp?save_report to_db=X&PLid=PLI866... 7/31/2006 SUBPOENA NOTICE OF INTENT Page 2 of 3 COUNSEL LISTING FOR ROBERT LOY AND LINDA LOY VS. GREGORY LEWIS, M.D., ET AL. County of Cumberland Civil Court Counsel Firm Counsel Type Foster, Esquire, David J. 831 Market Street Lemoyne PA 17043 Opposing Counsel http://rats.litsol.com/ratsevents/notice_of intent.asp?save reportto_db=X&PLid=PLIS66... 7/31/2006 COMMONWEALTH OF PENNSYLVANIA Robert Loy and Linda Loy COUM OF CUMBERLAND VS. 06-3117 Gregory Lewis, M.D., et al. File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 T0Masland Associates, Inc. : (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRE R: a r e Camp i , t?Oti TELEPHONE: 711-909-100b SUPREME COURT ID # ATTORNEYFOR De tense BY THE COURT: _Liet a G Prothonotary, Civil Divisiffi 7/2/2006 Date: Seal of the Court Depiffy ? STOPOENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Masland Associates, Inc. 220 Wilson Street Carlisle PA 17013 Attention: Medical Records Correspondence Subject: Loy, Robert SS#:181-42-8238 Date of Birth: 2/12/1949 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records from 2/12/1949 to present, Including records, charts, test results, reports, correspondence, office notes, and computerized records. http://rats.litsol.com/ratseventslsubpoena rider.asp?PLid=PLI86602&WRid=WR28999 7/31/2006 P ? f AUG 2 4 2006 tis ?P CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of CERTIFICATE PREREQUISITE TO THE SERVICE OF A SUBPOENA was served upon counsel of record this 25th day of August, 2006, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: 4 'o; tacy L. Breon, Paralegal N ?J -TI 7.1 j v N "7 m .s F CASE NO: 2006-03117 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LOY ROBERT ET AL VS LEWIS GREGORY L MD ET AL SHARON LANTZ Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon LEWIS GREGORY L MD the DEFENDANT , at 1423:00 HOURS, on the 2nd day of June , 2006 at 241 ALEXANDER SPRING ROAD CARLISLE, PA 17013 DEIDRA NEHF, OFFICE MANAGER by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 4.40 Postage .39 Surcharge 10.00 R. Thomas Kline 32.79,/ 06/05/2006 COSTOPOULOS FOSTER FIELDS Sworn and Subscibed to By: before me this day Deputy Sher ff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-03117 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LOY ROBERT ET AL VS LEWIS GREGORY L MD ET AL SHARON LANTZ , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon rTDT_TCT.V nTf1_WQ1rT1TW nTQRA.gF. A.4.4nC'TATFS T,Tn the DEFENDANT , at 1423:00 HOURS, on the 2nd day of June 2006 at 241 ALEXANDER SPRING ROAD CARLISLE, PA 17013 by handing to DEIDRA NEHF, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: / Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00/ 06/05/2006 n COSTOPOULOS F STER FIELDS Sworn and Subscibed to By: If 14 before me this day Deputy Sheriff of A.D. 6 SHERIFF'S RETURN - REGULAR CASE NO: 2006-03117 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LOY ROBERT ET AL VS LEWIS GREGORY L MD ET AL SHARON LANTZ , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARLISLE ENDOSCOPY CENTER LTD the DEFENDANT , at 1423:00 HOURS, on the 2nd day of June 2006 at 241 ALEXANDER SPRING ROAD CARLISLE, PA 17013 by handing to DEIDRA NEHF, OFFICE MANAGER ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 4- Sworn and Subscibed to before me this of So Answers: 6.00 .00 .00 10.00 R. Thomas Kline .00 16.00,/ 06/05/2006 COSTOPOULOS FOSTER FIELDS By. day eputy Sh r'ff A.D. FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants Attorneys for Defendants: Gregory L. Lewis, M.D. and Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., intend to serve Subpoenas identical to the ones that are attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Supoenas. If no objections are made, the Subpoenas may be served. FOULKROD ELLIS PROFESSIONAL CORPORATION By: L- ?J /---- - Leigh A.. E lis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 Date: / - 3 D ? A. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, Plaintiffs 06-3117 V . File No. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd.,: and Carlisle Endoscopy Center, Ltd.; Defendants ' SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center Emergency Room (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all records in time period 12/05 relating to Plaintiff, Robert D. Loy, DOB: 212/49, SSN: 181-42-8238, including, but not limited to, emergency room char entries, a ep one messages, correspondence, memorandums, laboratory reports, discharge summaries, consultations, and prescriptions. at Foulkrod Ellis, 2010 Market St., Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the parry serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS:2UIU a r e . Camp Hill, PA TELEPHONE: 1 - - SUPREME COURT m # 6 3 8 2 3 ATTORNEY FOR: Defendants Date: i ? Seal of the Co BY THE URT: P. thono Divi n Deputy of 46 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, Plaintiffs File No. 06-3117 v. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd.,: and Carlisle Endoscopy Center, Ltd,: Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all admission and outpatient recordsfil from 2005 to 2007 relating to Plaintiff, Robert D Loy, DOB: 2/12/49, SSN: 181-42-8238, including, but not limited to, chart entries, telephone messages, correspondence, memorandums, laboratory reports, discharge summaries, consultations, and prescriptions. at Foulkrod Ellis, 2010 Market St, Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS: 2010 Market treet Camp Hill, PA 17011 TELEPHONE: 717-909-7006 SUPREME COURT M # ATTORNEY FOR: Defendants Data: Seal of the 21-2z?oto BY THE T: P ouoti- C' si Deputy COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, Plaintiffs 06-3117 v File No. Gregory L. Lewis, M.D., Carlisle • Digestive Disease Associates, Ltd.; and Carlisle Endoscopy Center, Ltd: Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Walnut Bottom Radiology (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all records from 2004 to 2007 relating to Plaintiff, Robert D. Loy, DOB: 2/12/49, SSN: 181-42-8238, including, but not limited to, radiology reports, wet readings, telephone messages, correspondence, memorandums, consultations, and referrals. at Foulkrod Ellis, 2010 Market St., Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS: z all u Ma r K e t St. Camp Hill, PA TELEPHONE: 717-909-7006 SUPREME COURT ID # 8 3 8 2 3 ATTORNEY FOR _ Defendants Date: C . Seal of the Codrt BY THE URT: thonotary, Ci ivisi Deputy COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, . Plaintiffs 06-3117 v , File No. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd.,: Defendants • SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Pinnacle Health Emergency Room (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all records from 2006-2007 relating to Plaintiff, Robert D. Loy, DOB: 2/12/49, SSN: 181-42-8238, including, but not limited to, emergency room chart entries, telephone messages, correspondence, memorandums, laboratory reports, discharge summaries, consultations, and prescriptions. at Foulkrod Ellis, 2010 Market St-j. Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME; Cindy N._ Ellis, Esauire ADDRESS: 201 n Market St Camp Hill. PA 17011 TELEPHONE: 717-909-7006- SUPREME COURT ID # 8 3 8 2 3 ATTORNEY FOR Defendants Date. ' Seal of the Curt BY THE URT: lfrothonolajyy?visidn Deputy CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of NOTICE OF INTENT TO SERVE SUBPOENAS was served upon counsel of record this 3`d day of January, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: tacy L. 43reon'- Paralegal Q o n, m c n r, i? . -s U i - PO ;"? rn C3 FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants Attorneys for Defendants: Gregory L. Lewis, M.D. and Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., intend to serve a Subpoena identical to the one that is attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Subpoena. If no objections are made, the Subpoena may be served. FOULKROD ELLIS PROFESSIONAL CORPORATION By: Leigh .J. MIS, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire f Attorney I.D. No. 83823 Date: ? ? ^ U ? ... COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Addda?,Loy, Plaintiffs V. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., ; and Carlisle Endoscopy Center, Ltd.,: Defendants File No. 06-3117 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Color photocopies of any photographs taken during 1997 colonoscopy of Plaintiff, Robert D. Loy, DOB: 2/12/49; SSN: 181-42-8238. at Foulkrod Ellis, 2010 Market St., Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS: 2010 Market r e e Camp Hill, PA 17011 TELEPHONE: 909- 7006 SUPREME COURT ID # 8 3 8 2 3 ATTORNEY FOR: Defendants Date: 'Seal of the Co BY THE COURT. Pro onotary, sio Deputy _.• CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of NOTICE OF INTENT TO SERVE SUBPOENA was served upon counsel of record this 8th day of January, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: Stacy L. Breon, Paralegal n r-? ?_.. k'. ? ? ? j t ? , ? ? ... . ?+? ? ?y ,al ? } y ? Y?. (? ? om 7 ?, Y . =y;y ?.` (?.? ?.J 1 ? - N FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopy Center, Ltd. ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendants certify that: (1) a notice of intent to serve the subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each parry at least 20 days prior to the date on which the subpoenas are sought to be served, (2) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate, (3) no objection to the subpoenas have been received, and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent to serve the subpoenas. Respectfully submitted, Date: By: Leigh .J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopy Center, Ltd. ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., intend to serve a Subpoena identical to the one that is attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Subpoena. If no objections are made, the Subpoena may be served. FOULKROD ELLIS PROFESSIONAL CORPORATION By: Leigh J. E is, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Date: 0 --7 Attorney I.D. No. 83823 ?- ? COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and"Lirida!',Loy, Plaintiffs : File No. 06-3117 V. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd.,: Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Color photocopies of any photographs taken during 1997 colonoscopy of Plaintiff, Robert D. Loy, DOB: 2/12/49; SSN: 181-42-8238. at Foulkrod Ellis, 2010 Market St., Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS: _ a r a 97r e e Camp Hill, PA 17011 TELEPHONE: 9UJ- /UUb SUPREME COURT ID # 8 3 8 2 3 ATTORNEY FOR: D e f en d a n t s Date: Seal of the CoArt BY THE C0j4tT: Prothonotary, C' io? J Deputy CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of NOTICE OF INTENT TO SERVE SUBPOENA was served upon counsel of record this 8th day of January, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. 0. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: >-1 61// A Stacy L. Breon, Paralegal FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopy Center, Ltd. ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., intend to serve Subpoenas identical to the ones that are attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Supoenas. If no objections are made, the Subpoenas may be served. FOULKROD ELLIS PROFESSIONAL CORPORATION By: 0?? ?] Leigh A.. E lis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 Date: % -x_07 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, Plaintiffs 06-3117 Pile No. V. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd.,: and Carlisle Endoscopy Center, Ltd.; Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4049.22 TO: Carlisle Regional Medical Center Emergency Room (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all records in time period of 12/05 relating to Plaintiff, Robert D. Loy, DOB: 2112/49, SSN: 181-42-8238, including, but not limited to, emergency room char entries, a ep one messages, correspondence, memorandums.. laboratory reports, discharge summaries, consultations, and prescriptions. at Foulkrod Ellis, 2010 Market St., Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWIIvG PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS:ZUIU Market Camp Hill, PA 17011 TELEPHONE: 1 - - SUPRas COURT m # 8 3 9 2 3 ATTORNEY FOR: Defendants Date: j -Seal of the Cohrt BY THE URT: PF hono Di J?n Deputy COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, Plaintiffs File No. 06-3117 V. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd,- Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THIN GS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all admission and outpatient records,.1 from 2005 to 2007 relating to Plaintiff, Robert D. Loy, DOB: 2/12/49, SSN: 181-42-8238, including, but not limited to, chart entries, telephone messages, correspondence, memorandums, laboratory reports, discharge summaries, consultations, and prescriptions. at Foulkrod Ellis, 2010 Market St, Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS: 2010 Market -Street Camp Hill, PA 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID # ATTORNEY FOR: D e f e n d a n t s Date: 1 Seal of the Col= BY TBE C T: onotary, C' L Divis f ' Deputy COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, Plaintiffs 06-3117 V. Filt No. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd.i and Carlisle Endoscopy Center, Ltd: Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Walnut Bottom Radiology (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all records from 2004 to 2007 relating to Plaintiff, Robert D. Loy, DOB: 2/12/49, SSN• 181-42-8238, including, but not limited to, radiology reports, wet readings, telephone messages, correspondence, memorandums, consultations, and referrals. at Foulkrod Ellis, 2010 Market St., Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esquire ADDRESS: ZQ1U Market . Camp Hill, PA 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID # 8 3 8 2 3 ATTORNEY FOR De f en d a n b s Date: C . '?bp .2 / 'Seal of the Codrr BY THE URT: Prdt-honotary, Deputy COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Robert Loy and Linda Loy, Plaintiffs 06-3117 V. File No. Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. Defendants SUBPOENA TO PRODUCE DOCUMEENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Pinnacle Health Emergency Room (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A copy of any and all records from 2006-2007 relating to Plaintiff, Robert D. Loy, DOB: 2/12/49, SSN: 181-42-8238, including, but not limited to, emergency room chart entries, telephone messages, correspondence, memorandums, laboratory reports, discharge summaries, consultations, and prescriptions. at Foulkrod Ellis, 2010 Market St;:. Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Cindy N. Ellis, Esctuire ADDRESS: - n l, mg r k e t S t. Camp Hill. PA 17011 TELEPHONE: 717-909-7006 SUPREME COURT M# 8 3 8 2 3 ATTORNEY FOR De f e n d a n t s Date .2,nn6 'Sea] of the urt BY THE URT: thonota 'vis' n Deputy CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of NOTICE OF INTENT TO SERVE SUBPOENAS was served upon counsel of record this 3`d day of January, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. BOX 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: 'k4 '?4? tacy L. reon, Paralegal CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS was served upon counsel of record this 29th day of January, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. BOX 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION ze? By: Stacy L. reon, Paralegal C"? ` ' ??- :? -,? r ';- s;? ' v ;?, R;? y ?- ORIGINAL PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: x1 for JURY trial at the next term of civil court. ? for trial without a jury. ------------------------------------------------------------------------------------------------------------------ CAPTION OF CASE (entire caption must be stated in full) (check one) 0 Civil Action - Law ROBERT LOY AND LINDA LOY, HIS WIFE ?Appealfromarbitration (other) (Plaintiff) VS. The trial list will be called on8 / 11 /07 and GREGORY LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD, AND CARLISLE ENDOSCOPY CENTER, LOCkfendant) VS. Trials commence on 9/ 17 / 0 7 Pretrials will be held on 8 / 2 9 / 0 7 (Briefs are due 5 days before pretrials No. 3117 06 Term Indicate the attorney who will try case for the party who files this praecipe: David J. Foster, Esquire Leslie M Fields, Esquire, 831 Market Street, Lemoyne, PA -' 17043 Indicate trial counsel for other parties if known: Leigh A.J. Ellis, Esquire, 2010 Market Street, Camp Hill ('?, , - r-z-7P A 17 011 This case is ready for trial. Signed: Date: I I 7-o I (1 -7 Print Name: David J. Foster, Esq. Attorney for: P l a i n t i f f Ul PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: 0 for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in fulo ROBERT LOY AND LINDA LOY, HIS WIFE (check one) R Civil Action - Law ? Appeal from arbitration (other) (Plaintiff) VS. GREGORY LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, (Defendant) vs. The trial list will be called on 10 / 16 / 0 7 and Trials commence on 11 / 13 / 0 7 LTD. Pretrials will be held on 10 / 2 4 / 0 7 (Briefs are due S days before pretrials No. 3117 0 6 Term Indicate the attorney who will try case for the party who files this praecipe: David J. Foster, Esquire Leslie M Fields, Esquire, 831 Market St., Lemoyne, PA 17043 Indicate trial counsel for other parties if known: Leigh A J Ellis, Esquire, 2010 Market St., Camp Hill, PA 17011 This case is ready for trial. Signed: Print Name: David Foster _ Date: ? - 2 1 - a 001 Attorney for: Plaintiffs 4. ??\\ ?L/ h Z ,may} V ROBERT LOY and LINDA LOY, his wife, Plaintiffs v GREGORY LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, L.T.D.: and CARLISLE ENDOSCOPY CENTER, L.T.D., Defendants #19 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 06-3117 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 21st day of August, 2007, the above-captioned case having not been called for trial at the call of the civil trial list, and counsel for the Plaintiffs and Defendants having agreed that it should be stricken from the trial list, the case is stricken from the trial list. By the Court, vid J. Foster, Esquire 831 Market Street P.O. Box 222 Lemoyne, PA 17043-1518 For Plaintiff X ( eigh A.J. Ellis, Esquire 2010 Market Street Camp Hill, PA 17011-4703 For Defendant Court Administrator a :mae Ano 9 ? .1 f WV V 9#1V t001 Jtt 4'l i' o i ? 'Ni LuOci dC? s It FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopv Center Ltd ROBERT LOY AND LINDA LOY, IN THE COURT OF COMMON PLEAS HIS WIFE, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS, GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD. REGARDING PUNITIVE DAMAGES AND NOW, come Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. ("Defendants"), by and through their counsel, Foulkrod Ellis Professional Corporation, to file the within Motion for Partial Summary Judgment regarding punitive damages. Procedural History 1. The within medical malpractice action was initiated by a Complaint that was filed on May 31, 2006. 2. The basis of the Complaint is Dr. Lewis' alleged failure to diagnose colon cancer suffered by Plaintiff, Robert Loy (hereinafter, "Plaintiff'). A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit A. 3. Plaintiffs' ad damnum clauses pray for an award of punitive damages to be assessed against both Dr. Lewis, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 4. Further the Complaint repeatedly asserts that the conduct of defendants was reckless. See Paragraphs 42-50, 52-56, 58-62 and 65. 5. On June 22, 2006, Defendants filed Preliminary Objections to Plaintiffs' punitive damages claim. Defendants argued that Plaintiffs' Complaint failed to plead requisite factual allegations that could support a punitive damages claim. A true and correct copy of the Preliminary Objections is attached hereto as Exhibit B and hereby incorporated herein by reference. 6. Specifically, Defendants asserted that the negligent acts alleged against Dr. Lewis by Plaintiffs did not demonstrate "willful or wanton conduct or reckless indifference to the rights of others" as required by the MCARE Act. 40 P.S. §1303.505(a). 7. Additionally, Defendants pointed out that Plaintiffs did not allege the requisite knowledge requirement to maintain a punitive damages claim against the Corporate Defendants. See 40 P.S. §1303.505(c). Oral arguments were held regarding the aforesaid Preliminary Objections on July 17, 2006. To the best of undersigned's recollection, during those arguments, Plaintiffs' counsel asserted that they will contend that Plaintiff had cancer for seven (7) years; Dr. Lewis knew the 2 cancer existed for seven (7) years; and Dr. Lewis delayed diagnosis of cancer for seven (7) years. These assertions were not specifically alleged in the Complaint. 9. Additionally during oral arguments, to the best of undersigned's recollection, Plaintiffs' counsel conceded that he had not alleged the requisite knowledge element on the part of the Corporate Defendants, but indicated that, if permitted, he would file an Amended Complaint to make the appropriate allegations. 10. On July 17, 2007, the Honorable Edgar B. Bayley issued an Order dismissing the Preliminary Objections. No opinion accompanied the Order. A true and correct copy of the Order is attached hereto as Exhibit C. 11. On August 12, 2007, Defendants filed an Answer with New Matter to Plaintiffs' original Complaint as no Amended Complaint was filed or required by Plaintiffs given the Court's ruling. 12. Discovery is complete and the case is listed to begin trial on November 13, 2007. 