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HomeMy WebLinkAbout02-2537GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS 19 Brookwood Avenue, Suite 104 Carlisle, PA 17013 CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL 246 Parker Street Carlisle, PA 17013-0310 Defendants 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to ()~x~ff James DeCinti, Esquire Signature of Attomey 4503 No~h Front Street Harrisburg, PA 17110 717/238-6791 I.D. No. 77421 Date: WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) COMMENCED AN ACTION AGAINST YOU. Prothonotary Date:~ HAS/HAVE l~puty SHERIFF'S CASE ~0:2002-02537 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMSPACHER GARY VS BAKER DAVID CARLTON MD ET AL RETURN - REGULAR DOUGLAS DONSEN , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon BAKER DAVID CARLTON MD FACS the DEFENDANT , at 19 BROOKWOOD AVENUE CARLISLE, PA 17013 at 0925:00 HOURS, on the 3rd day of June SUITE 104 by handing to CINDY BRANDT, MEDICAL ASST. , 2002 a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this /~ ~ day of So Answers: R. Thomas Kline 06/03/2002 ANGINO & ROVNER Deputy Sheriff SHERIFF'S RETURN C~SE ~0: 2002-02537 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMSPACHER GARY VS BAKER DAVID CARLTON MD ET AL - REGULAR DOUGLAS DONSEN Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon CARLISLE REGIONAL MEDICAL CENTER SUCR TO CARLISLE HOSPIT the DEFENDANT , at 0915:00 HOURS, on the 3rd day of June at 246 PARKER STREET , 2002 CARLISLE, PA 17013 by handing to KATHRYN KUCHWARA HR GENEP, ALIST a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 19.45 Sworn and Subscribed to before me this /n ~ day of ~ ~ A.D. /-~rothonotary , , So Answers: R. Thomas Kline ' 06/03/2002 ANGINO & ROVNER D~puty Sheriff GARY AMSPACHER, Vo Plaintiff DAVID CARLTON BAKER, M.D., FACS; : and CARLISLE REGIONAL MEDICAL : CENTER, Successor to Carlisle Hospital, : Defendants : IN THE COURT ( CUMBERLAND CIVIL ACTION - NO. 02-2537 Civil JURY TRIAL DE~ ENTRY OF APPEARANCE Please enter the appearance of the undersigned as counsel for Health and Wellness Foundation, erroneously named "Carlisle Regior Successor to Carlisle Hospital", in the above-captioned matter. Respectfully submitted, FARRELL & RICCI, P.£ ~ 4423__N.o~Front Street Harrisburg, PA 17110 (717) 230-9201 Counsel for Defendant Carl Wellness Foundation )F COMMON PLEAS ',OUNTY, PENNA. LAW Term isle Health and Date: )efendant, Carlisle Medical Center, IANDED CERTIFICATE OF SERVICE AND NOW, this ~ 0%ay of June, 2002, I, Joseph A. Ricci, that I served a true and correct copy of the foregoing Entry of Appea: of record by depositing a copy of same in the United States mail, regu] prepaid at Harrisburg, Pennsylvania, addressed as follows: James DeCinti, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 David Carlton Baker, M.D., FACS 19 Brookwood Avenue, Suite 104 Carhsle, PA 17013 Esquire, hereby certify 'ance upon all counsel ar delivery, postage GARY AMSPACHER, Plaintiff V. DAVID CARLTON BAKER, M.D., FACS; and CARLISLE REGIONAL MEDICAL CENTER, Successor to Carlisle Hospital, Defendants IN THE COURT Oi CUMBERLAND C¢ CML ACTION - NO. 02-2537 Civil JURY TRIAL DEM PRAECIPE FOR RULE TO FILE A COMPLA TO THE PROTHONOTARY: Kindly issue a Rule upon Plaintiff to file a Complaint within suffer a judgment of non pros. Respectfully submitted, FARRELL & RICCI, P.( Date: uly gO , 2002 .~h A.~ci, Esquire Attorney I.D~No. 49803 ~,~ B, arone ~'Attorney ID. No. 68921 4423 North Front Street Harrisburg, PA 17110 (717) 230-9201 Counsel for Defendant Cm WelLness Foundation COMMON PLEAS )UNTY, PENNA. AW ?erm ANDED [NT wenty (20) days or hsle Health and GARY AMSPACHER, : Plaintiff : V. : DAVID CARLTON BAKER, M.D., FACS; : and CARLISLE REGIONAL MEDICAL : CENTER, Successor to Carhsle Hospital, : Defendants : IN THE COURT O] CUMBERLAND C( CIVIL ACTION - NO. 02-2537 Civil JURY TRIAL DEM RULE TO FILE A COMPLAINT TO: Gary Amspacher, Plaintiff c/o James DeCinti, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 Counsel for Plaintiff You are hereby ruled to file a Complaint within twenty (20) d Rule or suffer a judgment of non pros. Dated: /.