13. Plaintiffs' punitive damages claims should be dismissed for two reasons: a. Plaintiffs' Complaint still does not contain the requisite factual allegations to support a claim of punitive damages. b. Even if Plaintiffs' Complaint is legally sufficient, discovery has failed to reveal any facts that demonstrate that Dr. Lewis acted with willful or wanton conduct or reckless indifference to the rights of Plaintiff that would merit an award of punitive damages. 3 Summary of Relevant Facts' 14. Plaintiff initially came under the care of Dr. Lewis on January 8, 1997, at the age of 472, for a screening colonoscopy upon referral from his family physician. See pages 13-14 of deposition of Dr. Lewis attached hereto as Exhibit D. 15. At the time of the initial visit, Plaintiff was not exhibiting any gastrointestinal related symptoms. See page 14 of Exhibit D. 16. During the colonoscopy, Dr. Lewis identified a suspicious area of Plaintiff's colon and took multiple biopsies of the area. See page 30 of Exhibit D. 17. The pathology of these biopsies revealed a diagnosis of tubular adenoma. See Surgical Pathology Report of Henry S. Crist, M.D. attached hereto as Exhibit E. A tubular adenoma is a slow growing benign adenoma. See 14 of Expert Report of James W. Srour, M.D. attached hereto as Exhibit F. 18. Dr. Lewis testified that it is wise to remove polyps found during colonoscopies and is the goal of the physician. See page 38 of Exhibit D. 19. However, it was not possible for Dr. Lewis to remove the polyp observed during the 1997 colonoscopy for several reasons. Dr Lewis explained his reasoning as follows: With the amount of stool that was there, I could not totally visualize it to put a loop around it to remove it and use cautery. If you can't see exactly the landmarks of where you are looping to apply cautery, you can't do it. In addition, the configuration of his colon was somewhat unusual in that there was a lot of looping and up and down of his colon that was not a straight colon. So it would ' The basis of the within Motion is that the record is devoid of any evidence that demonstrates that Dr. Lewis acted with willful or wanton conduct or reckless indifference. The within Summary of Relevant Facts includes testimony of Dr. Lewis for purposes of demonstrating that the overwhelming evidence at trial will show that Dr. Lewis acted with exceeding concern and care. It is not undersigned's intent that the testimony alone be viewed as sufficient to establish the absence of a genuine issue of material fact in contradiction to NM-Glo v. American Surety Co., 163 A. 523 (Pa. 1932). 2 The typical age for a screening colonoscopy is 50. However, Plaintiff's father had a history of colon polyps at an early age and placed Plaintiff in a category of individuals where screening is recommended earlier. 4 have been difficult to hold the colonoscope there long enough to visualize and remove the polyp. See page 39, lines 1-12 of Exhibit D. 20. Accordingly, Dr. Lewis exercised his clinical judgment that the polyp was not near malignant and the appropriate course of action would be to intensify review of Plaintiffs colon by doing a yearly colonscopy. See page 37 of Exhibit D. 21. Dr. Lewis explained his thought process in exercising his clinical judgment as follows: As part of my decision making, if truly what I saw was a large polyp that was near malignant, most individuals would have anemia, blood in the stool, possibly abdominal pain, possibly change in bowel function, none of which he had. So my decision making is just not what I see transiently on a colonoscope. It's the whole clinical picture, and the rest of the clinical picture did not support the fact that he most likely had colon cancer at that time. See page 41, lines 13-22 of Exhibit D. 22. In accordance with the plan to intensify review of Plaintiffs colon, Plaintiff returned for a second colonscopy on January 30, 1998. 23. During the 1998 colonoscopy, Dr. Lewis did not see the polyp visualized during the 1997 colonoscopy. See page 45 of Exhibit D. 24. Dr. Lewis testified as follows regarding the area of concern: What I mentioned here [in the procedure note] was that the polypoid mucosa abnormality of the ascending colon was not seen despite taking several careful looks in and out of the area. I could not confirm it. So I actually, despite the prep being suboptimal, I took more individual attention to look at that area and I could not confirm it at that time. See page 45, lines 2-8 of Exhibit D. 24. Because of the circumstances of the colonscopy (i.e. poor preparation 3 ), Dr Lewis took the extra precaution of checking a blood count and three stool hemoccults which ... are more likely to suggest that there could be a malignancy or near malignancy because they are usually either anemic or traces of blood in the stool. See page 43, lines 1-5 of Exhibit D. 25. In accordance with the plan to intensify review of Plaintiff s colon, Plaintiff returned for a third colonscopy on March 22, 2000. 26. Again, Dr. Lewis took extra steps to ensure appropriate visualization of Plaintiff's colon and described the colonoscopy as follows: Again, it was a very twisted tortuous colon, that I had to lay the patient in multiple positions to get good visualization. This time what I visualized would be a much smaller sessile polyp, possibly the same one or maybe one near the other one that I had seen previously. See page 47, lines 3-9 of Exhibit D. 27. The pathology of the biopsies revealed a benign tubular adenoma. See Surgical Pathology Report of Henry S. Crist, M.D. attached hereto as Exhibit G. 28. Again, Dr. Lewis exercised his clinical judgment and formulated a plan as follows: My thinking was that since it appeared smaller than I had previously estimated, and because it had not progressed in a premalignant potential from previously, that I would increase my surveillance colonoscopies and do one in one year. See page 48, line 25 through page 49, line7 of Exhibit D. My feeling, if I had better visualization and decent biopsies, that it appeared smaller and benign than it had been previously. That tells me that it's growth characteristics were not much at all, and that I could safely do a colonoscopy in one year, and at that time I 3 Preparation entails taking laxatives, drinking liquids and not eating food for the day or so proceeding the examination to clear out the colon. See page 43, lines 16-21 of Exhibit D. 6 mentioned that it appeared benign in my 2000 colonoscopy report. See page 49, lines 11-17 of Exhibit D. 29. In accordance with the plan to intensify review of Plaintiff's colon, Plaintiff returned for a fourth colonscopy on April 10, 2001. 30. During the 2001 colonoscopy, Dr. Lewis was able to rule out obstructing cancer; however, he could not rule out medium or smaller polyps. See page 53 of Exhibit D. 31. Again, Dr. Lewis exercised his clinical judgment and formulated a plan as follows: My clinical sense over time was what was initially thought to be a larger polyp was smaller the next time I saw it, had benign characteristics on biopsy. So I did not feel that I would rush into another procedure when prior to 2001 he had had multiple colonoscopies, and in fact the appearance was even improved from the very first time. So I felt, again, we had the luxury of waiting one year with intensified prep. See page 53, line 21 through page 54, line 5 of Exhibit D. 32. In accordance with the plan to intensify review of Plaintiffs colon, Plaintiff returned for a fifth colonscopy on May 1, 2002. 33. During the 2002 colonoscopy, Dr. Lewis visualized three small sessile polyps. See page 54 of Exhibit D. 34. Dr. Lewis completely removed two of the polyps and biopsied the third with ten (10) biopsies. See page 55 of Exhibit D. 35. The pathology of the biopsy revealed a benign tubular adenoma. See Surgical Pathology Report of Henry S. Crist, M.D. attached hereto as Exhibit H. 36. Dr. Lewis performed his last annual colonoscopy on June 30, 2003. His assessment was as follows: 7 What I would say is with my best two preps and my best two colonoscopies [2002, 2003] I could not confirm what I thought I saw on the worst prep'd colons earlier. So instead of seeing something that was progressively getting worse each year, as I was visualizing better I was seeing something smaller and benign which lead me to suggest that maybe what I saw earlier was over represented in my interpretations. See page 57, line 24 through page 58, line 6 of Exhibit D. 37. In July 2005, Plaintiff experienced rectal bleeding for two days and had an upper endoscopy performed on August 4, 2005, which revealed no abnormalities. 38. On December 3, 2005, Plaintiff presented to Carlisle Regional Medical Center with rectal pain and bleeding. A colonoscopy on December 7, 2005 revealed a partially obstructing malignant mass. Studies revealed wide spread metastases. Argument 39. Summary judgment is appropriate where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Dean v. Commonwealth of Pennsylvania Dept' of Transn, 751 A.2d 1130, 1132 (Pa. 2000); Pa. R.C.P. 1035.2. 40. The moving party has the burden of proving the non-existence of any genuine issue of material fact. Kilgore v. City of Philadelphia, 717 A.2d 514 (Pa. 1998). 41. In response to the moving party proving the non-existence of any genuine issue of material fact, the non-moving party must adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the non-moving party. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). 42. The purpose of a motion for summary judgment is for the court to assess whether there is a "genuine need for a trial" on the issue. Ertel v. The Patriot News Company, 674 A.2d 1038, 1042 (Pa. 1996). 43. It is respectfully submitted that there is no need for a trial on this issue of punitive damages as there is no genuine issue of material fact that Dr. Lewis acted with willful, wanton conduct or with reckless indifference. 44. Punitive damages are a damages award designed to "punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future." Restatement of Torts 2"d §908 (2006). 45. Punitive damages are not to be awarded for negligence, or even gross negligence. McDaniel v. Merck. Sharp and Dohme, 533 A.2d 436 (Pa. Super. 1987). 46. In determining if punitive damages are merited, "[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious." Hutchinson ex rel Hutchinson v. Luddv, 870 A.2d 766, 770 (Pa. 2005). 47. Rather, "a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk." Id. at 772. 48. The viability of a punitive damages claim against a healthcare provider has been codified by the Medical Care and Reduction of Error (MCARE) Act as follows: • punitive damages may only be awarded for conduct that is the result of the health care provider's willful or wanton conduct or reckless indifference to the rights of others. 40 P.S. §1303.505(a). 9 • [a] showing of gross negligence is insufficient to support an award of punitive damages. 40 P.S. § 1303.505(b). • punitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agents that caused the injury unless it can be shown by preponderance of the evidence that the party knew of and allowed the conduct by its agents that resulted in the award of punitive damages. 40 P.S. § 1303.505(c). 49. As noted above, Plaintiffs' Complaint does not contain specific factual allegations that support willful or wanton conduct or reckless indifference on the part of Dr. Lewis. 50. Additionally, Plaintiffs' Complaint does not allege that the Corporate Defendants had any actual knowledge regarding the conduct of Dr. Lewis as it related to the care of Plaintiffs. 51. As far as undersigned is able to glean from oral arguments on the Preliminary Objections, Plaintiffs believe punitive damages are warranted on the theory that Dr. Lewis knew the Plaintiff had cancer for the seven (7) year course of treatment and either intentionally, or recklessly, delayed diagnosing the cancer. 52. There is no evidence in this case that Plaintiff did indeed have cancer for the entire seven (7) years (polyps are not cancerous), that Dr. Lewis appreciated that Plaintiff may have cancer and that Dr. Lewis intentionally or recklessly ignored Plaintiff s cancer. 53. In fact, there is no evidence in this case that any of Dr. Lewis' care of Plaintiff was accompanied with willful or wanton conduct and/or reckless disregard. Simply put, there is no evidence that Dr. Lewis acted with an intent to harm Plaintiff. 54. To the contrary, Dr. Lewis' testimony and conduct demonstrates that he carefully followed Plaintiff over a seven year period, made informed and well-thought out clinical 10 judgments, and was satisfactorily convinced based on medical tests and evidence that Plaintiff was not suffering from colon cancer at the time of the final colonoscopy in 2003. 55. Furthermore, Plaintiffs' own medical experts do not express the conclusion that Dr. Lewis' conduct was anything other than below the standard of care. WHEREFORE, Defendants respectfully request that their Motion for Partial Summary Judgment be granted and that Plaintiffs' punitive damages claim be dismissed with prejudice. Respectfully submitted, Dated: lot 0-1 FOULKROD ELLIS PROFESSIONAL CORPORATION By: Leigh J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 11 ?, L, ??,+ A- JUN-15-2006 THU 10:24 AM TDC ERO PAX NO. 804 67? 8860 P. C2 w THE DOCTORS COM JUN 15 E R 0 ROBERT LOY AND LINDA LOY, IN THE COURT OF COMMON PLEAS HIS-WIFE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 6? -- 3117 2006 GREGORY L. LEWIS, M.D., CIVIL ACTION - LAW CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., : MEDICAL MALPRACTICE Defendants JURY TRIAL DEMANDED ICE TO YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association - 32 South Bedford Street '••. Carlisle, Pennsylvania 17013 r - Phone: (717) 249-3166 1 RUS ?P'?Ftgom;*RECORp (eoo) 990-910e ? Y'•Q;"? w?s+'?,,l.bere.ynto? ? hae?o AL . JUN-15-2006 THU 10:24 AM TDC ERO ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants FAX NO. 804 373 8860 P. 03 IN THE COURT OF -COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2006 CIVIL ACTION - LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED L?iINT PLAINTIFFS' COMP AND NOW come the Plaintiffs, Robert Loy and Linda Loy, his wife, by and through their attorney, David J. Foster, Esquire, COSTOPOULOS, FOSTER & FIELDS, and respectfully represent as follows in support of this Complaint: =a Parties 1. Plaintiffs, Robert Loy and Linda Loy, his wife, are adult individuals residing at R.D. 2, Box 61, Loyeville, Perry County, Pennsylvania 17047. 2. Defendant, Gregory L. Lewis, M.D., is and at all times hereinafter referred to, was a physician duly licensed to practice his profession as provided by the laws of the Commonwealth of Pennsylvania and engaged in the practice of his profession at Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd., 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. Plaintiff, Robert Loy, is asserting a professional liability claim against this Defendant. 3. Defendant, Carlisle Digestive Disease Associates, Ltd., is 1 JUN-15-2006 TR 10:24 AM TDC ERO FAX NO. 804 673 8860 P. 04 and at all times hereinafter referred to, was a corporation duly authorized to do and doing business in the Commonwealth of Pennsylvania as a medical clinic with its primary place of business located at 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. Plaintiff, Robert Loy, is asserting a professional liability claim against this Defendant. 4. Defendant, Carlisle Endoscopy Center, Ltd, is and at all times hereinafter referred to, was a corporation duly authorized to do and doing business in the Commonwealth of Pennsylvania as a medical clinic/endoecopy center with its primary place of business located at 241 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. Plaintiff, Robert Loy, is asserting a professional liability claim against this Defendant. 5. At all relevant times herein, Defendant, Gregory L. Lewis, M.D., was an actual or ostensible agent, servant and/or employee of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. Background Allegati ns 6. At all relevant times herein, Plaintiff, Robert Loy, relied upon the professional judgment, ability and knowledge of Defendant, Gregory L. Lewis, M.D., who in turn was acting as an actual or ostensible agent, servant and/or employee of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 2 1UN-15-2006 THU 10 24 AM TDC 6RC FAX X10. 604 673 8860 P. 05 7. Plaintiff, Robert Lay, has a family and personal medical history of colon polyps. 8. Because of this family and personal medical history, Plaintiff, Robert Loy, age 47 at the time, underwent a colonoscopy performed by Defendant, Gregory L. Lewis, M.D., at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd.., on January 22, 1997. 9. In the course of the colonoscopy, Defendant, Gregory L. Lewis, M.D., found a large nodular sessile polypoid mass in the hepatic flexure area of the colon of Plaintiff, Robert Loy; multiple hot biopsies were taken, however, no attempt was made to remove the mass in its entirety. 10. The biopsy specimen consisted of five tiny pieces of tissue and it was determined to be a tubular adenoma. 11. Defendant, Gregory L. Lewis, M.D., recommended to Plaintiff, Robert Loy, that he undergo a surveillance colonscopy the following year. 12. On January 30, 1998, Defendant, Gregory L. Lewis, M.D., performed a second colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd, 13. Although Defendant, Gregory L. Lewis, M.D., saw the large lesion in 1997, he was reportedly unable to locate it and indicated 3 JUN-15-2006 THU 10:25 All TDO ERO FAX NO. 804 873 8880 P. 08 that the colonoscopy was normal. 14. Defendant, Gregory L. Lewis, M.D., recommended CBC and stool hemoccults be performed on Plaintiff, Roberty Loy; if either test was positive, then BE with visualization of the right colon would be performed; if negative, then a surveillance colonoscopy in two years would be performed. 15. on March 22, 2000, Defendant, Gregory L. Lewis, M.D., performed a third colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 16. Defendant, Gregory L. Lewis, M.D., found "a relatively good sized sessile nodular polyp in the proximal transverse colon near the hepatic flexure" and noted that this "is probably the probable polyp I noted 2 years ago that I felt was in the descending colon, and because of looping of the scope, the position was difficult to ascertain at that time." 17. Several hot biopsies were taken but no attempt was made to remove the lesion. 18. Defendant, Gregory L. Lewis, M.D., further noted that the lesion was "hard to see and cannot be removed." 19. The biopsy material consisted of only two tiny pieces of tissue and the biopsy revealed again that it was a tubular adenoma. 20. Defendant, Gregory L. Lewis, M.D., recommended that Plaintiff, Robert Loy, undergo a repeat colonoscopy in one year. 4 JUN-15-2006 THU 10.25 AM TDC ERO FAX NO. 804 873 8860 P 07 i i 21. On April 10, 2001, Defendant, Gregory L. Lewis, M.D., performed a fourth colonoscopy on Plaintiff, Robert Loy, at the medical clinic/eadoecopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 22. Defendant, Gregory L. Lewis, M.D., noted inadequate preparation of the colon and was uncertain that he reached the and of the colon, known as the cecum. 23. Notwithstanding the poor preparation of the colon and the lack of certainty about the completeness of the procedure, Defendant, Gregory L. Lewis, M.D., recommended that Plaintiff, Robert Loy, undergo a repeat colonoscopy in one year. 24. On May 1, 2002, Defendant, Gregory L. Lewis, M.D., performed a fifth colonoscopy on Plaintiff, Robert Loy, at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 25. Multiple polyps were seen including a 4 mm. polyp in the proximal transverse colon which was flat; a hot biopsy was performed but the resection was incomplete. 26. Biopsy results indicated that the transverse colon polyp was adenomatous. 27. Defendant, Gregory L. Lewis, M.D., recommended that Plaintiff, Robert Loy, undergo a one-year follow-up colonoscopy. 28. On June 30, 2003, Defendant, Gregory L. Lewis, M.D., performed a sixth colonoscopy on Plaintiff, Robert Loy, at the 5 JUN-15-2006 THU 10;25 AM TDC ERO F19 NO. 804 673 8880 P. 08 medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 29. Three tiny polyps, 1 mm. in size, were found. 30. The specimen reportedly showed benign hyperplastic tissue and colonic muscoea with no pathologic diagnosis and they recommended a repeat colonoscopy in 5 years. 31. In July of 2005, Plaintiff, Robert Loy, was experiencing gastrointestinal bleeding and an EGD was performed by Theodore Berk, M.D., at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 32. No colonoscopy was performed because of the findings of the prior colonoscopies. 33. In December of 2005, Plaintiff, Robert Loy, was experiencing recurrent rectal bleeding and a seventh colonoscopy was performed by Dr. Berk at the medical clinic/endoscopy center of Defendants, Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. 34. This colonoscopy revealed a partially obstructing, malignant-appearing mass. 35. A biopsy indicated that this was adenocarcinoma. 36. On December 29, 2005, Plaintiff, Robert Loy, underwent a R hemicolectomy and liver biopsy; obstructing colon cancer as well as liver and peritoneal metastases were found. 9 JUN-15-2006 THU 10:25 P.M TDC ERO PAX 'NO, 804 67? 8860 P. 09 37. The tumor was located in the proximal transverse colon. 38. Plaintiff, Robert Loy, is undergoing chemotherapy and other treatments but continues to have advanced colon cancer and the prognosis is poor. Count I: Negligence Plain tiff Robert Loy v De fendant Gregory L. Le wi s. M.D. 39. The allegations set forth in paragraphs 1 through 38 above are incorporated herein by reference as if fully set forth. 40. In providing medical treatment and care to Plaintiff, Robert Loy, and in analyzing and reading the results of the biopsies, the Defendant, Gregory L. Lewis, M.D., was required to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances. 41. Defendant, Gregory L. Lewis, M.D., in providing medical treatment and care to Plaintiff, Robert Loy, and in analyzing and reading the results of the biopsies, failed to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances in that he: a) failed to diagnose and treat his colon cancer; b) failed to adequately evaluate the large colon lesion seen in 1997; C) improperly and wrongly relied on tiny superficial biopsy specimens.to provide a full 7 JUN-15-2006 THU 10 26 AM TDC ERO SAX NO. 804 673 8860 P 10 histologic evaluation of the lesion in 1997; d) failed to recognize that the large lesion in 1997 required complete removal to assure complete histologic diagnosis and cure; e) failed to recognize that sessile modular lesions are more likely to be or to become cancerous; E) failed to recognize that a large lesi= such at that found in 1997 has a higher likelihood of being or becoming cancerous than a smaller lesion; g) failed to explain the absence of the large lesion found in 190 during the 1998 colonoscopy; h) improperly and wrongly relied on CBC and stool hemoccults to make a determination as to the need for BE for evaluation of the right colon in 1998; i) failed to adequately evaluate the colon lesion seen in 2000; j) improperly and wrongly relied on tiny superficial biopsy specimens to provide a full histologic evaluation of the lesion in 2000; k) failed to recognize that the lesion in 2000 required complete removal to assure complete histologic diagnosis and cure; 1) improperly and wrongly relied on a colonoscopy in 2001 when the preparation of the colon was technically poor and the completeness of the procedure could not be certain; M) failed to explain the absence of the large lesion found in 1997 during the colonoscopies of 2001, 2002 and 2003; n) improperly and wrongly relied on hot biopsies with tiny tissue fragments as well as 8 JUNr15-2006 THU 10;26 AM TDC ERO FAX NO. 804 673 8860 P. it incomplete removal to treat a pre-malignant colon lesion such as those found in 1997 and 2000; o) failed to seek and obtain the advice and instruction of qualified specialists or their superiors in the field of gastroenterology; and p) failed to refer Plaintiff to qualified specialists or their superiors in the field of gastroenterology who would have undertaken the appropriate treatment and care of him. 42. The negligence, carelessness and/or recklessness of Defendant, Gregory L. Lewis, M.D., was a substantial factor in causing the injuries and damages sustained by Plaintiff, Robert Loy, described above in detail, which averments are incorporated herein by reference. 43. As a direct and proximate result of' the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff experienced a progression of a pre-malignant lesion or early cancer to advanced colon cancer or advanced metastatic colon cancer. 44. As a further direct and proximate result of the negligent, careless and/or reckless, medical treatment and care of ------ - ----- Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff was caused a substantial delay in the detection of his colon cancer and the subsequent treatment for it, which delay in turn caused the cancer to metastasize or spread significantly, increasing the risks and damages to Plaintiff and thereby markedly 9 JUG;-15-2006 THU 10;26 AM TDC ERO FAX N0. 804 673 8860 reducing his chances of cure, survival and life expectancy. P, 12 45. As a further direct and proximate result of the negligent, careless. and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff did not undergo immediate treatment for his colon cancer at a time when it remained a highly treatable and curable form and degree of cancer. 46. As a further direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has been obligated to receive and undergo additional medical attention and care and to incur additional expenses, and will be obligated to continue to receive and undergo additional medical attention and care and to incur such additional expenses for an indefinite time in the future. 47. As a further direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has suffered physical pain and suffering, mental anguish and humiliation and will continue to so suffer for an indefinite time in the future. 48. As a further direct and proximate result of the negligent, careless and/or recklessmedical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the 10 JUNE 15-2006 THU 10:26 AM TDC ERO FAX NO. 804 673 8860 P. 13 Plaintiff has suffered a loss of earnings and/or impairment of his earning capacity and power and will continue to so suffer for an indefinite time in the future. 49. As a further direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by Defendant, Gregory L. Lewis, M.D., the Plaintiff has suffered a loss of life, s pleasures and will continue to so suffer for an indefinite time in the future. f?50. The conduct of Defendant, Gregory L. Lewis, M.D., as alleged above, in providing medical treatment and care for Plaintiff, Robert Loy, was outrageous ahd recklessly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, based on the foregoing averments, hereby demands judgment against Defendant, Gregory L. Lewis, M.D., and the award of compensatory and punitive damages in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Q IT• Vicarious Liability -- Wt Plaintiff Robert Loy v Defendant Carlisle Dicreetive Disease Aseociates. Ltd. 51. The allegations set forth in paragraphs 1 through 50 above are incorporated herein by reference as if fully set forth. 52. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Digestive 11 JUN.-15-2006 THU 10.27 AM TDC ERO FAX NO, 804 6 7 3 8860 P. 14 Disease Associates, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D., were acting within the scope of their employment and agency with Defendant, Carlisle Digestive Disease Associates, Ltd., in rendering negligent, careless and/or reckless medical treatment and care to Plaintiff, Robert Loy, as alleged above. 53. Defendant, Carlisle Digestive Disease Associates, Ltd., is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. Lewis, M.D., who negligently, carelessly and/or recklessly rendered medical treatment and care to Plaintiff, Robert Loy, as alleged above. 54. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Digestive Disease Associates, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D.,' which is imputed to Defendant, Carlisle Digestive Disease Associates, Ltd., was a substantial factor in causing the injuries and damages to Plaintiff, Robert Loy, as alleged above. 55. As a direct and proximate result of the negligent, careless and/or reckless medical treatment and care of Plaintiff, Robert Loy, by its actual or oatensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. 12 JUN-15-2006 THU 10:27 AM TDC ERO FAX NO. 804 673 8860 P, 15 Lewis, M.D., which is imputed to Defendant, Carlisle Digestive Disease Associates, Ltd., the Plaintiff has sustained those injuries and damages set forth in paragraphs 43 through 49 above, which averments are incorporated herein by reference. 56. The conduct of Defendant, Gregory L. Lewis, M.D., as alleged above, in providing medical treatment and care for Plaintiff, Robert Loy, which is imputed to Defendant,, Carlisle Digestive Associates, Ltd., was outrageous and recklessly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, based on the foregoing averments, hereby demands judgment against Defendant, Carlisle Digestive Disease Associates, Ltd., and the award of compensatory and punitive damages in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count III; Vicaripus Liability Plaintiff Robert Loy v. Defendant Carlisle Endoscoppv Center, Ltd 57. The allegations set forth in paragraphs 1 through 56 above are incorporated herein by reference as if fully set forth. 58. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Endoscopy Center, Ltd., including but not limited.to Defendant, Gregory L. Lewis, M.D., were acting within the scope of their employment and agency with Defendant, Carlisle Endoscopy Center, Ltd., in rendering negligent, careless and/or reckless medical treatment and 13 JU4-16-2006 THU 10:27 AM TDC ERO FAX NO. 804 673 8860 F. 16 care to Plaintiff, Robert Loy, as alleged above. 59. Defendant, Carlisle Endoscopy Center, Ltd., is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. Lewis, M.D., who negligently, carelessly and/or recklessly rendered medical treatment and care to Plaintiff, Robert Loy, as alleged above. $0. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Carlisle Endoscopy Center, Ltd., including but not limited to Defendant, Gregory L. Lewis, M.D., which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., was a substantial factor in causing the injuries and damages to Plaintiff, Robert Loy, as alleged above. 61. As a direct and proximate result of the negligent, careless and/or reckless medical treatment and care of plaintiff, Robert Loy, by its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, Gregory L. Lewis, M:D., which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., the Plaintiff has sustained those injuries and damages set forth in paragraphs 43 through 49 above, which averments are incorporated herein by reference. 62. The conduct of Defendant, Gregory L. Lewis, M.D., as 14 JUP-15-2006 TNU 10:27 AM TDC ERO FAX NO, 804 678 8860 P, 17 alleged above, in providing medical treatment and care for Plaintiff, Robert Loy, which is imputed to Defendant, Carlisle Endoscopy Center, Ltd., was outrageous and recklessly indifferent to the rights and interests of Plaintiff. WHEREFORE, Plaintiff, Robert Loy, based on the foregoing averments, hereby demands judgment against Defendant, Carlisle Endoscopy Center,. Ltd., and the award of compensatory and punitive damages in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count IV: Loss of Consortium Plaintiff Linda Loy v All Defendants 63. The allegations set forth in paragraphs 1 through 62 above are incorporated herein by reference as if fully set forth. 64. At all relevant times herein, Plaintiff, Linda Loy, and Plaintiff, Robert Loy, were lawfully and continuously married. 65. As a direct and proximate result of the negligence, carelessness and/or recklessness of all the Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., jointly and severally, as described in more detail above, the Plaintiff, Linda Loy, has suffered a loss of consortium, society and companionship of her husband, Plaintiff, Robert Loy. WHEREFORE, Plaintiff, Linda Loy, demands judgment against all the Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease 15 JIJN-15-2006 THU 10,28 AM TDC ERO FAX NO. 804 673 8880 P. 18 Associates, Ltd., and Carlisle Endoscopy Center, Ltd., jointly and severally, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. DATED: May .? , 2006. RESPECTFULLY SUBMITTED: A David J. Fos er, Esquire I.D. No. 2315 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS 16 JUN-15-2006 THU 10:28 AM TDC ERO M NO, 804 673 8860 P. 19 VERIFICAT-T T I, Robert Loy, do hereby verify that the statements made in the foregoing document are true and correct to the beat of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C_S.A. 4904 relating to unsworn falsification to authorities. Y4?&z 'W; zt.4z Robert Loy DATED: May , 2006. 17 JUR-15-2008 TNU 10,28 AM TDC ERO FAX NO. 804 873 8860 P. 20 VERIFICATION I, Linda Loy, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. DATED : May 2 0 0 6 . Linda Loy 18 } b14 -0> FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717)909-6955 Carlisle Endosconv Center. Ltd. ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2006, upon consideration of Defendants' Preliminary Objections, it is hereby ORDERED and DECREED that said Preliminary Objection is GRANTED. Plaintiffs' claims of recklessness and Plaintiffs' claim for punitive damages are hereby stricken with prejudice. J. i FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopv Center. Ltd. ROBERT LOY AND LINDA LOY, IN THE COURT OF COMMON PLEAS HIS WIFE, CUMBERLAND COUNTY, Plaintiffs PENNSI'LVANIA V. DOCKET NO. 06-3117 GREGORY L. LEWIS, M.D., CIVIL ACTION - LAW CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., (MEDICAL MALPRACTICE) Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Robert Loy and Linda Loy, Plaintiffs c/o David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. 0. Box 222 Lemoyne, PA 17043 YOU ARE HEREBY NOTIFIED to plead to the attached NEW NIATTER OF DEFENDANTS, GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., within twenty (20) days from service hereof, or a default judgment may be entered against you. FOULKROD ELLIS A PROFESSIONAL CORPORATION C Date: =' By: Lei A.J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 Counsel to Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates; Ltd., and Carlisle Endoscopy Center, Ltd. FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscg= Center. Ltd. ROBERT LOY AND LINDA LOY, IN THE COURT OF COMMON PLEAS HIS WIFE, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants DOCKET NO.06-3117 CIVIL ACTION - LAW (1vlEDICAL MALPRACTICE) JURY TRIAL DEMANDED PRELIMINARI' OBJECTIONS OF DEFEINTI)ANITS, GREGORY L. LENVIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ETI)OSCOPY CENTER, LTD. TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. ("Defendants"), by and through their counsel, Foullzrod Ellis Professional Corporation, and hereby file the instant Preliminary Objection to Plaintiffs' Complaint which was served upon Defendants on June 1, 2006. 1. Plaintiffs allege medical malpractice against Moving Defendants associated with their care and treatment rendered to Plaintiff husband, Robert Loy. 2. Defendant, Dr. LervN is, is the only health care provider alleged to have been negligent. Carlisle Disestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. are only alleged to have been vicariously liable for the acts of Dr. Lewis. MOTION TO STRIKE ALLEGATIONS OF RECKLESSNESS ANT CLAIM FOR PUNITIVE DAMAGES 4. Pennsylvania Rule of Civil Procedure 1028(a)(2) provides that a defendant may move to strike off a Complaint for lack of conformity to law or rule of court. 5. Without pleading any underlying facts to support such claims, Plaintiffs' Complaint boldly asserts that the acts of Defendants were reckless and Plaintiffs' request that punitive damages be imposed as to all Defendants. A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A". 6. Pursuant to Pennsylvania law, "punitive damages may only be awarded for conduct that is the result of the health care provider's willful or wanton conduct or reckless indifference to the rights of others." 40 P.S. §13031.505(a). 7. Further, "punitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agents that caused the injury unless it can be shown by preponderance of the evidence that the parry knew of and allowed the conduct by its agents that resulted in the award of punitive damages." 40 P.S. §1303.505(c). 8. Plaintiffs do not allege any facts that would suggest willful or wanton conduct or reckless indifference with regard to the conduct of Defendants. 9. At best, Plaintiffs' allegations in the Complaint amount to no more than ordinary negligence for an alleged failure to diagnose colon cancer.1 ' Moving Defendants specifically deny that they committed any acts or omissions that constitute ordinary negligence. Rather, at all relevant times, they met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. 10. Furthermore, there are no allegations in the Complaint relating to the vicarious liability that demonstrate that Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. knew of or allowed the conduct by its agents that should result in the award of punitive damages. 11. It is well settled that "punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake, and errors of judgment." Hall Y. Jackson, 788 A.-2d 389 (Pa. Super. 2001) (citing McDaniel v. Merck. Sharp and Dohme, 533 A.2d 436, 447 (Pa- Super. 1987)). 12. Furthermore, this Honorable Court has consistently dismissed punitive damage claims in medical malpractice actions for failure to plead material facts to support the proposition that a health care provider acted outrageously, with an evil motive, or -%Adth reckless or conscious indifference to a Plaintiff s wellbeing. Garrity v. Macaluso. No. 01-1300 Civil Term, (Ct. Com. Pl., Cumberland Count),, July 31, 2001). Dorsey v. Pinker. No. 98-3107 Civil Term, (Ct. Cam. Pl., Cumberland County, August 4, 1999): Tonsend-Ensor -,,. Entwistle, No. 98-5606 Civil Term, (Ct. Com. Pl., Cumberland County, June 17,1999); Gordon v. Taggart. No. 97-6684 Civil Term, (Ct. Com. Pl., Cumberland County, July 2, 1998). 11 As Plaintiffs have not alleged any material facts that suggest outrageous, reckless, wanton, or willful conduct on behalf of Defendants, their claim for punitive damages should be dismissed. NkMREFORE, Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd., respectfully request that this Honorable Court enter the attached Order and strike all claims of recklessness and claim for punitive damages from Plaintiffs" Complaint v6th prejudice. Respectfully submitted, Dated: 4" Iv" 1D (p FOULKROD ELLIS PROFESSIONAL CORPORATION r Leigh .J. Ellis, Esquire Attomey I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 fx k) ? t-? ! W ROBERT LOY AND LINDA LOY, HIS WIFE, PLAINTIFFS V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD, AND CARLISLE ENDOSCOPY CENTER, LTD, DEFENDANTS IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND HESS, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-3117 CIVIL TERM ORDER OF COURT AND NOW, this 11 day of July, 2006, the preliminary objections of defendants to plaintiffs' complaint, ARE DISMISS B Edgar B. Bayley, J. N David J. Foster, Esquire For Plaintiffs Cindy N. Ellis, Esquire For Defendants :sal Lax ,??? 7J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBERT LOY and LINDA LOY, : CIVIL ACTION - LAW his wife, Plaintiffs v. No. 06-3117 GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. and ENDOSCOPY CENTER, LTD., (MEDICAL MALPRACTICE) Defendants JURY TRIAL DEMANDED Oral Deposition of __.GREGORY L. LEWIS, M.D. DATE: Tuesday, December 5, 2006 TIME: 10:09 a.m. PLACE: 241 Alexander Spring Road Carlisle, Pennsylvania TAKEN BY: Plaintiffs APEX REPORTING SERVICE By: Sharon L. Dougherty P. 0. Box 6265 Harrisburg, PA 17112-0265 717.545.3553 i 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: For the Plaintiffs: DAVID J. FOSTER, ESQUIRE COSTOPOULOS, FOSTER & FIELDS 831 Market Street Lemoyne, PA 17043 For the Defendants: LEIGH ELLIS, ESQUIRE FOULKROD ELLIS, P.C. 2010 Market Street Camp Hill, PA 17011 Witness GREGORY L. LEWIS, M.D. Examination by: Mr. Foster I N D E X Page No. 3 Exhibits Deposition No. 1 (Curriculum Vitae) No. 2 (Records) No. 3 (Handwritten Notes) Marked 3 3 12 APEX Reporting Service i ? 3 1 PROCEEDINGS 2 3 STIPULATION 4 (It is hereby stipulated by and between s counsel for the respective parties that sealing, 6 certifying, and filing are hereby waived, and that all 7 objections, except to the form of the question, are a reserved to the time of trial.) 9 10 GREGORY L. LEWIS, M.D., 11 Having been sworn, was examined and testified as 12 follOWS: 13 Weepsitio& EA tt No. 1, e 14 F das andt mdrked for i en ca on ) 1s . e ositi Exhibit No. 2, Il 16 e n and marked for ie i a 17 rc o t 1e EXAMINATION 19 BY MR. FOSTER: 20 Q Doctor, my name is David Foster. I am an 21 attorney. I represent Robert Loy and his wife in a 22 claim that they have brought against you and this 23 practice. 24 I am going to ask you questions about your 25 involvement in his can. APEX Reporting Service 4 1 Have you ever sat like this before for a 2 deposition? 3 A Yes, I have. 4 Q Are you familiar with the procedures? s A Yes. 6 Q Basically I am going to be asking you 7 questions, and please let me know if you don't a understand a question. 9 A Okay. 10 Q Will you do that? 11 A Yes. 12 Q I will make an attempt to rephrase it a 13 restate it so that you do understand it. 14 Anytime you answer the question we will 15 assume that you understood it and that your answer is 16 what you intended to give. Is that fair? 17 A That's fair. 18 Q You have Counsel here. If you ever need 19 to consult with him or if you need to take a break for 20 any other reason, please let us know and we will do so. 21 A Okay. 22 Q The stenographer is taking everything 23 down. So I will make an effort not to talk at the same 24 time that you do, and please you do the same so that 2.5 she has an opportunity to take everything down. APEX Reporting Service 5 1 A Okay. 2 Q You indicated that you have been deposed 3 before. How many times would you say? 4 A I have been deposed twice. s Q Were they in cases in which you were a 6 defendant as a doctor? 7 A Once I was giving expert testimony, and e the other one I was a defendant, and then later I was a 9 defendant in the one that I gave advice. So I actually o was a defendant twice. 1 Q In the latter one in which you gave 2 advice, were you deposed on that occasion? Was your 3 deposition taken as well? 4 A It was, and then that case was later s dropped. 6 Q So did that case, the one that was 7 dropped, involve colon cancer? e A No, it didn't. 9 Q There was another case that you were o deposed as a defendant. Did that involve colon cancer? 1 A No, it didn't. 2 Q There was a third case you acted as an 3 expert witness, correct? 4 A No. Actually, that was part of the first s case. I actually gave some testimony and then later 1 APEX Reporting Service 6 1 became part of the case. It was confusing. 2 Q Okay. You were never hired as an 3 independent expert for the purpose of litigation. 