~ c~[~V~ COMMON PLEAS IUNTY, PENNA. AW 'erm ANDED ~ys of receipt of this CERTIFICATE OF SERVICE AND NOW, this ~ ~) ~day of June, 2002, I, Joseph A. Ricci, that I served a true and correct copy of the foregoing Praecipe for R~ upon all counsel of record by depositing a copy of same in the United S delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as fi James DeCinti, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 David Carlton Baker, M.D., FACS 19 Brookwood Avenue, Suite 104 Carlisle, PA 17013 ~ ~~cci, Esquire ]squire, hereby certify Ie to File a Complaint ;ates mail, regular ,]]OWS: GARY AMSPACHER, Vo Plaintiff DAVID CARLTON BAKER, M.D., FACS;: and CARLISLE REGIONAL MEDICAL : CENTER, Successor to Carhsle Hospital, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CML ACTION - LAW NO. 02-2537 Civil Term JURY TRIAL DEMANDED STIPULATION OF COUNSEL AND NOW comes Plaintiff, Gary Amspacher, by and through his counsel, Angino & Rovner, P.C., by James DeCinti, Esquire, and Defendant, Carlisle Area Health and Wellness Foundation, erroneously named "Carlisle Regional Medical Center, successor to Carlisle Hospital," by and through its counsel, Farrell & Ricci, P.C. by Joseph A. Ricci, Esquire, and hereby stipulate and agree as follows: 1. At all times material hereto, care provided to Gary Amspacher, which was hospital based, was provided at the Carlisle Hospital. 2. Carlisle Hospital was a separate subsidiary corporation of Carlisle Hospital and Health Services. 3. On June 19, 2001, Health Management Associates, Incorporated of Naples, Florida, created a separate and distinct provider of hospital services known as the Carlisle Regional Medical Center. 4. On June 19, 2001, the Carlisle Area Health and Wellness Foundation was created by a corporate name change and is the successor to Carlisle Hospital and Health Services. 5. On June 19, 2001, Carlisle Health Services Corporation was created by a corporate name change and is the successor to Carlisle Hospital. GARY AMSPACHER, Vo Plaintiff : .. ; . DAVID CARLTON BAKER, M.D., FACS;: and CARLISI,E REGIONAL MEDICAL : CENTER, Successor to Carlisle Hospital, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 02-2537 Civil Term JURY TRIAL DEMANDED ORDF_~ AND NOW, on this ~b day of ~ ~4. 2002, upon review of the attached [ Stipulation of Counsel, it is hereby ORDERED and DECREED that the above-referenced matter shall have its caption amended to read as follows: GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS; and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. : CIVIL ACTION - LAW : NO. 02-2537 Civil Term ; . . : JURY TRIAL DEMANDED BY T J. 6. All existing liability of the Carlisle Hospital as related to patient care, which existed on June 19, 2001, is the responsibility of the successor corporations, Carlisle Health Services Corporation and the Carlisle Area Health and Wellness Foundation. 7. The correct corporate Defendant in the above-captioned matter should be named "Carlisle Area Health and Wellness Foundation." 8. The parties hereto stipulate and agree that the caption shall be amended to read as follows: GARY AMSPACHER, Plaintiff Vo DAVID CARLTON BAKER, M.D., FACS; and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants IN THE COURT OF COMMON PI,EAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 02-2537 Civil Term JURY TRIALDEMANDED ANGII~O & ROVNER, P.C. Ja~es ~)eCinti, ]~squire Attorney I.D. No. 77421 4503 North Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs FARRELL & RICCI, P.C. .~ph A.~eei, Esquire Attorney I.~. No. 40803 '~4~29-Nviq~ Front Street Harrisburg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Area Health and Wellness Foundation CERTIFICATE_--OF SERVICE_ AND NOW, this ~]/~day of July, 2002, I, Joseph P~ R/cci, Esquire, hereby certify that I served a true and correct copy of the foregoing Stipulation of Counsel upon all counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: James DeCinti, Esquire Angino & Rovner, P.C- 4503 North Front Street Harrisburg, PA 17110 David Carlton Baker, M.D., FACS 19 Brookwood Avenue, Suite 104 Carlisle, PA 17013 E~quire THOMAS, THOMAS & HAFER, LLP By: Evan Black, Esquire Identification No. 17884 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant David C. Baker, M. D., FACS GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2537 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule on Plaintiff to file a Complaint in the above case within twenty (20) days of service of said Rule, or suffer a judgment of non pros pursuant to Pa.R.C.P. 1037(a). Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Evan Black, Esquire I.D. No. 17884 P. O. Box 999 Harrisburg, PA 17108-0999 Phone: (717) 237-7100 Attorney for Defendant David Carlton Baker, M.D., FACS GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2537 CIVIL TERM JURYTRIALDEMANDED RULE TO FILE A COMPLAINT TO: Plaintiff and Plaintiff's counsel: AND NOW, this _,>0q~t'/~ day of ~te~ tx.g"/--- . 2002, a Rule is hereby issued upon the Plaintiff to file a Complaint herein within twenty (20) days after service hereof, or suffer the entry of a Judgment of Non Pros pursuant to Pa.R.C.P. 1037(a). Cumberland coUnty P~othonotary CERTIFICATE OF SERVICE I, Vicki A. Bolinger, an employee of the law offices of Thomas, Thomas & Haler, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: James DeCinti, Esq. Angino & Rovner, P. C. 4503 North Front Street Harrisburg, PA 17110 Joseph A. Ricci, Esq. Farrell & Ricci, P. C. 4423 North Front Street Harrisburg, PA 17110 Date: 8/28/02 Vicki A. Bolinger, RP ~} THOMAS, THOMAS & HAFER, LLP By: Evan Black, Esquire Identification No. 17884 305 North Front Street P. 0. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant David C. Baker, M. D., FACS GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2537 CIVIL TERM JURYTRIALDEMANDED TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant David C. Baker, M. D., FACS in the above-captioned matter. THOMAS, THOMAS & HAFER, LLP EVAN BLACK, ESQUIRE Attorney for Defendant David C. Baker, M. D., FACS CERTIFICATE OF SERVICE I, Vicki A. Bolinger, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: James DeCinti, Esq. Angino & Rovner, P. C. 4503 North Front Street Harrisburg, PA 17! 10 Joseph A. Ricci, Esq. Farrell & Ricci, P. C. 4423 North Front Street Harrisburg, PA 17110 Date: 8/28/02 Vicki A. Bolinger, RP U ' GARY AMSPACHER, Plaintiff Vo DAVD CARLTON BAKER, M.D., FACS, and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA CIVIL ACTION .. LAW NO. 02-2537 CIVIL TERM JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in vaiting with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 NOTICIA Le Hanna demanded a ousted en la con/. Si ousted quire defenders de estas demandas expuestas en las paginas sugnuientes, usted tiene viente (20) dias de plazo al pan/r de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAG,MR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 255173.1UDkDZ GARY AMSPACHER, Vo Plaintiff DAVD CARLTON BAKER, M.D., FACS, and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 02-2537 CI¥IL TERM JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Gary Amspacher is an adult individual residing in Landisburg, Perry County, Pennsylvania. 2. Defendant, David Carlton Baker, M.D. (hereinafter "Defendant Baker"), is an adult individual and physician licensed to practice medicine in the Commonwealth of Pennsylvania, and with an office located in Cumberland County, Pennsylvania. 3. Defendant, Carlisle Area Health and Wellness Foundation, Successor to Carlisle Hospital (hereinafter "Defendant Carlisle Hospital"), is a corporation created under the laws of the Commonwealth of Pennsylvania for the delivery of healthcare services in Cumberland County, Pennsylvania. 4. On or about June 1, 2000, Mr. Amspacher fell off a ladder and injured his left Mr. Amspacher presented to the emergency room of Defendant Carlisle Hospital and was seen by a physician's assistant. 255173.1LID~DZ 2 6. Examination and X-rays revealed a fracture dislocation of Mr. Amspacher's left elbow and a displaced distal radius fracture of Mr. Amspacher's left wrist. 7. Defendant Baker was consulted, and on June 1, 2000, Defendant Baker performed surgical repair of both the wrist (open reduction internal fixation of left distal radius/carpal tunnel release) and elbow (open reduction internal fixation of' left distal elbow with ulnar nerve transposition) of Mr. Amspacher's left arm. 8. Defendant Baker saw Mr. Amspacher in follow up on June 6, 2000, and on June 16, 2000, Defendant Baker performed an examination under anesthesia with removal of sutures. 9. Defendant Baker saw Mr. Amspacher in follow up on or about June 22, 2000, at which time Mr. Amspacher was referred to Hershey Medical Center. 