4 A No. s Q In those prior cases, were they in 6 Cumberland County? 7 A Yes, they were. a Q Were you represented by Mr. Ellis or his 9 firm? 10 A No, I wasn't. 11 Q I guess I should have you state your name. 12 A Yes. My name is Greg Lewis. 13 Q Your work address here? 14 A My work address is Carlisle Digestive 15 Disease Associates, 241 Alexander Spring Road, 16 Carlisle, Pennsylvania 17013. 17 Q Your age? 1e A My age is 57. 19 Q Your educational background? 20 A College, University of Pennsylvania; 21 medical school, Jefferson Medical College in 22 Philadelphia; GI fellowship -- Jefferson Medical 23 College for my medical residency; and Graduate 24 Hospital, University of Pennsylvania, for my GI 2.5 fellowship. APEX Reporting Service 1 7 1 Q When was that? 2 A My GI fellowship was from 1978 until 1980. 3 Q How long have you been in your current 4 practice? 5 A Current practice here with Dr. Berk, my 6 other partner, is 1990. 7 Q 1980? a A 19801 was in a different practice. 9 Q I'm sorry. Did you say 1999 or 1989? 10 A My current GI practice 1990. 11 Q 1990. Okay. 12 A Correct. 13 Q That is with Dr. Berk. 14 A Yes. 15 Q You are licensed in Pennsylvania? 16 A Yes. 17 Q In what specialty? 18 A Both internal medicine and 19 gastroenterology. 20 Q Board certifications? 21 A Both. 22 Q Do you have any additional subspecialties, 23 if there are any? 24 A No, not certified. 25 Q Are you qualified to perform therapeutic APEX Reporting Service 8 1 endoscopy? 2 A Yes. 3 Q Is there a particular certification that 4 may come with that or is available for that? 5 A No. It's part of the training program 6 where you are noted to be skilled in that by doing so 7 many of them. 8 Q What hospital affiliations do you have? 9 A Carlisle Regional Medical Center only. to Q Has your license ever been suspended or 11 revoked? 12 A No. 13 Q You indicated that you are connected with 14 Carlisle Di gestive Disease Associates, Limited, 15 correct? 16 A Correct. 17 Q Are you also connected with Carlisle 18 Endoscopy Center, Limited? 19 A Yes. 20 Q Are they one and the same? 21 A They are both different kind of 22 subcorporations of this general practice, right. 23 Q Do they have the same employees, the same 24 staff 25 A They are all part of our staff, but there APEX Reporting Service 9 i is specialty nurses in the endoscopy side that have 2 different skills and background from the nurses on the 3 other part of the practice. So they do not cross over 4 in their skills. 5 Q Without going into too much detail, could 6 you tell me what the difference is between the two 7 practices? a A The Carlisle Endoscopy Corporation is the 9 location -- it's our ambulatory surgery center part of o our practice where we do our endoscopies, and our 1 nurses are trained endoscopic nurses there. 2 Q Was your care and treatment of Robert Loy 3 limited to the endoscopy center as opposed to Digestive 4 Disease Associates? 5 A Yes, the colonoscopies involved were done 6 there. 7 Q Did you ever do any work for him or render 8 him any services on the other side, the Digestive 9 Disease? o A Before we do an endoscopy, we usually see 1 them on the other side to do a consultation, a medical 2 or gastrointestinal consultation to set up the 3 endoscopy. 4 Q Was that done in this case? 5 A Yes. APEX Reporting Service 10 1 Q We will get to that, but before I get to 2 that, is either the Digestive Disease Associates or the 3 endoscopy center either approved or licensed for 4 Medicare purposes? 5 A Yes. 6 Q Are you familiar with the Agency Health Care Act? 8 A No, not specifically. 9 Q Also called the AHCA. Does that mean 1 o anything to you? 11 A I know that we are certified by several 12 organizations who inspect us, but I'm not sure of the 13 exact name of their agency. 14 Q Who in your practice or who on your staff 15 would - 16 A MaryLu Bricker is her name and she's a 17 registered nurse. 18 Q Is she the office administrator or -- 19 A Right, she is the both quality assurance 20 and administrator for the endoscopy side, that's right. 21 Q Is she also connected with Digestive 22 Disease Associates or does that not apply to that half? 23 A Right. It does not apply to that half. 24 Q Have you reviewed or read any materials in 25 preparation of this deposition? APEX Reporting Service 11 1 A I have read this chart, yes. 2 Q Have you read, for example, the pleadings 3 in this particular case? 4 A Yes, I have. s Q Have you read any texts or articles 6 relevant to the medical issues in this case? 7 MR. ELLIS: In preparation? e BY MR. FOSTER: 9 Q In preparation for this deposition. to A I would say that in preparation for this ii deposition, I did. 12 Q Could you tell me what they were? 13 A I don't have them listed here. I have 14 them written down. is Q Okay. 16 A Do you want me to -- 17 MR. ELLIS: If you have them written down, 18 it is something you reviewed in preparation for this 19 deposition, then he is entitled to know what that is. 2o BWR. FOSTER: 21 Q Is that accessible? 22 A Yeah, I do have it. I will have to get 2 3 the names. 24 Q Okay. 25 (Discussion off the record.) APEX Reporting Service 12 1 BY MR. FOSTER: 2 Q Doctor, you've obtained a list of various 3 things you read in preparation of this deposition. 4 MR. FOSTER: I don't know if you want to s affix that -- 6 MR. ELLIS: Can we affix that to the 7 deposition? Is that okay with you? e THE WITNESS: That would be fine, yes. 9 MR. FOSTER: We will mark that Exhibit 3 t No. 3, to e Won.) 11 wdaes n omarsked for 12 i en 13 BY MR. FOSTER: 14 Q What medical texts or journals do you 15 subscribe to in your office? 16 A Personally, New England Journal of 17 Medicine, Journal of Gastroenterology, Journal of the le American Medical Association, and we have the standard 19 textbook of gastroenterology by Fortran and Sheslinger. 20 Q Do you recognize any of those as being 21 authoritative in the field? 22 MR. ELLIS: Do you understand what that 23 means? 24 THE WITNESS: Well, you can define for m 25 if you would, authoritative. APEX Reporting Service 13 1 MR. ELLIS: I think it has a different 2 legal context than what these guys think. That was my 3 purpose. 4 BY MR. FOSTER: s Q Well, do you rely on them in making 6 medical decisions? 7 A Yes. Frequently. e Q When did you first undertake Robert Loy as 9 a patient? o A For this I will refer to the records. 1 It appears that I saw him for the first time on 2 January 8th, 1997. 3 MR. ELLIS: Look at the precolonoscopy 4 consultation sheet. s BY MR. FOSTER: 6 Q Does that indicate that you were referred 7 by Dr. Marakowski, his family physician? e A That's correct. 9 Q What was the reason for the referral? o A He was slightly older than fifty, which 1 would be the standard age for beginning routine 2 surveillance colonoscopy. He was 47, but his father 3 had had polyps slightly older than the age of fifty. 4 So normally that is an indication to begin surveillance s of siblings or other family members. So that is why I APEX Reporting Service 14 1 saw him 2 Q Did he have any symptoms at that time? 3 A He did not appear to have any symptoms. 4 Q So would it be fair to say that he was s there for screening purposes? 6 A That's correct. 7 Q The screening in his case took place e earlier because of his family history? 9 A That's correct. o Q Which gives rise to an increased risk of 1 colon cancer; is that correct? 2 A Not necessarily. I don't know what kind 3 of polyps his father had. His father did not have 4 colon cancer. The increased risk for the son would be s if his father had colon cancer. 6 If his father had colon polyps that were 7 not premalignant, then it would not increase the risk e to his son. 9 Q But the fact that you were unaware o specifically of what those polyps consisted of gives 1 rise to the possibility of increased risk. 2 A That's right. That's con-ect. 3 Q Thus, an increased desire for screening 4 and surveillance? s A That's correct. We frequently don't have APEX Reporting Service I 15 1 the records of the parent. So we don't know what type 2 of polyp that they had. 3 Q Is it accurate to say that most polyps are 4 not symptomatic? 5 A I would say that that is correct. 6 Q Is the major concern with regard to polyps 7 in the colon the malignant potential that they give e rise to? 9 A That's convect. 10 Q Doctor, in my reviewing of the records it 11 appears to me that there were a total of six 12 colonoscopies that you performed personally on Mr. Loy, 13 and I am just going to list them. You don't need to 14 verify these. I think the dates are accurate or close 15 to being accurate. 16 A Okay. 17 Q Of January 22nd, '97, January 30, '98, 1e March 22nd, 2000, April 10, 2001, May 1st, 2002, and 19 June 30th, 2003. 20 The record, copy of the records that I 21 have have copies of the images that were taken during 22 the course of the colonoscopies with respect to the 23 later two, that being in May 2002 and in June of 2003. 24 The copies of the records that I have for 25 the preceding four colonoscopies do not have any copies APEX Reporting Service 16 1 of any images taken during the colonoscopies. 2 Do you have in your file any copies of 3 images for those first four colonoscopies? 4 A No, I don't. 5 Q Did you take images during the course of 6 the first four colonoscopies? 7 A I do not believe we did so because we did s not have imaging capabilities based on our technical 9 software that we used with the colonoscopy system at 1 o that time. 11 Q Just so that I understand correctly what a 12 colonoscopy consists of, that is a scope that is run 13 through the colon entering through, I guess, the anus 14 or the rectum area through the entire course of the 15 colon, ultimately hopefully to the cecum; is that 16 correct? 17 A That's correct. 18 Q During the course of that procedure a 19 continuous video image is displayed on the video 20 monitor; is that correct? 21 A That's right. 22 Q Am I correct that that procedure is 23 typically not videotaped? 24 A That is correct, typically is not. 25 Q Are there ever any circumstances under APEX Reporting Service 17 1 which the colonoscopy would be videotaped? 2 A Not normally in a regional hospital. More 3 likely in an academic medical center possibly for 4 instructional or educational purposes. 5 Q When images are taken during the course of 6 colonoscopy, they are still images of particular 7 locations that have been reached by the scope; is that e correct? 9 A That's correct. 10 Q You indicated that at the time period of 11 the first four colonoscopies you did not have the 12 equipment that would allow you to take photos or 13 images, still images of any area of the colon; is that 14 correct? 15 A That's correct. 16 Q Now that you have that capability, when is 17 it that you take -- how many pictures do you take and 1e what are the reasons for taking particular pictures? 19 A The number of images we would take would 20 vary, but normally you would take one when you've 21 reached the cecum to document that you've reached the 22 cecum. Many times you would take a photograph of the 23 rectum because there is an area that can hide polyps, 24 and you have to do a special procedure to image the 2 s rectum. So we do that, and anytime that we see a polyp APEX Reporting Service 18 1 that may be suspicious or one that we would want to 2 document before we remove it or biopsy it. 3 Q Now, just so I understand the process, the 4 cecum is when you reach the end. That is as far in as 5 you go. 6 A Correct. 7 Q You take a picture of the cecum to e document that you reached the cecum. 9 A Correct. 10 Q And that is to insure that you've scoped 11 out the entire colon. A That's correct. 3 Q When you take the other photos, do you 4 take them on the way in or the way out or does it 5 matter? 6 A You may see different things on the way in 7 than on the way out. So since you don't know, you more e likely take them as they come first time. So that 9 would be on the way in. If you see something different 0 on the way out, you would take them on the way out. 1 Q When you have photographs in a chart as - 2 you do for the later two colonoscopies in this case -- 3 A Right. 4 Q -- can you document from looking at the 5 chart whether they were taken on the way in or on the APEX Reporting Service 0 0 19 1 way out? 2 A No, I don't know that. There is no way of 3 knowing that. 4 Q Does the chart document exactly where each s particular photo was taken within the colon? 6 A It's up to the expertise of the person 7 doing the colonoscopy because there are not a lot of e good markers to know that. So it's where you feel that 9 it's located, but there is no external validating 1o source to tell you where you are. 11 Q But in terms of the record, you make some 12 notation that allows someone reading the record to 13 determine where the physician felt the photo was taken. 14 A Absolutely. That's correct. 15 Q When you make a determination in your own 16 mind that the best estimate, if you will -- 17 A Right. 18 Q -- of where the photo was taken, how do 19 you do that? By the length of scope that -- 20 A No. There are many different ways. There 21 can be some anatomic landmarks that would guide you. 22 Once in awhile you can see the transilluminated light 23 image through the abdominal wall that might tell you 29 what part of the colon you are in, and it depends on 25 the expertise and skill of the person doing it. APEX Reporting Service 20 In other words, you can actually have the entire colonoscope in the colon and only be a third of 3 the way around. 4 Q Okay. s A So it's not full proof. 6 Q That is why documenting reaching the cecum is important in part. A Yeah, I think so. 9 Q So the only two specific landmarks, and 1 o correct me if I am wrong, are actually the rectum and 11 the cecum. 12 A I would say the rectum for sure. There 13 can be images where you think you are in the cecum and 19 you are not, but for the most part you can identify the 15 cecum. 16 Q You identify the cecum because you can see 17 the opening of the appendix; is that correct? 18 A That is one thing you can see that makes 19 it the -- 20 Q Can you say whether you were able to reach 21 the cecum in all six of the colonoscopies that you 22 performed in this case? 23 A I cannot say absolutely. I would have to 24 refer to each report and look, what I felt at the time, 25 if you would like me to do that. APEX Reporting Service 21 1 Q. Sure. Take a couple moments. 2 A In 1997 my notation was that I did reach 3 the cecum. The colonoscopy in 1998, I indicated that I 9 reached the cecum. s In my colonoscopy of 2000,1 was able to 6 reach the cecum and I did note that there was a 7 transillumination of the light in the right lower e quadrant. So that is a little better guide. 9 In 2001, I could not document for sure io because of the poor prep and much stool whether I did ii reach the cecum or not. There was some doubt there. 12 . In 2002 -- let me see -- my report here -- 13 I indicated that I did reach the cecum. 19 In 2003, I indicated that I reached the 15 cecum. 16 Q Is there any significance or concern on 17 those occasions when you are not able to be confident 18 that you reached the cecum? 19 A Would you rephrase that? 20 Q Do you have any concerns on those 21 instances, as in 2001, for example, in this case, when 22 you aren't able to be assured that you've actually 2 3 reached the cecum? 29 A Well, in that particular case since I had 2 s reached the cecum previously and did not identify a APEX Reporting Service 22 1 lesion, I wasn't specifically concerned about the 2 cecum. I was concerned about areas higher than the 3 cecum, and I felt that I most likely reached those 4 higher areas. s There is always some concern when you 6 don't reach the cecum, but one would have to imagine if 7 you've looked at that area two or three times in the e last two or three years and did not see any 9 abnormalities that it would be unusual to suddenly o develop a very large polyp there. 1 Q But isn't one of the reasons that it's 2 important to reach the cecum is to have assurance that 3 you've actually viewed the entire colon? 4 A Right, that is true, but in general, if a s person has had a series of colonoscopies previously and 6 you've looked at that area, you are not as worried 7 about -- after the third or fourth one not exactly e looking at the cecum, especially if you feel you've 9 reached 90 percent of a complete colonoscopy on the o third or fourth time you've done it, and especially if 1 the patient has no family history of colon cancer, if 2 he has not passed blood in the stool, he has normal 3 bowel function, no abdominal pain. The sensors for -- 9 in fear of not reaching the cecum are a little bit s less. APEX Reporting Service 23 1 Q During that same colonoscopy in 2001, you 2 indicated there was poor prep and a lot of stool. 3 A Right. 4 Q What do you mean by that? s A That means that part of the colon was not 6 well visualized because the patient had some difficulty 7 taking -- most likely taking the laxatives or the e laxatives were less effective in cleaning him out. So 9 the visualization was not optimal. to Q What do you, as a reasonably prudent 11 physician, feel should be done on those occasions when 12 you undergo -- or when you perform a colonoscopy, that 13 under those circumstances where the preparation is poor 14 and the visualization is therefore poor? 15 A It really depends on the context of the 16 particular case. There is no one answer to your 17 question. 18 If the person is young, his father and 19 mother had colon cancer, brother or sister had colon 20 cancer, one is very aggressive if it's the very first 21 colonoscopy and you've not visualized the whole colon. 22 You will look for other ways of visualizing the colon. 23 If someone again has no symptoms, have had 24 several prior colonoscopies that you think you've 25 visualized well and it's the third or fourth one, and APEX Reporting Service 24 1 again, there is no blood in the stool, normal blood 2 count, no abdominal pain, you would feel fairly 3 comfortable that there was nothing there that you 4 missed, and everything is a percentage or a s probability, and therefore, the next time you would do 6 a colonoscopy usually you would give them a better -7 prep, a different prep, a more thorough prep so that e you would see that area better. 9 Q Are you saying that you get some 1o reassurance from the fact that the patient exhibited no 11 symptoms? 12 A That is one of many parameters that we 13 look at when we are trying to size up clinically what 14 the situation is. It's not the only parameter though. 15 Q But isn't it true that for screening 16 purposes you are talking about patients who have no 1-7 symptoms generally when you are performing a screening 18 colonoscopy as was done here, correct? 19 A Correct. 20 Q Does it matter if on prior colonoscopies 21 you did see polyps or masses? 22 A Again, it depends on the size, the biopsy 23 results, and whether he has had a change in symptoms 24 from when he was previously asymptomatic how we would 25 approach it. APEX Reporting Service 25 Q If you had a patient who had polyps in 2 previous colonoscopies-- 3 A Right. 4 Q -- but who was nevertheless asymptomatic s throughout the entire course, are you saying that 6 because he was asymptomatic you have confidence about a 7 colonoscopy that is done with poor preparation? e A No. No. It's not the lack of symptoms 9 that drives this. It's the completeness of prior io colonoscopies. It's the family history, and it's the 11 biopsy results. It's all part of the picture. 12 Q Let's go to the first colonoscopy which I 13 think was January 22, 1997; is that correct? 14 A Yes, that's correct. 15 Q Now, because there are no photos, we have 16 to rely strictly upon the notes that you took 17 documenting what you observed, correct? is A That's correct. 19 Q In your note of that date, you indicated 20 that in the ascending colon in the upper half near the 21 hepatic flexure there is a large nodular sessile 22 polypoid mass. What is meant by, first of all, 23 nodular? A Nodular would mean not smooth. Q What is the significance of a nodular APEX Reporting Service 26 1 polypoid mass as opposed to a smooth polypoid mass in 2 terms of its malignant potential? 3 A I really can't answer for sure not being a 4 pathologist. A smooth mass could be malignant. A s nodular mass could be malignant. 6 I would speculate that if it were nodular 7 it might more likely have malignant potential. 6 Q What does the word sessile mean? 9 A Sessile means, has a broad base and fixed o and not on a stalk. 1 Q I'm sorry? 2 A Not on a stalk, S-T-A-L-K. 3 Q What would be the opposite of sessile? 4 A Pedunculated,P-E-D-U-N-C-U-L-A-T-E-D. s Q In layman's terms, what does pedunculated 6 mean? 7 A That means that the polyp is on a stalk. e Q What is the significance of a polyp being 9 sessile as opposed to pedunculated with regard to its o malignant potential? 1 A Again, it's difficult to say. There are 2 many sessile polyps that remain benign and never become 3 malignant. Some sessile ones may become malignant. 4 Some pedunculated polyps are malignant and many are s benign. APEX Reporting Service s 1 27 1 It really depends on the growth 2 characteristics of the sessile polyp, whether it may 3 turn into a malignancy or not. 4 Q In general terms though, is a sessile s polyp of more concern than a pedunculated polyp? 6 A I'm not sure that it is if it's small and 7 has slow growth characteristics, but if it's a large e sessile polyp, then it may have more malignant 9 potential. 10 Q You then say they had the appearance of 11 villous adenoma. What is villous adenoma? 12 A That is a polyp that has slightly more 13 malignant potential than a tubular adenoma which is 14 another type of benign polyp that has malignant 15 potential. There is a spectrum of potential to become 16 malignancy with polyps. 17 Q Is there a name for that spectrum or is 18 there a way of quantifying the -- 19 A Most polyps we define as adenomatous or 20 hyperplastic. Adenomatous polyps have increased 21 malignant potential. Hyperplastic usually do not. 22 Q Then you say, but I certainly could not 23 exclude a small adenocarcinoma. 24 A Correct. 25 Q That means, first of all, you could not APEX Reporting Service 28 i say from your visualization during the colonoscopy that 2 what you observed was not a small adenocarcinoma, 3 Correct? 4 A Correct. s Q What is an adenocarcinoma? 6 A It's a malignancy. Q What was the size that you determined it e to be? 9 . A My estimate during the colonoscopy which i o was poorly visualized because of a lot of stool may be 11 inaccurate, but it was my thought that it was 12 4 to 5 centimeters in length and 1 to 2 centimeters in 13 width 14 Q You said there was a lot of stool in this 15 one. Did that imply poor prep as well in this 16 particular colonoscopy? 17 A Yes, it was. 18 Q Did that create a lack of confidence in 19 you in terms of what you were visualizing? 20 A Right. It reduced the certainty of what I 21 saw was really what I saw. 22 Q First of all, what is a polypoid mass in 23 general? 24 A It's a growth that has the shape of a 25 polyp. APEX Reporting Service 29 1 Q That is specifically what you are looking 2 for during the course of colonoscopy. 3 A That's correct. 4 Q How would you characterize the size that s you visualized as being large, small, moderate, within 6 the spectrum of polyps that you encounter during 7 colonoscopy? e A I would say it's larger than the standard 9 size polyp that I would see. 10 Q Is there a correlation between the size of ii a polyp and it's malignant potential? 12 A For adenomatous polyps, especially the 13 larger adenomatous polyp, is the higher its malignant 14 potential. 15 Q Now, it does say in here that it was 16 photographed looking down. 17 A Again, I can't recall. I know this was 1e done at the hospital in 1997. It was the old hospital. 19 I can't recall honestly which video system we used, and 20 if there were photographs, which is possible, it's not 21 kept with the chart. 22 So I really -- I have never had it in this 23 record here, and there may be one somewhere. Q Would it be possible at the hospital? A It's possible. It's possible. APEX Reporting Service 30 Q Now, you indicate that you took multiple 2 hot biopsies. 3 A Correct. 4 Q What does that mean? s A We use electric current to attach to a 6 biopsy forceps and it takes pieces of whatever it 7 biopsies and cauterizes them to reduce the chance of a bleeding. 9 Q What do you do with the biopsies? 10 A We affix them and prepare them to send ii them to a pathologist who interprets them. 12 Q Going back to the size of the polyp in 13 this case, are you able to calculate based upon what 14 you observed an approximate volume of the polyp? 15 A It's difficult when you have probably less 16 than a second visualization. Really, it's hard to make 17 that mental calculation. 1e All I could do is have a gross feeling 19 that it was larger than normal, but it's nothing 20 because of the conditions that I could fixate on for 21 long periods of time to do a mental calculation. 22 Q Can you give us an idea -- you talk about 23 the length, 4 to 5 centimeters and the depth -- I'm 24 sorry -- the width 1 to 2 centimeters. Can you give us 25 an idea of what the depth might have been? APEX Reporting Service y t ? 31 A No, I couldn't recall and I didn't note 2 it. So I am not sure. 3 Q The biopsies that were taken in looking at 4 the pathology report that accompanies this, it said it s consisted of five tiny pieces of tissue. Would that be 6 accurate as far as you know? 7 A I would say tiny being the eyes of the e beholder because a pathologist normally receives 9 sections from a surgeon that are bigger than what we 10 obtain with a biopsy forceps through a small 11 colonoscope. They called it tiny. I would say they 12 were standard size biopsies. 13 Q Could you quantify what a standard size 14 biopsy would be? 15 A Because when you biopsy anything, you 16 biopsy it to fill the little cup of the biopsy forceps 17 and it takes a full piece, and that would be standard 1e size. 19 Q Can you give me an estimate of what that 20 size would be? 21 A No. 22 Q Millimeters as opposed to centimeters? 23 A Right. That's correct. 24 Q Are you able to say where you took the 25 five biopsies from? APEX Reporting Service 32 1 A Well, it was my feeling at the time that 2 it was from the sessile mass in the ascending colon 3 that I visualized. 4 Q If there are photographs, would the s photographs delineate where the biopsies were taken 6 from? 7 A Usually you photograph it before you e biopsy it. Otherwise, it's bleeding and you don't get 9 a good picture. 10 Q Could you give an estimate as to the 11 percentage of the entire mass that would have been 12 taken for biopsy by the five pieces? 13 A I can tell you that I took random samples 14 from different areas. If the mass were that big,1 15 probably sampled, my guess is 10 percent or less 16 randomly of it. That is just a guess. 17 Q Is it accurate to say that the only way 18 that one can diagnose colon cancer is by use of a 19 microscope? 20 A No. I think that probably a surgeon could 21 do it by looking at it at the time of surgery, could 22 have a fairly good idea that it was malignant. 23 Q I guess what I am getting at is, in order 24 to rule out cancer you have to see the entire -- all of 25 the tissue in the mass, correct? APEX Reporting Service 33 1 A Correct. 2 Q Isn't it accurate that you can't rule out 3 cancer by taking biopsy specimens? 4 A You can't totally rule it out. So what s becomes important is the pathologic diagnosis and the 6 clinical setting of how you proceed. 7 Q Can you say as you sit here today that you 6 are confident that there was no cancer in the polyp 9 that you observed in 1997? 10 A I would say that I cannot totally exclude ii the possibility that there was cancer in that. 12 Q The biopsies that were taken were 13 determined to be tubular adenomas; is that correct? 14 A Correct. is Q Do tubular adenomas have the potential to 16 become malignant? 17 A They have, as compared to hyperplastic 18 polyps, they have increased malignant potential but not 19 high on the spectrum compared to other types of polyps. 20 Q Was it not the standard of care in 1997 to 21 take out, remove, or obliterate an entire polyp of this 22 size? 23 A I would say if one had the capability with 24 the colonoscope to remove it, you would. If because of 2.5 the condition of poor visualization -- in biopsies, it APEX Reporting Service 34 i really did not suggest a near malignancy, and since 2 polyps are slow growing and he was asymptomatic, it 3 would not be unreasonable to follow the patient with 4 colonoscoples. s You don't take out every tubular adenoma 6 that you cannot remove with a colonoscope. It is not 7 the standard. It was not then. It is not now. e Q Is it accurate to say that adenomas, if I 9 am pronouncing it correctly, of over 2 1/2 to 3 io centimeters has a greater than 50 percent chance of ii developing into cancer? 12 A I would say that if what was really 13 present was that, the larger the mass, the higher the 14 malignant potential. But again, it was poorly is visualized and its biopsy characteristics suggest that 16 it was benign and not near malignant. 17 Q Is a tubular adenoma something that is on 18 -- first of all, is there something in the field known 19 as an adenomacarcinoma sequence? 20 A Yes. 21 Q Is a tubular adenoma something that falls 22 along that pathway? 23 A It's probably the beginning of that 4 pathway. 5 Q How is colon cancer staged? APEX Reporting Service 35 1 A Colon cancer is staged according to its z degree of invasiveness once it's diagnosed, whether 3 it's through the wall of the colon, into the liver, 9 things like that. 5 Q Can you stage a particular lesion without 6 removing it? 7 A The best way to stage a lesion is to e remove it, though the question is whether you stage 9 every benign lesion and you need to remove every benign 10 lesion, and the standard of care is not to remove every 11 benign lesion surgically. There are so many other 12 circumstances that make one want to remove one 13 Surgically. 19 Q Was Mr. Loy generally in good health in 15 1997? 16 A Yes, he was. 17 Q He didn't have any heart disease or lung 1e disease that would be a contraindication for surgery? 19 MR. ELLIS: Let me object to the form of 20 the question because I am not sure that this physician 21 would have done a full examination. 22 BY MR. FOSTER: 23 Q To your knowledge in 1997, were there any 24 contradictions to him having surgery? 25 A I would say that we monitored his heart APEX Reporting Service 36 1 rate during the procedure, and he had PVCs which I 2 noted on the chart which would suggest that he could 3 have some form of coronary artery disease based on the 4 unifocal PVCs on the report. 5 I am not a cardiologist. It raises a red 6 flag. He did not have symptoms of heart disease 7 otherwise during the procedure. e Q Did what you just pointed out play a part 9 in any decision you may have made not to refer him, for lo example, to a surgeon? 11 A I would say the criteria I used, that may 12 have had a minor role, but probably wasn't the major 13 role. It may have been a tiny part of it. 19 Q Are there any other ways that the polyp 15 that you viewed in 1997 could have been removed? 16 Well, why don't you list the various ways 17 that potentially it could be removed. 18 A What I would say, because the 19 visualization was not good, before I would even 20 consider removing it you would want to have another way 21 of documenting that it was there and it was that size, 22 and then based on that additional piece of information, 2 3 you would make a clinical decision about removing it. 24 Q Go ahead. 25 A I would say, unfortunately the gold APEX Reporting Service 37 1 standard to visualize polyps is the colonoscopy, and in 2 a patient with a poor prep, a barium enema which could 3 have been an alternative way of visualizing it would a probably not have visualized it well because he was not s completely prep'd. He would have stool there. 6 So there was no other gold standard to 7 give me that additional information. e Q Wouldn't it have been appropriate to 9 reprep him and repeat the colonoscopy at that time? o A I was depending on what I felt were 1 adequate -- five adequate biopsies that were randomly 2 taken from different parts of the polyp, and frequently 3 if it's a near malignant or malignant polyp you will 4 find that, and there was nothing to suggest that it was 5 near malignant on my biopsies. 6 So it was felt that instead of a three- or five-year colonoscopy, I would intensify my review by s doing a yearly colonoscopy. That was my way of 9 following it. o Q What is the time period it takes for 1 cancer to develop in the colon? 2 A It's different in different individuals. 3 Normally a polyp may develop into a cancer in a 9 relatively long period of time. In years it may take, 5 but some polyps, depending on their growth APEX Reporting Service 38 1 characteristics, can turn into a malignancy relatively 2 quickly. 3 I would say in general they are slow 4 growing though, very slow growing. 5 Q When you talk in terms of years, can you 6 quantify that for me? 7 A I can't say for sure. I would say that it e probably takes five or more years for a polyp to grow 9 into a cancer. 10 Q Isn't it wise to remove polyps, 11 particularly those that are adenomas, at the outset so 12 that the opportunity for them to develop into cancer is 13 eliminated or removed? 19 A It is wise, and that is our goal every 15 time we do colonoscopy. 16 But, again, since they are slow growing, 17 and if the biopsies do not show near malignancy, it is 18 generally safe, especially in someone without symptoms 19 in which the biopsies did not show a malignancy to do a 20 colonoscopy one year later. 21 Q Was it possible to remove, and I am 22 talking in 1997, the particular polyp that you observed 23 during the course of the colonoscopy? A No. Q Why is that? APEX Reporting Service • 39 1 A For several reasons. With the amourlt of 2 stool that was there, I could not totally visualize it 3 to put a loop around it to remove it and use cautery. 4 If you can't see exactly the landmarks of where you are s looping to apply cautery, you can't do it. 6 In addition, the configuration of his colon was somewhat unusual in that there was a lot of a looping and up and down of his colon that was not a 9 straight colon. to So it would have been difficult to hold 11 the colonoscope there long enough to visualize and 12 remove the polyp. 13 Q Do you ever make referrals of patients to 14 other specialists in your field who are recognized as 15 being particularly adept at difficult polyp removal? 16 A There is some circumstances where we might 17 consider doing that. 18 Q Who in the area would you make such a 19 referral if you were going to in a given case? 20 A I think years ago we would use Dr. Frank 21 Jackson who is now retired in Camp Hill. There are 22 perhaps some gastroenterologists in Hershey that might 23 be able to do it. 24 In the 80's a lot of times we would send 25 patients to New York City to people who would do it all APEX Reporting Service 40 1 of the time. 2 Q Any reason why you didn't consider that 3 alternative in this case? 4 A Because the patient had no symptoms and he s had a polyp that was not new malignant. So it was 6 assumed that it was slow growing. 7 There was no blood in his stool. He was e not anemic, and thus, normally you can repeat the 9 colonoscopy in a year, reevaluate it, rebiopsy it, and 1o for the most part it hasn't grown dramatically in one 11 year and you can still make that decision for surgery 12 or sending him to another gastroenterologist who might 13 be able to remove it. 14 Q You can be confident then that a mass of a 15 size that you visualized in 1997 does not contain 16 cancer on the basis of the five spot biopsies that 17 turned out to be tubular adenomas? 18 A One can never be 100 percent certain, but 19 I can say that it was a difficult colonoscopy, and it 20 was poor visualization. 21 So if I had had a good prep and really 22 good visualization, it would have been easier to make 23 that determination. 24 So it was difficult based on those 2 s circumstances in an asymptomatic individual. APEX Reporting Service 41 1 I would just point out one more thing is 2 that you are asymptomatic with small polyps, but with 3 large -- or malignancies or near malignancies you 4 probably would have some symptoms of anemia or blood in s the stool, and he didn't have those. 6 So we have to kind of stratify 7 asymptomatic small polyps versus the possibility of a large near malignant polyps. 9 Q So in this instance you are saying that o because the polyp was large, in your view it actually 1 militated against it being cancerous as opposed to an 2 increased risk of cancer? 3 A No. As part of my decision making, if 4 truly what I saw was a large polyp that was near s malignant, most individuals would have anemia, blood in 6 the stool, possibly abdominal pain, possibly change in 7 bowel function, none of which he had. a So my decision making is just not what I 9 see transiently on a colonoscope. It's the whole o clinical picture, and the rest of the clinical picture 1 did not support the fact that he most likely had a 2 colon cancer at that time. 3 Q Do all colon polyps or cancer produce, for 4 example, hemoccult positive stools? s A No, but ones in the right colon are more APEX Reporting Service 42 1 likely to do it and cause anemia. 2 Q Let's turn to the next colonoscopy in 3 1998. 4 A Okay. s Q Was this colonoscopy also poorly 6 visualized? 7 A I mentioned that there was the same liquid a and semi-particulate matter present that may have 9 obscured good visualization, and that he also had the 1 o same looping because of the anatomy of his colon. 11 Again, that would have made visualization less than 12 satisfactory. 13 Q Would you characterize, because of the 14 liquid and semi-particulate matter that you saw, would is you characterize this as another one of being poor 16 prep? 17 A Yeah, I would say so. 16 Q What do you feel should be done in those 19 instances where there is what appears to be poor prep? 20 A In my clinical experience, once a poor 21 prep, usually a poor prep. If someone once can't drink 22 a bad tasting laxative, you give them two days of a bad 23 tasting laxative and they will still have difficulty 24 drinking it. Its not always easy to prep them. 25 But again, my visualization was not good APEX Reporting Service r 11 43 i there. So I took the extra precaution of checking a 2 blood count and three stool hemoccults which I just had 3 mentioned are more likely to suggest that there could 4 be a malignancy or near malignancy because they are s usually either anemic or traces of blood in the stool. 6 Q Again, there could be a CBC that is 7 completely normal and does not rule out malignancy, e correct? 9 A Correct. 10 Q You could have negative hemoccults that 11 does not rule out a malignancy; is that correct? 12 A Correct, but if we are talking about a 13 potentially large mass that I initially saw, more times 14 than not that would produce either an anemia or blood 1s in the stool. 16 Q Now, you talk about -- let's go back to 17 the prep. First of all, when we talk about prep, the 1 e patient is told to take some laxatives and drink 19 liquids and not eat food for the day or so proceeding 20 the examination to clear out the colon. 21 A That's correct. 22 Q Did Mr. Loy at anytime tell you he had not 23 followed the instructions given by your office with 24 regard to preparation? 25 A He did not tell me he didn't, but most APEX Reporting Service 44 1 people that have poor preps don't tell me they didn't 2 follow it. They would be embarrassed to tell me they 3 didn't follow it. They would just show up for the 4 colonoscopy. s Q Did you have a discussion with him about 6 the necessity of having a sufficient prep so that the visualization would be clear? a A I cannot recall at that time since it was 9 so far back. 10 Q If the visualization is not clear because 11 of poor prep -- 12 A Right. 13 Q Now, whether or not it's because of 14 failure to follow the instructions by the patient or 15 for other reasons -- 16 A Right. 17 Q -- isn't that something that would cause 1 a you to question the validity of your visualization? 19 Doesn't it impair your visualization that you are there 20 for? 21 A It did the first time and that is why I 22 couldn't be sure what I saw. 23 On this one, if you used the same 24 standard, what I thought I saw before I could not 25 confirm. It was even less likely that there was a mass APEX Reporting Service 45 1 on the second colonoscopy. 2 What I mentioned here was that the 3 polypoid mucosa abnormality of the ascending colon was 4 not seen despite taking several careful looks in and s out of that area. I could not confirm it. 6 So I actually, despite the prep being 7 suboptimal, I took more individual attention to look at a that area and I could not confirm it at that time. 9 Q How can you explain that you could not see to the polyp in 1998 that you did see in 1997? 11 A I think there was several explanations. 12 One would be what I felt was a big polyp initially may 13 not have been as big, but I didn't see it well. That 14 is possible. is On occasion polyps if they are on a stalk, 16 may or may not. I didn't think it was on a stalk, but 17 if it were on a stalk, sometimes they can autoamputate. 18 That is another possibility. 19 Q Well, going back to 1997, you estimated at 20 that time that the polyp that you visualized was 21 4 1/2 centimeters in length, correct? 22 A Uh-huh. 23 Q You indicated that you took actual biopsy 24 specimens from different areas along the surface of 25 the -- APEX Reporting Service 46 1 A That's correct. 2 Q -- of that mass. 3 A That's correct. 4 Q So it was there, correct? I mean, you s can't say that it wasn't there or that it -- 6 A Right. I would say that it definitely was 7 there. It doesn't validate or invalidate the size, e that I took five biopsies. It just says there was 9 something there that I biopsied, and one year later 10 with even more careful inspection I didn't see it. 11 So which one do you believe? That's the 12 question. I even inspected it more carefully the next 13 year. 14 Q So after those two colonoscopies, is it 15 fair to say you didn't have a great deal of confidence 16 one way or the other? 17 A I would say I still was concerned enough 18 to consider doing the CBC or blood count and the stool 19 hemoccults, and that 1 was concerned enough to put him 20 through a yearly surveillance colonoscopy or to put him 21 on a more frequent colonoscopy regimen. 22 Q Did you order the hemoccult yourself? 23 A I sent a message to his primary care 24 doctor who I believe was the one that ordered that. 25 They were negative, by the way. APEX Reporting Service 47 1 Q Let's turn to the colonoscopy in 2000. 2 What did you observe on that colonoscopy? 3 A Again, it was a very twisted tortuous 4 colon, that I had to lay the patient in multiple s positions to get good visualization. 6 This time what I visualized would be a 7 much smaller sessile polyp, possibly the same one or s maybe one near the other one that I had seen 9 previously. io Q You characterized it in your note m 2000 that the polyp that you observed was relatively good 12 size; is that correct? 13 A Good size, but half the size of the one 14 that I thought I visualized in 1997. is Q You estimated between 1 centimeter and 1 16 1/2 centimeters. 17 A Right, which would reduce its malignant i e potential of that size. 19 Q Was that determined to be a tubular 2o adenoma? 