10. On or about June 30, 2000, Mr. Amspacher underwent another surgical repair of his left wrist, specifically open reduction internal fixation of the left radial head. 11. Mr. Amspacher continued to have persistent problems with his left wrist and elbow, despite conservative treatment. 12. On October 23, 2000, Mr. Amspacher underwent a surgical procedure to remove the hardware in his wrist, as well as a release of his first extensor compartment. 13. Mr. Amspacher has had persistent problems with his left arm, specifically his elbow, including pain, lack of mobility, and stiffness. 14. On account of the negligence of Defendants as more fully articulated in Counts I and II below, Plaintiff Gary Amspacher has suffered permanent injury and damage as follows and for which claim is made: a. Past and future medical bills; 255173.1UD\DZ Past pain and suffering; Future pain and suffering; Loss of income and earning potential; Permanent disfigurement; Embarrassment and humiliation; and Loss of life's pleasures and enjoyment. WItEREFORE, Plaintiff demands judgment against Defendants in an amount in excess of $25,000.00, exclusive of interest and costs and in excess of any amount requiring compulsory arbitration. COUNT I Plaintiff v. David C. Baker~ M.D. 15. Paragraphs 1 through 14 as set forth above are hereby incorporated by reference as though if fully set forth at length herein. 16. Defendant Baker was negligent with regard to his care and treatment of Plaintiff, Gary Amspacher, in the following respects: a. Failing to adequately examine and asses Plaintiffs injuries; b. Negligently performing surgery on Plaintiffs left elbow and wrist; c. Failing to use proper techniques when performing surgery on Plaintiffs left wrist and elbow; d. Negligently increasing Plaintiffs risk of permanent injury; and e. Failing to follow the acceptable standard of care during the surgeries performed on Plaintiff on June 1, 2000. 255173. I ~JD\DZ WHEREFORE, Plaintiff demands judgment against Defendants in an amount in excess of $25,000.00, exclusive of interest and costs and in excess of' any amount requiring compulsory arbitration. COUNT II Plaintiff v. Carlisle Area Health and Wellness Foundation~ Successor to Carlisle Hospital 17. Paragraphs 1 through 16 as set forth above are hereby incorporated by reference as though if fully set forth at length herein. 18. Plaintiff reasonably relied upon the expertise or apparent expertise of Defendant Carlisle Hospital through its physicians, physicians' assistants, residents, interns, agents, apparent agents, servants, and/or employees to be able to properly manage, diagnose, and treat his injury during his visit to Defendant Carlisle Hospital. 19. At all times relevant hereto, Defendant Carlisle Hospital had the right and duty to exercise control, authority, and supervision over all of its personnel. 20. Defendant Carlisle Hospital, through its agents, apparent agents, servants, and/or employees was negligent in the following respects: a. Failing to adequately examine and asses Plaintiff's injuries; b. Negligently performing surgery on Plaintiffs le~ elbow and wrist; c. Failing to use proper techniques when performing surgery on Plaintiff's left wrist and elbow; d. Negligently increasing Plaintiffs risk of permanent injury; and 255173.1 kJD\DZ e. Failing to follow the acceptable standard of care during the surgeries performed on Plaintiff on June 1, 2000. WHEREFORE, Plaintiff demands judgment against Defendants in an amount in excess of $25,000.00, exclusive of interest and costs and in excess of any amount requiring compulsory arbitration. Respectfully submitted, Date: ANGINO & ROVNER, P.C. James DeCinti, Esquire I.D. No. 77421 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 255173.1XJD~DZ 6 AFFIDAVIT COMMONWEALTH OF PENNSYLVAN/A · · SS COUNTY OF CUMBERLAND . I, James DeCinti, Esquire, being duly sworn according to law, depose and say that I am counsel for Plaintiff and that I am authorized to make this affidavit on behalf of said Plaintiff, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief or, are tree and correct based on the infom~ation obtained fi.om the Plaintiff. Sworn to and subscribed before me this ~:/tt day of ~)/') DLi[2IC{ ,2003. J Notary°Public My Commission Expires: James DeCinti MY COMMISSION ~RES h~y~ 255173.1~JD~DZ CERTIFICATE OF SERVICE AND NOW, this ay of January, 2003, I, Katherine D. Zimmerman, an employee of Angino & Rovner, P.C., do hereby certify that I have served a true and correct copy of the foregoing COMPLAINT in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Joseph Ricci, Esquire Farrell & Ricci 4423 North Front Street Harrisburg, PA 17110 Counsel for Defendant Carlisle Area Health and Wellness Foundation Evan Black, Esquire Thomas, Thomas & Hafer 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Counsel for David Carlton Baker, M.D. K he~n~'ne'D. Zi~an 255173.1LID\DZ GARY AMSPACHER, Plaintiff Vo DAVID CARLTON BAKER, M.D., FACS; and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to: Carlisle Hospital, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 02-2537 Civil Term JURY TRIAL DEMANDED TO: Gary Amspacher, Plaintiff c/o James DeCinti, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 Counsel for Plaintiff NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, FARRELL & RICCI, P.C. Date: --Joseph ~Ricci, Esquire '~ .At. t~°~r .n_e Y~~ .r oD~ tNs~e4e9t803 Harrisburg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Area Health and Wellness Foundation GARY AMSPACHER, Vo Plaintiff · DAVID CARLTON BAKER, M.D., FACS;: and CARLISLE AREA HEALTH AND : WELLNESS FOUNDATION, Successor to: Carlisle Hospital, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 02-2537 Civil Term JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT CARLISLE AREA HEALTH AND WELLNESS FOUNDATION TO PLAINTIFF'S COMPLAINT AND NOW COMES Defendant, Carlisle Area Health and Wellness Foundation, by and through his counsel, Farrell & Ricci, P.C., by Joseph A. Ricci, Esquire, and answers the Plaintiffs Complaint as follows: 1. Denied. After reasonable investigation Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 2. Denied. The averments contained within this Paragraph refer to a Defendant other than the Answering Defendant; accordingly, no affirmative response is required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. 3. Denied as stated. It is denied that Defendant Carlisle Area Health and Wellness Foundation, successor to Carlisle Hospital is a corporation created under the laws of the Commonwealth of Pennsylvania "for the delivery of healthcare services in Cumberland County, Pennsylvania." To the contrary, the Carlisle Area Health and Wellness Foundation is a nonprofit corporation created under the laws of Pennsylvania for charitable and educational purposes, including, but not limited to, the promotion and improvement of community health and wellness. 4. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 5. Admitted in part, denied in part. To the extent the averments contained in this Paragraph are reflected within the records of the Carlisle Hospital, they are admitted. To the extent the averments contained in this Paragraph are not reflected within the records of Carlisle Hospital, or are contradicted thereby, they are denied and strict proof thereof demanded at the time of trial, ff deemed material. 6. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 7. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 8. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 9. Denied..The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 10. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 11. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 12. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 13. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 14. Denied. It is specifically and unequivocally denied that the Answering Defendant was negligent. To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of further answer, to the extent this Paragraph is an allegation of the Plaintiffs damages, it is denied since after reasonable investigation Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial ff deemed material. WHEREFORE, Answering Defendant respectfully requests that judgment be entered in its favor and against the Plaintiff and that Answering Defendant be awarded appropriate costs and fees. COUNT I Plaintiff v. David C. Baker~ M.D. 15. Answering Defendant, Carlisle Area Health and Wellness Foundation, hereby incorporates by reference its responses to Paragraphs 1 through 14 of the Plaintiffs Complaint as if more fully set forth herein at length. 