21 A Right. I did take several large biopsies, 22 larger -- I tried to take larger biopsies, and despite 23 taking larger biopsies, the -- if I can find it -- was 24 a tubular -- again, it had not progressed in that 2.5 sequence towards malignancy if that were the same one. APEX Reporting Service 48 i It had not. 2 Q But now you have evidence that there was a 3 tubular adenoma which is something that does have 4 malignant potential that had been residing in the colon s for at least two years. 6 A Right. It appeared smaller and it had not 7 progressed in premalignant characteristics from 8 previous times. 9 Q The pathology report again characterizes i o the biopsies that you took had evidence of being two 11 tiny pieces of tissue. 12 A Right. What is tiny to them may be normal 13 or large to us. 14 Q What is the significance of it being flat, is flat sessile polyp, as you characterized it? 16 A Again, flat or sessile, depending on the 17 size and biopsy characteristics has a slight increased 18 incidence of malignancy. 19 Q You felt that it probably was the same 20 polyp that you saw two years before. 21 A That was my feeling. I couldn't be 22 certain, but that was my feeling. 23 Q Was there any reason that you did not 24 choose to remove that polyp in 2000? 25 A My thinking was that since it appeared APEX Reporting Service 49 1 smaller than I had previously estimated, and because it 2 had not progressed in a premalignant potential from 3 previously, that I would increase my surveillance 4 colonoscopies and do one in one year. s I had done one in 1998, then 2000, and I 6 felt that I should intensify the look and I would do 7 one in one year. e So, again, that was because of my concern. 9 Q Again, wouldn't the best course have been i o to fully remove it? 11 A My feeling, if I had better visualization 12 and decent biopsies, that it appeared smaller and 13 benign than it had been previously. That tells me that 14 it's growth characteristics were not much at all, and is that I could safely do a colonoscopy in one more year, 16 and at that time I mentioned that it appeared benign in 17 my 2000 colonoscopy report. 18 Q That was before the pathology results were 9 obtained. o A And after too. It was benign. i Q Again, a tubular adenoma, though 2 technically benign, does carry with it a malignant 3 potential; is that correct? 4 A Right, but it's not extremely high s compared to other types of colon polyps. APEX Reporting Service 50 i Q Are you confident that the biopsies that 2 you took in that instance could rule out any malignant 3 tissue within that polyp? 4 A No one can ever be 100 percent confident. s Again, it appeared smaller and not to have grown, and 6 so it was my clinical feeling that it was growing 7 slowly and we could observe it and do an intensified e colonoscopy in one year. 9 Q Again, in this particular study in 2001 -- io I'm sorry -- we are on 2000 -- would you characterize ii the prep in 2000 as being sufficient? 12 A It was not good again. 13 Q In 2001 you repeated the colonoscopy? 14 A Yes, I did. is Q Again, was there an issue with poor 16 preparation? 17 A There was actually an extreme amount of 18 stool, more so than previously, and there was much 19 looping. 20 Q What were you able to ascertain from that 21 study? 22 A There was no obstructing malignancy, and I 23 said I could not totally exclude smaller polyps. 24 Q Could you exclude the existence of the 25 polyps that you had seen in 1997 and in 2000? APEX Reporting Service 51 1 . A I felt that I could exclude very large 2 polyps, but I could not exclude medium and smaller 3 polyps based on the prep. 4 Q You had characterized the one in 1997 as s being a very large one, correct? 6 A Correct. 7 Q How would you characterize the one in a 2000? Is that large or medium? 9 A Medium. I would say medium. 10 Q Are you saying you could not exclude the ii presence of that polyp or one that size based upon 12 the -- 13 A Right. I could not totally exclude it at 14 that time. is Q Again, would it not have been better to 16 tell the patient to repeat the preparation process and 17 have an immediate recolonoscopy? 1e A Well, before I answer, I would just say 19 that every time in every patient that I see a poor 20 prep, I tell them after the procedure is over that the 21 prep is poor or not totally adequate, and I usually do 22 give verbal suggestions on going over the prep or being 23 on liquids an extra day or something to make the next 24 one better. 25 So there would be nothing in writing, but APEX Reporting Service 52 2 I would say that I've, after each procedure, I have 2 told the patient that the prep was suboptimal and given 3 suggestions on how to prep the next time. 4 But what I did do in 2001 is give a very s specific double prep hoping that he was able to take it 6 so that when we next did a colonoscopy, again, I 7 believe in one year, that I would have a better e visualization. 9 Q Is it accurate to say that the only time lo you actually characterized in your reports that the 11 prep was poor was in this 2001 colonoscopy report? 12 A I may not have always used the word poor 13 prep, but in every report I have said that it's -- 14 there is a lot of semiparticulate matter which means 15 that it's a poor prep, but I just didn't happen to use 16 the word poor. 17 Q That is the only one in 2001 in which you 1 e discuss the specifics of the prep that you would like 19 the patient to undertake for the next colonoscopy? 20 A Right. It was the only time that I 22 formalized up to that point a more extensive prep. 22 Q Is it accurate to say that in 2001 the 23 colonoscopy that you gave was not helpful to you 24 in determining whether or not there was any polyps in 25 the colon? APEX Reporting Service 53 A What I would say was that it was very 2 helpful in ruling out an obstructing cancer which is 3 the ultimate goal of colonoscopies, to make sure that 4 the patient does not have obstructing cancer. s I could not have continued passing the 6 scope if there was obstructing cancer. So in some ways 7 it was helpful in ruling that out, but again, as I B mentioned here, I could not rule out medium or smaller 9 polyps. 10 Q First of all, with respect to an ii obstructing cancer, would that not result in symptoms 12 in the patient? 13 A It again depends on whether the patient 14 was 100 percent, 80 percent obstructed. If you are 15 100 percent he would have symptoms, but if it were 60 16 to 80 percent it would have limited the passage of the 17 scope, but he may not have had symptoms. 1e Q Was there any reason why you didn't choose 19 to repeat the colonoscopy in 2001 immediately as 20 opposed to wait a year? 21 A My clinical sense over time was what was 22 initially thought to be a larger polyp was smaller the 23 next time I saw it, had benign characteristics on 24 biopsy. So I did not feel that I would rush into APEX Reporting Service 54 1 another procedure when prior to 2001 he had had 2 multiple colonoscopies, and in fact the appearance was 3 even improved from the very first time. 4 So I felt, again, we had the luxury of s waiting one year with a more intensified prep. 6 Q Is 2001 the year in particular that you 7 could not say that you reached the cecum? e A Let me check here. I have to read my 9 report. 10 I could not say with certainty, right. 11 Q So therefore you were not able to 12 determine in fact if you had an opportunity to 13 visualize the entire colon? 14 A Right, but I felt I had visualized to 15 90 to 95 percent, and that I had passed the scope to 16 the area of concern previously. 17 Q In 2002 we now have actual photographs in 18 your reports. 19 A Right. 20 Q You have a colon diagram that indicates 21 where the photographs were taken; is that correct? 22 A That's correct. 23 Q You did find in 2002 three small sessile 24 polyps; is that correct? 25 A That's correct. APEX Reporting Service .1 55 1 Q Were any of those polyps -- I'm sorry -- z I'm not sure if there were three or four biopsies. 3 A There was one in the ascending colon, one 9 in the transverse colon, and one in the hepatic s flexure. 6 Q Now, these polyps were in fact removed, 7 correct? A The one -- let me look again. It looks like the one at the end of the transverse colon 1o resection was incomplete. 11 Q All right. 12 A That means they biopsied it. 13 Q Is that the one that was determined on 19 pathology to be a tubular adenoma? 15 A Let me check my biopsy report here. 16 2002, that was a tubular adenoma, correct. 17 Q That is the one that was not fully 1e removed? 19 A That's correct. I would say the picture 20 does not appear to show malignancy there either. 21 Q But we have now over a course of five 22 years up to this point tubular adenomas within 2 3 Mr. Loy's colon, none of which were removed, correct? 24 A That's correct. 25 Q All of which have malignant potential. APEX Reporting Service 56 1 A Right, but looking at it the other way, 2 I would say my best look yet was in 2000. I took ten 3 biopsies, which was the most biopsies I have ever taken 9 with my best look. It was much smaller than the 1997 s estimate. 6 Q Is this 2002 or 2003? 7 A 2002. e Q You took ten biopsies? 9 A I took ten biopsies. I took the most 1o biopsies with the best look, and again, it was smaller. 11 It did not visually look malignant. Biopsies did not 12 suggest that it's near malignant. 13 Q Now, show me where you are saying ten 19 biopsies, because I am looking at it and it says four. 15 A No. C, which is the proximal transverse 16 colon polyp consists of ten tiny pieces, two of which 17 appear to be some blood. 18 Q Those are the ten pieces that were 19 determined to be tubular adenomas. 20 A That's correct. So I think the pattern is 21 emerging that I am concerned about it, that I am taking 22 more biopsies, that I am cleaning him out more fully 23 every time I look because of my heightened concern. 29 Q Now, was there any question about 25 preparation with respect to the 2002 examination? APEX Reporting Service 57 1 A I said the quality of the prep was good. z That was the best prep. 3 Q This was the year after you noted poor 4 prep and gave the patient specific information with s regard to double prep'ing? 6 A That's correct. 7 Q So apparently he is following your e instructions. 9 A Right. o Q 2003, did you repeat the colonoscopy 1 again? 12 A Yes, 6/30/2003. 13 Q What did you find there? 19 A I found several small polyps, one in the 15 ascending colon which was hyperplastic which means no 16 malignant potential, and then I found one at the area 17 of the hepatic flexure which I felt was the one that we 1e had been focusing on all of the time, and I did take a i g photograph of that area and the biopsy did not even 20 show polypoid tissue. 21 Q Well, can you explain where the sessile 22 polyp that you observed in 2000 would have gone as of 23 the 2003 examination? 29 A What I would say is with my best two preps z s and my best two colonoscopies I could not confirm what APEX Reporting Service 58 1 I thought I saw on the worst prep'd colons earlier. 2 So instead of seeing something that was 3 progressively getting worse each year, as I was 4 visualizing better I was seeing something smaller and s benign which lead me to suggest that maybe what I saw 6 earlier was over represented in my interpretation. 7 Q But you actually on the ones you did see e earlier you took many biopsies and they confirmed 9 tubular adenomas. 10 A Tubular adenoma, that's correct. So I 11 would say that I am sure there was a tubular adenoma 12 there. The question is whether it was a stalked 13 tubular adenoma that somehow came off, whether I 19 biopsied it enough, that I removed most of the tissue. 15 I wasn't certain, but the only thing one can be certain 16 of is kind of what you see and that is what I saw. 17 Q Now, there was an endoscopy upper GI that ie was performed in 2005 by Dr. Berk. Did you in any way 19 participate in that? 20 A No. I was unaware of that. 21 Q Did you consult with Dr. Berk about that 2 procedure? 3 A I don't recall. I would have to look, but 9 I don't remember having consulted with him on that s procedure. APEX Reporting Service LJO 59 Q There was another colonoscopy done finally in December of 2005 again by Dr. Berk. 3 A Correct. 4 Q Did you consult with Dr. Berk in that 5 instance? 6 A I believe after the fact he told me that 7 he had determined by colonoscopy there was a malignancy e there. 9 Q In your discussions with him, did you io determine or did you reach a conclusion whether or not ii the malignancy that he actually found in that 12 ColonosCOpy -- 13 MR. ELLIS: Do you need the report? 19 THE WITNESS: I just had it. I am trying 15 to find it. Here it is. 16 BY MR. FOSTER: 17 Q In your discussions with Dr. Berk about ie the 2005 colonoscopy, did you reach any conclusion as 9 to whether or not what he found then, the malignancy 20 that he in fact found, may have originated from the 21 masses that you had observed in your earlier 22 colonoscopies? 23 A Well, he said it was probably in the 24 transverse colon, and he identified an area in the 2 5 proximal transverse colon where it was identified. APEX Reporting Service 60 i MR. ELLIS: He is asking you about 2 conversations, Doctor. Did you have arty conversations 3 with him about whether or not this was the same? 9 THE WITNESS: All I can remember him 5 saying is he found a malignancy, and he told me that 6 because I had done prior colonoscopies and did not find 7 a malignancy, but I can't remember the specifics of e where he said -- other than looking at his drawing, 9 I can't remember having a verbal conversation with io Dr. Berk about the location. u BY MR. FOSTER: 12 Q Did you consult with Dr. Berk at all about 13 the prior findings in the colonoscopies? 14 A At which time? After he completed this 15 colonoscopy? 16 Q Well, first during the course of the 17 treatment over the years when you had performed the ie colonoscopies on Mr. Loy, would you typically discuss 19 your findings with Dr. Berk? 20 A No, I don't believe so. We wouldn't 21 unless there was some exceptional reason to do it. 22 Q Now going back to after he made his 2 3 findings, did you go over with him what you had found 24 on the prior scopes and reach any conclusions about 25 what was found in those prior exams? APEX Reporting Service 61 i A I can't recall specific conversation, but 2 I do remember him telling me that he found a colon 3 cancer in the proximal colon, and he indicated that he 9 was aware that I had looked by colonoscopy several 5 times previously. That is all I can recall from that 6 conversation. 7 Q Did he offer any criticism of your e decisions with regard to the findings in the prior 9 colonoscopies? io A I don't believe he did. ii MR. FOSTER: Let me take a five-minute 2 break. 3 (A brief recess was taken.) 9 BY MR. FOSTER: 5 Q Are you familiar with Duke's 6 classification? 7 A Yes. e Q What is it? 9 A It's a way of classifying the colon o cancers as far as their extent and invasiveness and 1 then their potential resectability for cure versus 2 treatment with chemotherapy. 3 Q Does that only apply to masses that have 4 actually been determined to be cancerous? 5 A I've only used it with that. l have never APEX Reporting Service 62 i used it with a benign lesion. 2 Q How can one go about staging a particular 3 mass? 4 Let me put it this way. Do you have to 5 actually remove the mass in order to stage it? 6 MR. ELLIS: Are you assuming it's cancer? 7 BYMR. FOSTER: e Q Well, remove a mass, period, to determine 9 where it may fall if at all along the staging process. io A Right. You would not stage a benign 11 lesion you removed. So if you removed a lesion and it 12 was later determined to be malignant, the best way to 13 stage it would be having the surgical specimen, but 14 also a combination of CAT scan, PET scan, sometimes an 15 endoscopic ultrasound would give you the total extent 6 of the tumor -- of the malignancy. 17 Q So you can stage it without removing it or i e does it require removal? 19 A You are specifically talking about a colon 20 mass that turns out to be malignant or any -- there are 21 ways of staging other GI malignancy. 22 Q Colon mass? 23 A Colon mass? 24 Q Right. 25 A I think the only way to totally stage a APEX Reporting Service 4 w 63 1 mass that has later been determined to be malignant 2 would be to surgically remove it. 3 Q Do you agree with the general proposition 4 that most if not all colon cancers originate within s previously benign adenomas? 6 A I think that is commonly accepted by all 7 gastroenterologists, that's correct. s Q A tubular adenoma is an example of a 9 previously benign adenoma, correct? 10 A A tubular adenoma is a benign polyp, 11 ri ght. 12 Q Have you discussed this case with anyone 13 else other than your attorney or your wife? 14 A No. 15 Q Have you had any contact with Robert Loy 16 since this litigation began? 17 A No, I haven't. 18 Q Have you had any discussions with Robert 19 Loy or his wife concerning the merits of this case 20 since he was diagnosed with cancer? 21 A No, I haven't. 22 Q Do you remember any particular 23 conversations that you had with Robert Loy or his wife 24 as you sit here today? 25 A At anytime during my contact with him? APEX Reporting Service 64 1 Q Correct. 2 A I can remember on the first colonoscopy in 3 1997 telling him I did not have a complete 4 visualization. I was concerned that it could be new s malignant or malignant, and that I wanted to more 6 intensively do colonoscopies to keep a close eye on it. 7 That is the only conversation that I can e remember. 9 Q Throughout your contact with him in your 1o doctor/patient relationship, was he a compliant patient 11 with your requests? 12 A I felt he was a very compliant patient, 13 very easy to deal with. 14 Q You don't remember any particular 15 conversations with his wife? 16 A Actually, I don't. I more saw him than 17 her. So I can't recall specific conversations with 1e her. 19 Q Didn't know him or his wife independent of 20 your doctor/patient relationship? 21 A I don't believe so. I don't believe so. 22 Q As you sit here today, can you visualize 23 his appearance as an individual? 24 A Not specifically really. I can't. 25 MR. FOSTER: That is all I have. Thank APEX Reporting Service 65 1 you very much. 2 (The deposition was concluded at 11:53 a.m.) 3 # * # s 6 7 9 0 15 16 17 18 19 20 21 22 23 24 25 APEX Reporting Service 66 1 CERTIFICATE 2 3 I, Sharon L. Dougherty, a Notary Public for the 4 Commonwealth of Pennsylvania, do hereby certify: 5 That the witness named in the deposition, prior 6 to being examined, was by me first duly sworn or 7 affirmed; 6 That said deposition was taken before me at the 9 time and place herein set forth, and was taken down by o me in stenotype and thereafter transcribed under my 1 direction and supervision; 2 That said deposition is a true record of the 3 testimony given by the witness and of all objections 4 made at the time of the examination. s I further certify that I am neither counsel for 6 nor related to any partyJ ?/Aaid action, m y way 7 interested in the outco&thereof. 'Id 9 0 3 s APEX Reporting Service 4 • ALL-STATE LEGAL 500-222-0510 E011 RECYGLEO fxk`bi-4 E u ,r?u v Henry S. Crist, M.D. Director of Laboratories r? ?i p__ D.K. Chang, M.D. C h,(;+se 1 )S Associate Pathologist Dept of Pathobgyl 1V?7?J?irQ? Margaret M. Flanagan, MX 246 Parker St., Carlisle, PA 1,'013-0310 Surgical Pathology Report Associate Pathologist 036803 Robert D. LOY LEWIS (Marakowski) 47 yrs. (2-12-49) 1-22-97 RD#2, Box 61 500-97 Loysville, PA (OPS) CLINICAL DATA: Male with family history of colonic polyps SPEC33m: Hot Biopsies of Sessile Mass of Ascending Colon GROSS: The specimen, received in formalin, consists of five tiny pieces of tissue which are submitted in one cassette. VG/vgh 1/22/97 MICROSCOPIC: Performed. DIAGNOSIS: Biopsies, Ascending Colon: Tubular Adenoma 1 C? cs? . G HSC/srf? January 23, 1997 (' 40!Vd? Hen S. Crist, M.D. PATHOLOGIST ?r f x L? L) ? r f 4 • MEDICAL EXPERT REPORT June 12, 2007 Leigh A.J. Ellis, Esquire 2010 Market Street Camp Hill, PA 17011 RE: ROBERT D. LOY Dear Attorney Ellis: Thank you for asking me to review medical records on Robert Loy. I am board certified by the American Board of Internal Medicine in both internal medicine and gastroenterology. I am a licensed physician in Pennsylvania and in full time practice as a gastroenterologist.. I have reviewed the records pertaining to Robert D. Loy; the records from Carlisle Digestive Disease Associates, LTD, Bryant General Surgery, Geisinger Health System, Roland R. Alexander, East Shore Oncology, Walnut Bottom .Radiology. The records from Tristan Assocaites are also reviewed. Additionally, I have reviewed the deposition transcripts you provided. BRIEF REVIEW OF CASE HISTORY Mr. Robert Loy had come to Dr. Gregory Lewis on 1/22/1997 for performance of his first health screening colonoscopy. He was 47-years-old at the time. His father had colon polyps removed at around the age of 50. The procedure revealed a sessile narrow nodular lesion measuring approximately 4 to 5 centimeters in length and 1 to 2 centimeters in width and it was attached to a fold. Multiple hot biopsies were obtained. Dr. Lewis made the point that if the polyp was malignant or showed dysplasia it would need to be surgically removed. If it was a benign adenoma, he recommended surveillance one year later. The polyp was a benign adenoma and for that reason colonoscopy was repeated one year later. On 1/30/1998, colonoscopy was normal to the cecum but it was pointed out that there was some stool present in the colon which could have been obscuring. He recommended CBC and three stool Hemoccults and planned to do a barium enema for better visualization of the colon if there was evidence of blood in the stool. On 12/1411999, a letter was mailed to Dr. Marakowski requesting that he contact the patient to return for follow-up surveillance colonoscopy. There was also a handwritten note on that letter stating that someone had talked to the wife and she would have the procedure scheduled. It was, indeed, scheduled and performed on 3/22/2000 and at that time the only abnormality noted was a 1 to 1.5 centimeter flat sessile nodular polyp in the proximal transverse colon near the hepatic flexure. There was a lot of looping due to a tortuous sigmoid colon. It was difficult to know exactly where the scope was when the polyp was found. However, Dr. Lewis felt that the polyp was probably the same polyp he had seen two f 4!0' • years previously. Dr. Lewis noted that it looked to be benign but he took several large hot biopsies. He made the point that if the polyp was dysplastic or had a villous component, he would recommend surgical excision because of its difficult position. Colonoscopy was repeated on 6/30/2003 by Dr. Lewis. This time the preparation was said to be good. A very small, less than 1 millimeter, polyp was found in the ascending colon and removed. Another similar polyp was found in the hepatic flexure and removed. No mention was made of the larger lesion that had been seen on the previous colonoscopy. On July 29, 2005, the patient was seen by Michelle DeLeon, CRNP in Dr. Lewis' office. The patient had been experiencing rectal bleeding for two days. Hemoccult testing was positive. The patient was seen by Dr. Berk and upper endoscopy was scheduled for the following week. The patient had been taking aspirin at the time. Upper endoscopy was performed on August 4, 2005 by Dr. Theodore Berk. No abnormalities were identified. A CBC was requested and the patient was told that if he had recurrent gross bleeding, repeat colonoscopy should be done. The result of the CBC performed on August 22, 2005 was that the patient was not anemic. The patient was seen in the Carlisle Regional Medical Center on December 3, 2005. He was apparently having rectal pain and bleeding at the time. A CBC was normal. He was referred to Dr. Lewis' office and was seen on December 7, 2005 by Dr. Berk who performed a colonoscopy on that date. A partially obstructing malignant mass was found in what was felt to be the transverse colon. Biopsies were consistent with malignant tumor. Other studies revealed evidence of hepatic and pulmonary metastases. The patient underwent a right hemicolectomy with wedge biopsy of the liver, omentectomy, and exploratory laparotomy. The patient was found to have wide spread metastases at that time- The patient has subsequently undergone chemoradiotherapy. QUALITY OF CARE Robert Loy was first seen by Dr. Lewis in consultation concerning the need for colonoscopy. Appropriate concern was shown for the fact that he did have a family history of colon polyps. Also, at the age of 47 he was nearing the age for recommended screening colonoscopy. For that reason, appropriate screening colonoscopy was performed. As previously mentioned, a fairly large polyp was discovered. Because of its broad expanse, it did not appear to be amenable to polypectomy but multiple biopsies were taken to make sure that this was not malignant. Five subsequent colonoscopies were performed over the next six years. Two of these colonoscopies, including the one done in 1998 and the one in 2001 were compromised by poor preparation. Office notes indicate that Dr. Lewis' office did work with the patient to come up with a preparation that would be improved for the patient. Subsequent colonoscopies done in 2002 and 2003 were said to be good quality preparations. The 2002 colonoscopy revealed a 4 millimeter flat sessile polyp in the transverse colon and a 1 millimeter polyp in the ascending colon. These were removed with hot biopsy forceps. Subsequent pathologies were negative for malignancy. Repeat colonoscopy in 2003 revealed two very small polyps removed with hot biopsy forceps. Photos were obtained from the ascending colon, hepatic flexure, cecum and rectum in 2003 and there was certainly nothing else noted at that time. Unfortunately, in December of 2005, a malignant mass was found in the colon. It was ? V difficult to say exactly where this was but at the time of surgery there was a malignant tumor in the transverse colon. This had already metastasized to multiple lymph nodes, liver and apparently lung. The fact that there was a malignant tumor two years after an essentially negative examination is incontrovertible. The area of controversy is whether or not this could have been identified at the time of colonoscopy in 2002 or sooner or whether it, in fact, would have been possible for any colonoscopist to actually identify this lesion earlier. It is now very well known that there is a substantial miss rate for colon cancer and polyps, even in the best of hands. In one large study in Canada, reviewing data from over 12,000 patients with colorectal cancer who had undergone colonoscopies within three years before their diagnosis, there was a rate of new or missed cancers in 6% of patients on the right side, 5.5% in the transverse colon, 2.1 % in the splenic flexure and descending colon and 2.3% in the rectosigmoid. Dr. Douglas Rex, who is a noted expert on colonoscopy and colon cancer, feels that this study may underestimate the risk of missed lesions. The fact that Dr. Lewis had performed several colonoscopies over a period of years and had identified previous polyps that were not completely removed might be taken to suggest that one of these polyps could have been the original basis for the cancer. However, he was also able to clearly show these areas on subsequent examinations and no visible lesion was present. The standard of care is defined as the degree of prudence and caution required of an individual who is under a duty of care. The requirements of the standard are closely dependent upon circumstances. In this case, the circumstances are determined by the capability of both the examiner and the examining test, which is colonoscopy. If the test has limitations, the person performing the test can only be found to have breached the standard of care if he has not used the test properly. In this case,.,.Dr. Gregory Lewis worked very hard to compensate for the limitations by appropriate frequency of examination and. by working with the patient to try to find better preparation for him. Here he is exercising reasonable caution and prudence that improved the circumstances and thus maximized the effectiveness of the test. The possible failure of this test to identify a precancerous lesion does not equate with a breach of the standard of care. This may have resulted from the somewhat redundant colon that did not permit complete examination or from some other technical problem that could not be overcome by the instrument itself even with a skilled and competent and experienced colonoscopist such as Dr. Lewis. I, therefore, do not feel that Dr. Lewis was negligent in performance of colonoscopy and, in fact, he was quite zealous and cautious in pursuing repeated examinations to be sure that he had not missed anything. I hold all of these opinions to a reaonable degree of medical certainty. Thank you ,for asking me to give my opinion in this particular case. Sincerev'yours, f Jnes ur, D. r f cx?jj-?, G . *?, " Carlisle Hospital and Health Services LOY, ROBERT D. DOB:02/12/1949 AGE 51 YRS M (000)036$03 OPS OPS - DR LEWIS, GREGORY L Surgical Pathol 6gY Repot t ODTPATIENT-S=GERY REPORT (ordering phy: LEWIS, GREGORY L. {attending phy: LEWIS, GREGORY L. Surgery Date: 03/22/00 Received: 03/22/2000 SPECIMEN: Hot Biopsy of Sessile Polyp - Proximal Transverse Colon CLINICAL NOTES: Male with prior colonic tubular adenoma GROSS DESCRIPTION: The specimen, received in formalin, consists of two tiny pieces of tissue which are submitted in one cassette. [HSC/vgh 3/22/00] MICROSCOPIC DESCRIPTION: Performed. DIAGNOSIS: Biopsies of Proximal Transverse Colon:. Tubular Adenoma HSC:vgh HENRYS. CRIST M.D. 03/23100 (electronic signature) Duckkyu Chang, M.D.: Pathoto<, Henry S. Grist. M.D.: Pathologls PRINTED 23MAR00 TIME 1252 ADMITTED 22MAR00 } DISCH 23MA-R00 PAGE I Accession No -Qy- )o F61d Dr br - LLWi3 ? LI,J aq -00 rn,a..a d mcuktJU te?' P1. -1z ov "P? . n + p1accok- U? LA:?) Copies sent to the following offices: SHORT PROCEDURE UNIT LOY, ROBERT D. cl- Y- ) Its, V '?* W Carlisle Regional Medical Center Department of Pathology 246 Parker Street, Carlisle, PA 17013 LOY, ROBERT D. MRN: 0000036803 Ward/Clinic: SP DOB: 02/12/1949 Age: 53 Y Sex: M Attending: LEWIS, GREGORY Requesting: LEWIS, GREGORY Surgical Pathology Report COPY TO: MARAKOWSKI JAMES COPY TO: CARLISLE ENDOSCOPY CENTER SPECIMEN: A. GASTROINTESTINAL POLYP - Ascending colon B. GASTROINTESTINAL POLYP - Hepatic flexure C. GASTROINTESTINAL POLYP - Proximal transverse colon D. GASTROINTESTINAL POLYP - Sigmoid colon Procedure Date: 05/01/2002 Received Date: 05/01/2002 Page 1 of 2 SP-02-3378 CLINICAL NOTES: A) Ascending colon polyp, B) Hepatic flexure polyp, C) Flat polyp of proximal transverse colon, and D) Sigmoid colon polyp Indications: Prior colonic tubular adenoma SPECIMEN DESCRIPTION: GROSS DESCRIPTION: The specimen is received in formalin and arrives in four parts. A) Consists of a tiny piece of tissue, which is entirely submitted in one cassette. B) Consists of four tiny pieces of tissue, which are entirely submitted in one cassette. C) Consists of ten tiny pieces of tissue, two of which appear to be tiny fragments of blood, which are entirely submitted in one cassette. D) Consists of a tiny piece of tissue, which is entirely submitted in one cassette. [HSC/vgh 5/1/02] MICROSCOPIC DESCRIPTION: A,B,C&D) Performed DIAGNOSIS: A\ Biopsy of Ascending Colon Polyp: Hyperplastic Polyp B\ Biopsy of Hepatic Flexure Polyp: Hyperplastic Polyp C\ Biopsy of Proximal Transverse Colon Polyp: Tubular Adenoma D\ Biopsy of Sigmoid Colon Polyp: Hyperplastic Polyp p U-4 Signed Out/Reported Date: o5mn= l -0, HENRY S. GRIST, M.D. (Electronic Signature) LOY, ROBERT D. J SeP-02-3378 Ward/Clinic: SP Printed: 05/02/02 1:38 PM Page 1 of 2 C00311 3 Duckkyu Chang, M.D., Pathologist Henry S. Crist, M.D., Pathologist V f)q • CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of foregoing document was served upon counsel of record this 19th day of September, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 By: FOULKROD ELLIS PROFEISIONAL CORPORATION . A -. c tl,i 'r? a N N ? N w 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, ROBERT LOY AND LINDA LOY, HIS WIFE, (Plaintiffs) V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., (Defendants) NO. 06-3117 1. State matter to be argued: Motion for Partial Summary Judgment of Defendants Regarding Punitive Damages 2. Identify counsel who will argue cases: (a) for plaintiff. David J. Foster, Esquire, CostoWulos, Foster & Fields 831 Market Street P.O.-Box-222, Lemoyne, PA 17043 (b) for defendants: Cindy N. Ellis Esquire Foulkrod Ellis 2010 Market Street Camg Hill PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 21, 2007 September 19, 2007 caa-'- SignatuVe Cindy N. Ellis Print your name Attorney for Defendants, J? CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of foregoing document was served upon counsel of record this 19'` day of September, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 By: FOULKROD ELLIS PROFESSIONAL CORPORATION G ? 23 G?' N ..r PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY ORIGINAL Please list the following case: (Check one) ( x ) for JURY trial at the next term of civil court. ( ) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) ROBERT LOY AND LINDA LOY, HIS WIFE, (x ) Civil Action - Law ( ) Appeal from Arbitration (other) VS. (Plaintiff) GREGORY LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISEE ENDOSCOPY CENTER, LTD. VS. (Defendant) The trial list will be called on fJ n3/08 and Trials commence on 0 2/ 0 4/ 0 Pretrials will be held on 01/16/08 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 3117 Civil 2006 19 Indicate the attorney who will try case for the party who files this praecipe: David J. Foster, Esquire; Leslie M. Fields, Esquire, 831 Market Street, Lemoyne, PA 17043 Indicate trial counsel for other parties if known: Leigh A.J. Ellis, Esquire, 2010 Market Street, Camp Hill, PA 17011 This case is ready for trial. Signed: Date: to )-L/ I ol Print Name: David J. Foster Attorney for: Plaintiffs tJs .© -- c-n r; ?_ ? ? r rt --t L 6 ^. FOULKROD ELLIS Professional Corporation Attorneys for Defendants: 2010 Market Street Gregory L. Lewis, M.D. and Camp Hill, Pennsylvania 17011 Carlisle Digestive Disease Telephone: (717) 909-7006 Associates, Ltd. and Fax: (717) 909-6955 Carlisle Endoscopy Center, Ltd. ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs V. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-3117 CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED DEFENDANTS' MOTION FOR A CASE MANAGEMENT CONFERENCE PURSUANT TO PA. R.C.P. 1042.41(a) AND NOW, come Defendants, Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd., and Carlisle Endoscopy Center, Ltd. ("Defendants"), by and through their counsel, Foulkrod Ellis, Professional Corporation, to file the within Motion for Case Management Conference pursuant to Pa. R.C.P. 1042.41(a) as follows: 1. The within medical malpractice action was initiated by a Complaint that was filed on May 31, 2006. 2. The basis of the Complaint is Dr. Lewis' alleged failure to diagnose colon cancer suffered by Plaintiff, Robert Loy. 3. The pleadings are closed and discovery is essentially complete. 3 4. Pursuant to Pa. R.C.P. 1042.41(a), one year from the date of the first Answer has passed, which permits the filing of any Motion requesting the Court to issue an Order scheduling a Case Management Conference. 5. It is Defendants' belief that all parties will benefit from a Case Management Conference that establishes deadlines and a firm trial date. 6. Plaintiffs concur with the within Motion. WHEREFORE, Defendants respectfully request that the Court schedule a Case Management Conference in this matter. Dated: l L)41 /y Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION By: Leig A.J. Ellis, Esquire Attorney I.D. No. 53229 Cindy N. Ellis, Esquire Attorney I.D. No. 83823 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of foregoing document was served upon counsel of record this 31 st day of October, 2007, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 FOULKROD ELLIS PROFESSIONAL CORPORATION By: ct-t'? ? .' " Cryst L. Nemetz, Secretary r_. S l t_. ;" `', :=?: .. , f Costopoulos, Foster & Fields By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Plaintiffs ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. DOCKET NO.: 06-3117 Civil VS. GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT RE: PUNITIVE DAMAGE(S) CLAIM AND NOW come the Plaintiffs, Robert and Linda Loy, by and through their attorney, David J. Foster, Esquire, Costopoulos, Foster & Fields, and answer as follows: 1. Admitted. 2. Admitted in part. The Complaint speaks for itself and specifies a number of allegations of specific instances reckless conduct. In addition, as part of the discovery process, Plaintiffs have produced reports of three separate physicians, with opinions as to the defendants' conduct, copies of which are attached hereto as Exhibits I, J, and K. These expert opinions provide the evidentiary basis for a reasonable jury to conclude that the defendants' conduct was with reckless disregard for Plaintiff Robert Loy's safety and welfare and therefore that punitive damages are warranted. It is a question for the jury because the failure to diagnose cancer has repeatedly been held by the Courts to justify -1- the imposition of punitive damages. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted in part as to the date on which oral arguments were held. However, Plaintiff is unable to address the issue of defense counsel's recollection of what he thinks he may have heard at the time. 9. Denied. Plaintiffs' counsel is unable to address the issue of defense counsel's recollection of what he thinks he may have heard at the time. Further, the allegations in the Complaint are appropriate. 10. Admitted. 11. Admitted. 12. Admitted, with the exception of a supplemental economic loss report. 13. Denied. See Exhibits I, J, and K. 14. Admitted. 15. Admitted. 16. Admitted. This treatment, however, was not what was required by the standard of care. See Exhibits, I, J, and K. 17. Admitted. The mere taking of biopsies was not what was required by the standard of care, in part because of the long known risk of malignant transformation. See Exhibits I, J, and K. -2- 18. Admitted. 19. Admitted in part. Denied in part. While it is admitted that Dr. Lewis did not remove the polyp in its entirety, rather, he took some biopsies instead, which is not what was required by the standard of care, and that he explained his reasoning as described, it is denied that his reasoning was acceptable under the circumstances of the case. See Exhibits I, J, and K. 20. Admitted in part. Denied in part. It is admitted that Dr. Lewis testified as stated and that he exercised his clinical judgment, but his clinical judgment was not in accordance with the standard of care in this case. His allegation about the appropriate course of action was incorrect and reckless under the circumstances of this case. See Exhibits I, J. and K. 21. Admitted. Dr. Lewis testified as stated and explained his thought process, and his thought process was reckless. 22. Admitted in part. Denied in part. It is admitted that Plaintiff returned for another colonoscopy. The validity of defense counsel's characterization of the "plan" is denied. 23. Admitted. It is admitted that Dr. Lewis testified as stated during his deposition. 24. Admitted in part. Denied in part. It is admitted that Dr. Lewis testified as stated during his deposition. The characterization of the cause and the validity of the remaining conclusions contained in the allegation are denied. 25. Admitted in part. Denied in part. It is admitted that Plaintiff returned for another colonoscopy. The validity of defense counsel's characterization of the "plan" is -3- denied. 26. Admitted in part. Denied in part. It is admitted that Dr. Lewis testified as stated during his deposition. It is denied that what he stated is accurate. It is admitted that Plaintiff returned for another colonoscopy. Defense counsel's characterization of the "plan" is denied. 27. Admitted. However, the mere taking of several biopsies was not what was required by the standard of care, in part because of the risk of malignant transformation. See Exhibits I, J, and K. 28. Admitted in part. Denied in part. It is admitted that Dr. Lewis testified as stated during his deposition. It is denied that what he stated is medically accurate. Also, the validity of defense counsel's characterization of the "plan" is denied as stated. 29. Admitted in part. Denied in part. It is admitted that Plaintiff returned for another colonoscopy. The validity of defense counsel's characterization of the "plan" is denied. 30. Admitted in part and denied in part. It is admitted that Dr. Lewis testified as stated during his deposition. It is denied that what he testified to is medically accurate or accepted as the standard of care. 31. Admitted in part. Denied in part. It is admitted that Dr. Lewis testified as stated during his deposition. it is denied that what he stated is medically accurate or accepted as the standard of care. The validity of defense counsel's characterization of the formulation of a "plan" is denied as stated. 32. Admitted in part. Denied in part. It is admitted that Plaintiff returned for another colonoscopy. The validity of defense counsel's characterization of the "plan" is -4- denied. 33. Admitted in part. Denied in part. It is admitted that Dr. Lewis testified as stated during his deposition. It is denied that what he testified to is medically accurate. 34. Admitted. See Exhibits I, J, and K. 35. Admitted. However, the taking of biopsies was not what was required by the standard of care, in part because of the risk of malignant transformation. See Exhibits I, J, and K. 36. Admitted. The date of the colonoscopy is correct. His assesment was as stated, however, Dr. Lewis' assessment was incorrect and reckless. See Exhibits I, J, and K. 37. Admitted. 38. Admitted. 39. No answer required as what is stated is a conclusion of law. 40. No answer required as what is stated is a conclusion of law. 41. Admitted. And, such evidence has been amply adduced. 42. No answer required as what is stated is a conclusion of law. 43. Denied. 44. No answer required as what is stated is a conclusion of law. 45. No answer required as what is stated is a conclusion of law. 46. No answer required as what is stated is a conclusion of law. 47. No answer required as what is stated is a conclusion of law. 48. No answer required as what is stated is a conclusion of law. 49. Denied. The Complaint's allegations are sufficient to support a claim for -5- punitive damages. The Complaint speaks for itself and specifies a number of allegations of specific instances of reckless conduct. In addition, as part of the discovery process, Plaintiffs have produced reports of three separate physicians, with opinions as to the defendants' conduct, copies of which are attached hereto as Exhibits 1, J, and K. These expert opinions provide the evidentiary basis for a reasonable jury to conclude that the defendants' conduct was with reckless disregard for Plaintiff Robert Loy's safety and welfare and therefore that punitive damages are warranted. It is a question for the jury because the failure to diagnose cancer has repeatedly been held by the Courts to justify the imposition of punitive damages. 