16. Denied. The averments contained within this Paragraph refer to a Defendant other than the Answering Defendant; accordingly, no affirmative response is 3 required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. WHEREFORE, Answering Defendant respectfully requests that judgment be entered in its favor and against the Plaintiff and that Answering Defendant be awarded appropriate costs and fees. COUNT II Plaintiff v. Carlisle Area Health ,,nd Wellness Foundation~ Successor to Carlisle Hospital 17. Answering Defendant, Carlisle Area Health and Wellness Foundation, hereby incorporates by reference its responses to Paragraphs 1 through 16 of the Plaintiffs Complaint as ff more fully set forth herein at length. 18. Denied. To the extent this Paragraph refers to Plaintiffs beliefs, it is denied since after reasonable investigation Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. By way of further answer, it is specifically and unequivocally denied that Defendant David C. Baker was an agent, servant or employee of Defendant Carlisle Hospital. To the contrary, at all times material hereto, Dr. David Baker was an independent contractor in relationship to the Answering Defendant. 19. Denied. The averments contained in this Paragraph are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are denied in conformity Pa.R.C.P. 1029(e). 4 20. Denied. It is specifically and unequivocally denied that the Answering Defendant "through its agents, apparent agents, servants and/or employees was negligent" in the care of the Plaintiff. To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care, within the standard of care required for treatment of patients such as the Plaintiff. By way of further answer, it is more specifically denied that: a. Denied. It is specifically and unequivocally denied that the Answering Defendant, through its agents, apparent agents, servants or employees was negligent in "[~]ailing to adequately examine and asses (sic) Plaintiffs injuries." To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care, within the standard of care required for treatment of patients such as the Plaintiff b. Denied. It is specifically and unequivocally denied that the Answering Defendant, through its agents, apparent agents, servants or employees was negligent in "[n]egligently performing surgery on Plaintiffs left elbow and wrist." To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care, within the standard of care required for treatment of patients such as the Plaintiff. c. Denied. It is specifically and unequivocally denied that the Answering Defendant, through its agents, apparent agents, servants or employees was negligent in "[~]ailing to use proper techniques when performing surgery on Plaintiffs left wrist and elbow." To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care, within the standard of care required for treatment of patients such as the Plaintiff d. Denied. It is specifically and unequivocally denied that the Answering Defendant, through its agents, apparent agents, servants or employees was negligent in "[n]egligently increasing Plaintiffs risk of permanent injury." To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care, within the standard of care required for treatment of patients such as the Plaintiff. e. Denied. It is specifically and unequivocally denied that the Answering Defendant, through its agents, apparent agents, servants or employees was negligent in "If]ailing to follow the acceptable standard of care during the surgeries performed on Plaintiff on June 1, 2000." To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care, within the standard of care required for treatment of patients such as the Plaintiff. WHEREFORE, Answering Defendant respectfully requests that judgment be entered in its favor and against the Plaintiff and that Answering Defendant be awarded appropriate costs and fees. 20. Plaintiff has fated to state a claim upon which relief can be granted. 