50. Admitted. 51. Denied. Plaintiffs' counsel is unable to address the issue of defense counsel's ability to "glean". However, his statement of Plaintiffs belief is incorrect. 52. Denied. See Exhibits I, J, and K. 53. Denied. There is ample evidence. See Complaint and see Exhibits I, J, and K. 54. Denied. To the contrary, Dr. Lewis's conduct was reckless and below the standard of care required during his encounters with the Plaintiff. See Exhibits 1, J, and K. 55. Denied. In Exhibit I, J, and K in excess of thirteen separate violations of the standard of care are documented. These expert opinions provide the evidentiary basis for a reasonable jury to conclude that the defendants' conduct was with reckless disregard for Plaintiff Robert Loy's safety and welfare and therefore that punitive damages are warranted. It is a question for the jury because the failure to diagnose cancer has -6- repeatedly been held by the Courts to justify the imposition of punitive damages. WHEREFORE, Plaintiffs, based on the foregoing answer, and specifically Exhibits I, J and K, respectfully request that Your Honorable Court deny the Defendants' motion for partial summary judgment as to punitive damages. Respectfully submitted, David J. Foster, Esquire I.D. No. 23151 I/ COSTOPOULOS, FOSTER & FIELDS 831 Market Street, P.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 Counsel for Plaintiffs Date: November ? , 2008. -7- CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire of the law offices of Costopoulos, Foster & Fields, hereby certify that on this Y day of November, 2007 a true and correct copy of the foregoing PLAINTIFFS' ANSWER TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGEMENTRE: PUNITIVE DAMAGE(S) CLAIM was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Leigh A.J. Ellis, Esquire FOULKROD ELLIS 2010 Market Street Camp Hill, PA 17011 Attorney for Defendants Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. By: COSTOPOULOS, FOSTER & FIELDS Leslie _M_ Yields, Esquire -8- RICHARD M. DWOSIGN, M.D., PA Diplomats, American Board of Internal Medicine and Gastroenterology Fellow, American College of Gastroenterology MEDICAL EXPERT REPORT CONFIDENTIAL COMMUNICATION WORK PRODUCT Date: 05109106 Attn: David I Foster Costopoulos, Foster & Fields Attorneys at Law 831 Market Street PO Box 222 Lemoyne, PA 17043-0222 Fax 717-761-4031 djonfoster@aol.com Re: Robert Loy Dear Mr. Foster, Thank you for allowing we to review the medical record on Rol bert Loy . I am Board CertiSied by the American Board of Internal Medicine in both Internal Medicine and Crastroenterology. My CV is attached to this report. I am a licensed physician in Florida and am in full time medical practice. My opinion has never been disqualified in a court of law. RECORDS REVIEWED 1. Carlisle Digestive Disease Associates, LTD 2. Roland R. Alexander, M.D., West Shore oncology 3. Bryant general Surgery 4. Family Practice Center, P.C. 5. Carlisle regional Medical Center FACT SUMMARY On Q1122l1997, Dr. Gregory Lewis performed colonoscppy on Mr. Robert Loy, then a 47-year-old male with a family history of colon polyps. Dr Lewis found a "large nodular sessile polypoid nnass; approximately 4-5 em in length and 1-2 cm wide, in the PLAINTIFF'S EXHIBIT hepatic flexure area of the colon. Multiple hot biopsies weretaken. No attempt was made to remove the mass in its entirety. Biopsy specimen consisted of "five tiny pieces of tissue", and showed the to be a tubular adenoma. Lewis recommended surveillance colonoscopy one year later. On 01/30/98 Lewis performed a second colonoscopy on Loy. Despite having seen the large lesion in 1997, he was unable t) locate it He indicated the colonoscopy was "normal". He recommended CBC and stool%hemoccults. If either were positive, than "BE with visualization of the right colon". If negative, surveillance colonoscopy in two years. On 03/22100 Lewis performed a third colonoscopy on Loy. Lewis found a "relatively good sized, perhaps 1 em to 1.5 omlflat, sessile, nodular polyp in the proximal transverse colon near the hepatic flexure." He stated in his op note that this "is probably the probable polyp I noted 2 years ago that I felt was in the descending colon, and because of looping of the scope, the position was d?ificult to ascertain at that time". Several hot biopsies were taken, but no attempt was mode to remove the lesion. He noted that the lesion was "hard to see and cannot be removed". Biopsy material consisted only of two tiny pieces of tissue, and again showed a tubular adenoma. He recommended repeat colonoscopy in one year. On 04/10/01 Lewis performed his fourth colonoscopy on Loy. Preparation of the colon was poor. He was not certain he reached the end of the colon, known as the eecum. Despite the poor prep and the lack of certainty about the completeness of the procedure, Lewis recommended repeat colonosoopy in one year. On 05/01/02, Lewis performed his fifth colonoseopy on Loy. Mu4#ple polyps were seen including a 4-mm polyp in the proximal transverse colon, which was flat. Hot biopsy was performed, but resection was incomplete. The transverse eolon? polyp was adenomatous. One-year follow up was recommended.. Dr. Lewis performed leis sixth colonoscopy on Loy on 06/30/03, finding 3 tiny polyps, I- mm in size. The specimen showed benign hyperplastic tissue and colonic mucosa with no pathologic diq$nosk Because of gastrointestinal bleeding in 7/05 EGG was performed by Dr. Berk. No colonoscopy was done because of the findings on prior.colonoseopies. Recurrent rectal bleeding on 12/05 resulted in the performance of colonoscopy by Dr. Berk, who found a "partially obstructing malignant appearing mass" which was probably located in the transverse colon, Biopsy revealed this to be adenoearcinoma. On 12/29/0 Loy underwent a R hemicolectomy and liver biopsy. Obstructing colon cancer, liver and peritoneal metastases were found. T'he tumor was located in the proximal transverse colon. Because the surgical resection was not curative, he has been seen by oncology for possible chemotherapy NEGLIGENCE OF DR, LEVM Dr. Lewis substantially fell below the prevailing professional standard of care for a gastroenterologist treating a patient such as Mr. Loy by: 1. Failure to adequately evaluate the large colon lesion seen in 1997 2. Reliance on tiny superficial biopsy specimens to provide a full histologic evaluation of the lesion in 1997 3. Failure to recognize that the lesion in 1997 required complete removal to assure complete histologic diagnosis and cure. 4. Failure to recognize that sessile nodular lesions are more likely to be or become cancerous. 5. Failure to recognize that a large lesion such as found in 1997 has a higher likelihood of being or becoming cancer than a smaller lesion. 6. Failure to explain the absence of the large lesion) found in 1997 during the colonoscopy of 1998. 7. Relying on CBC and stool hemoccults to make a determination as to the need for BE for evaluation of the right colon in 1998. 8. Failure to adequately evaluate the colon lesion seen in 2000. 9. Reliance on tiny superficial biopsy specimens to provide a full histologic evaluation of the lesion in 2000. 10. Failure to recognize that the lesion in 2000 requived complete removal to assure complete histologic diagnosis and cure. 11. Relying on colonoscopy in 2001 when the preparotion of the colon was technically poor and the completeness of the pro*ure could not be certain.. 12. Failure to explain the absence of the large lesion found in 1997 during the colonoscopy of 2001, 2002, 2003. 13. Relying on hot biopsy with tiny tissue fragments, and incomplete removal, to treat a pre-malignant colon lesion such as found in 1997 and 2000. DAMAGES 1. Progression of a pro-malignant lesion or early canker to advanced colon cancer or to advanced metastatic colon cancer. 2. Marked reduction of chance of oure by the delayers diagnosis of colon cancer. CAUSATION As a result of the negligence of Dr. Lewis, as enumerated above, your client, Robert Loy suffered the above damages. The opinions contained in this report are to a reasonable deWW of medical certainty. I reserve the right to alter, amend, revise or supplement this opinion based upon any additional information received. Thank you for allowing me to evaluate the chart on Rdbert Loy. If x can be of any further assistance, please do not hesitate to contact me. S' ly, Richard M. Dwoskin, D. Kirk I Zachary MD, FRCP, FACE 500 E 83 Street NY, NY 10028 (212) 772 6709 David Foster, Esq. 831 Market Street Lemoyne, PA 17043-0222 Re: Robert Loy Dear Mr. Foster, I, Kirk Zachary MD, am a Board Certified Internists and Gastroenterologist. I am licensed to practice in both New York and Connecticut. I have reviewed the records of Robert Loy. These include the office and endoscopy records of Dr. Gregory Lewis and the hospital notes from Carlisle Regional Medical Center. The following is the pertinent summary of the clinical findings: Mr. Loy was seen on January 8, 1997 for a pre-colonoscopy consultation by Dr. Gregory Lewis. At that time, Mr. Loy was 47 years old. It was noted that the patient's father had colon polyps removed in the past. There was no &a ffy history of colon cancer. Dr. Lewis performed a colonoscopy on January 22, 1997. The colon preperation revealed liquid stool. In the ascending colon, "there was a largo nodular, sessile polypoid mass that had the appearance of a villous adenoma but I could not exclude a small adenocarcinoma. It was perhaps 4-5 cm in length and 1-2 cm in width ...If this is lesion is malignant or shows dysplasia, I feel it needs to be surgically removed. If it is a benign adenomatous polyp , I feel a surveillance colonosopy should be done in one year." The biopsy of this lesion was Tubular Adenoma. One year later, the patient had his second colonoscopy oo January 30, 1998. "The patient had liquid and semi-particulate matter-throughout his colon... The polypoid mucosal abnormality of the ascending colon was not seen despite several looks ...I am still concerned because of the liquid and semi particulate matter , that a small polypoid mucosal area could have been obscured ...I would consider an air contrast barium enema with visualization of the right colon." PLAINTIFF'S EXHIBIT K A third colonoscopy was performed on March 22, 2000. "The only abnormality was a relatively good sized, perhaps Icm to 1.5cm flat, sessile nodular polyp in the proximal transverse colon near the hepatic flexure. This is probably the polyp I noted two years ago that I felt was in the ascending colon and, because of looping of the scope, the position was difficult to ascertain at the time. This polyp appears benign, but I took several large hot biopsies of it to make sure it is not dysplastic. If it is dysplastic or a villous adenoma and since it is hard to see and it cannot be removed, one would consider a proximal transverse/right colon resection." Biopsies were again Tubular Adenoma. The fourth colonoscopy was done on April 10, 2001. "There was an extreme amount of stool throughout. In all areas of the colon, there was stool. There was no obstruction neoplasm. No large polyp was seen." The fifth colonoscopy was on May 1, 2002. "Multiple polyp tissue was removed. One polyp in the proximal transverse colon was flat and larger and could be dysplastic --pending biopsies." Pathology of the Transverse colon polyp was again Tubular Adenoma. The sixth colonoscopy was on June 30, 2003. Multiple small polyps were seen. Of note, there is no mention of the previously seen large polyp in the transverse colon. An endoscopy was performed on August 4, 2005 because of melena. The endoscopy was essentially normal. No colonoscopy was performed at this time. A seventh colonoscopy was done on December 7, 2005. This revealed "a partially obstructing malignant appearing mass in the colon at about 60cm from the anus with the scope straightened. The mass was circumferential and the scope could not be advanced proximal to the lesion. The tumor was probably in the transverse colon, but since I could not be absolutely certain of the location, the lesions was successfully injected with 3ml of India Ink for tattooing." Pathology revealed Adenocarcinoma. The patient underwent a right hemicollectomy in Decemlber 2005. A CT scan showed metastatic disease to the lungs, liver, and peritoneum. Discussion The current medical thinking is that almost all colon cancers arise from small growths in the colon called polyps. Colon polyps are often composed of glandular cells and these are called adenomatous polyps. Although most polyps do not become malignant, almost all colon malignancies originate from adenosnatous colon polyps, The risk of progressing from adenoma to carcinoma is directly related to size of the polyp, villous histology, and high grade dysplasia. This is called the Adenoma Carcinoma sequence for the development of colon cancer There were multiple departures from the accepted standards of medical care. At the initial colonoscopy, Dr. Lewis saw a large polyp that he bibpsied (Tubular Adenoma) but did not remove. We do not leave large polyps in situ. They are removed with snare polypectomy or by surgery. If a gastroenterologist is unable to remove a lesion, the standard of care dictates that the patient be referred to a therapeutic endoscopist or to a surgeon. Polyps are not left in situ because of the risk of malignant transformation; failure to do so is a violation of the standard of care. Polyps may undergo a malignant degeneration from adenoma to carcinoma. Dr. Lewis performed numerous colonoscopies on Mr. Loy. On many occasions, he noted the colon was poorly prepared with liquid stool obscuring the view. The standard of care dictates that the colon be seen. It was a departure from standard medical care not to reimage the colon with a better preparation. If this was not feasible, then the patient should have had a Barium Enema or a Virtual Colonoscopy. The patient had many colonoscopies with poor colon preparations and the lesion was never clearly seen again. This is not acceptable. There should have been another imaging test or a referral to another endoscopist; failure to do so was a violation of the standard of care. To a reasonable degree of medical certainty, the failure 0 remove the polyp as seen in 1997 and failure to see the polyp on subsequent colonoslccopies, and to take the required steps as described above, in violation of the standard of care, resulted in the polyp developing over the years into the metastatic cancer Winch, was ultimately diagnosed in December 2005 for which Mr Loy is now underging treatment. GERALD H SOKOL MD 7651 MEDICAL DRIVE HUDSON FL 34667 727-868-9208 March 15, 2007 Mr. David J. Foster, Esq. Costopoulos Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 Re: Loy, Robert D Medicolegal Consultation Dear Mr. Foster: I appreciate having the opportunity to review the medical records pertaining to Robert D. Loy. I have reviewed the medical records of Roland R. Alexander in East Shore Oncoldgy, as well as the medical records of Geismger Health System, Bryant General Surgery including the medical records of Dr. Bryant, the medical records of Carlisle Digestive Disease Associates Ltd, the surgical pathology reports of Carlisle Regional Medical Center, records of Walnut Bottom Radiology, and additional varied laboratory work from various laboratories. BRIEF STATEMENT OFT HE FACTS: Mr. Robert Loy was born on 02/12/49. He underwent colonoscopy on 01/22/97 v0hich revealed a large polyp of approximately 4-5 centimeters in length and 1-2 centimeters in width. This polyp was not removed. He underwent a second colonoscopy on 01/30/98; because of the presence of liquid and semi particulate matter in the colon, the polyp of the year before could not be visualized. No immediate repeat colonoscopy was ordered or performed. He underwent colonoscopy on 03/22/00 and a 1 centimeter to 1.5 centimeter flat sessile nodular polyp was found. This polyp was not removed. He underwent a fourth colonoscopy on 04/10/01, but no polyp couldbe seen due to the presence of stool; no immediate repeat colonoscopy was ordered or PLAINTIFF'S EXCH. IBIT performed. He underwent a fifth colonoscopy on 05/01/02 and multiple polyps were observed but they were not completely removed. He underwent a sixth colonoscopy on 06/30/003 and the presence of polyps was revealed. This was a hyperplastic polyp, and a polypectomy was performed, but was incomplete. Colonoscopy was planned for an additional five years later, but he developed additional bleeding in December 2005. Colonoscopy documented the presence of tumor. Ibis procedure in December 2005 was preceded by an episode of rectal bleeding that was not diagnosed or treated. Regrettably, the testing in December 2005 confirmed that a carcinoma had metastasized to eight lymph nodes, as well as to the liver. At this point in time, Mr. Loy was clearly incurable. Mr. Loy is now undergoing chemotherapy, but his prognosis for the future is guarded with demise likely in the near future. STANDARD OF CARE: The standard of care demands that complete polypectomy be performed particularly for dysplastiC polyps. This was not done as required in January 1997, March 2000, May 2002, and June 2003, all in violation of the standard of care. It was also in ;violation of the standard of care not to order repeat colonoscopies when the presence of stool prevented proper visualization of the colon, as was the case in January 1998 and April 2001. When rectal bleeding occurred in July 2005, the past medical history of dysplastic polyps should have been a red flag for immediate intervention which was not completed until December 2005. At that time, metastatic disease had occurred, and Mr. Loy is no longer a candidate for cure. CAUSATIONAL DAMAGES: Because of the delay in diagnosis from as early as January 1997 and thereafter, and as recent as June 2003 until diagnosis was ultimately made in December 2005, Mr. Loy went from a candidate, within a reasonable degree of medical certainty, likely to be cured, to an individual with no hope for cure at this point in time. Had appropriate intervention been performed from as early as January 1997 to as late as June 2003, with the appropriate removal of the dysplastic polyps, within a reasonable degree of certainty, Mr. Loy would not be facing an imminent demise. With best personal regards, d H. Sokol, M.D., M.S., F.C.P. Assistant Professor of Medicine & Clinical Pharmacology GHS/erd t? ?a -_> r; ? _ `r? t:m::± ? - -r'i ??it ? ? - ?? iT' ? ?. i ?. C' °7 ' ....? {_ ? ". -8 ' . >.,, . r,... ?_:. ..',,7 -.' 6 OCT 2 62007 Robert Loy and Linda Loy, his wife v. Gregory Lewis, M.D., Carlisle Digestive Disease Associates, LTD, and Carlisle Endoscopy Center, LTD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-3117 CIVIL TERM ORDER OF COURT AND NOW, October 24, 2007, by agreement of counsel, the above captioned am case is stricken from the November 12, 2007 trial term. Counsel i directed to relist the case when ready. By the Court, avid J. Foster, Esquire Zeigh Plaintiff A.J. Ellis, Esquire For the Defendant Court Administrator -13 6? kam 4 c? 0 e V ROBERT LOY AND LINDA LOY, his wife, Plaintiffs VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-3117 CIVIL GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD., AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants JURY TRIAL DEMANDED IN RE: MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS BEFORE BAYLEY, P.J. ORDER AND NOW, this I* day of February, 2008, the court noting that summary judgment may not be grounded on the testimony of the moving party, even if uncontroverted, the Motion of the Defendants for Partial Summary Judgment on the question of punitive damages, as to Gregory L. Lewis, M.D., is DENIED. See Pa.R.C.P 1035(a)(1). The Plaintiffs having admitted in their answer to the Defendants' Motion for Partial Summary Judgment that the captioned corporate defendants did not have actual knowledge regarding the conduct of Dr. Lewis, the Motion of the Defendants for Partial Summary Judgment on the question of punitive damages, as to Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. is SUSTAINED. See 40 P.S. § 1303.505(c). BY Edgar B. Bayley, P.J. T Cs t :? GL ui LL3 ? _ r_ . m L.L. 0 CC> = C N RY V /David J. Foster, Esquire For the Plaintiffs Leigh A. J. Ellis, Esquire Cindy N. Ellis, Esquire For the Defendants O-ap i 'Fs m c'T LL CO S/D$ Am COSTOPOULOS, FOSTER & FIELDS By: David J. Foster, Esquire PA ID No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: 717.761.2121 Fax: 717.761.4031 ORIGINAL Email: djonfosterc&aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBERT LOY AND LINDA LOY, HIS WIFE, Plaintiffs DOCKET NO.: 06-3117 Civil VS. CIVIL ACTION - LAW (MEDICAL MALPRACTICE) JURY TRIAL DEMANDED GREGORY L. LEWIS, M.D., CARLISLE DIGESTIVE DISEASE ASSOCIATES, LTD. AND CARLISLE ENDOSCOPY CENTER, LTD., Defendants PRAECIPE TO SETTLE. DISCONTINUE. AND END TO THE PROTHONOTARY: Please mark the above-captioned action settled, discontinued, and ended. Respectfully submitted, David J. Fo , Es uire I.D. No.: 2315 COSTOPOULOS, FOSTER & FIELDS 831 Market Street, P.O. Box 222 Lemoyne, PA 17043 Phone: 717.761.2121 Fax: 717.761.4031 Website: www.costopoulos.com ATTORNEY FOR PLAINTIFF Date: January 7, 2009. CERTIFICATE OF SERVICE 1, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, hereby certify that on this 8T" day of JANUARY, 2009, a true and correct copy of the foregoing PRAEC/PE TO SETTLE, DISCONTINUE, AND END was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Cindy N. Ellis, Esquire FOULKROD ELLIS 2010 Market Street Camp Hill, PA 17011 Attorney for Defendants Gregory L. Lewis, M.D., Carlisle Digestive Disease Associates, Ltd. and Carlisle Endoscopy Center, Ltd. By: COSTOPOULOS, FOSTER & FIELDS s Tiffany M. Miller fay