21. Plaintiffs claim is barred and/or limited by the applicable Limitations. Statute of 6 22. It is believed, and therefore averred, that the discovery will show that the Plaintiff was negligent and that his negligence exceeded the negligence, if any, of the Answering Defendant, thereby barring recovery by operation of the Pennsylvania Comparative Negligence Act. 23. It is believed, and therefore averred, that discovery will show that the Plaintiff was negligent and that by virtue of his negligence, his claims may be limited by the operation of the Pennsylvania Comparative Negligence Act. 24. It is believed, and therefore averred, that discovery will show that the Plaintiff voluntarily assumed a known risk thereby barring recovery by the operation of the Doctrine of Assumption of Risk. 25. Plaintiffs injuries, ff any, were sustained as a result of natural or unknown causes and not as the result of any action or inaction on behalf of the Answering Defendant. 26. At all times material hereto, Answering Defendant provided full, complete, proper, reasonable and adequate medical care and treatment in accordance with the applicable standard of care. 27. No conduct on the part of the Answering Defendant was a substantial factor in causing or contributing to any harm which the Plaintiff may have suffered. 28. If Plaintiff suffered any damage, the damages were caused by the conduct of others over whom the Answering Defendant had no control or right to control. 29. Ali claims and causes of action pleaded against the Answering Defendant are barred by Plaintiffs knowing and voluntary informed consent to the care in question. 7 30. All physicians rendering medical care or treatment to the Plaintiff were independent contractors in relationship to the Answering Defendant and were not the agents, ostensible agents, servants or employees of Answering Defendant. 31. Insofar as any agent, servant or employee of the Defendant Carlisle Area Health and Wellness Foundation, or any person for whom it is or may be vicariously liable, elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, then said Defendant raises the "two schools of thought" defense. 32. To the extent it was required to do so, the Answering Defendant took all reasonable and necessary steps to make a proper and appropriate diagnosis and to the extent it may be determined that that diagnosis was in error, the Answering Defendant asserts that the error in diagnosis was a reasonable and legally justifiable error. Respectfully submitted, FARRELL & RICCI, P.C. ~'~ seph A.'~ci, Esquire _Att,~r~ey I.D.)qo. 49803 ~'~ka .... n~-~l~. Barone, Esq~e Attorney I.D. No. 68921 4423 No~h Front Street Har~sburg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Area Health and Wellness Foundation M-213 VERIFICATION I, M. Elizabeth Clever, Executive Director of Carlisle Health and Wellness Foundation, hereby verify that the facts set forth in the foregoing Answer with New Matter to Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. CARLISLE HEALTH AND WELLNESS FOUNDATION Date: · Name: M~. Elizabeth Clever Title: Executive Director Carlisle Health and Wellness Foundation .CERTIFICATE OF SERVICE AND NOW, this ~ ~ q4-~ay of January, 2003, I, Joseph A. Ricci, Esquire, hereby certify that I served a true and correct copy of the foregoing Answer with New Matter upon all counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: James DeCinti, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 Evan Black, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 ci, Esquire THOMAS, THOMAS & HAFER, LLP By: Evan Black, Esquire Identification No. 17884 By: Stephanie L. Hersperger, Esquire Identification No. 78735 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant David C. Baker, M. D., FACS GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 02-2537 CIVIL TERM JURY TRIAL DEMANDED AND NOW, comes the parties to the above-captioned action,, through their undersigned counsel, to agree and stipulate that subparagraph 16(e) is stricken from Plaintiff's Complaint and subparagraph 16(d) is amended to state "Negligently increasing Plaintiff's risk of permanent injury under the facts and circumstances described herein." Date: [ / ~..."'1[ 0'~ James eC~nt~, sqmre Counsel for Plaintiff Step]hanie L. Hersperger, Esquire Counsel for Defendants GARY AMSPACHER, Plaintiff Vo DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF' COMMON PLEAS OF CUMBERL,~ND COUNTY, PENNSYLVANIA CWIL AC, TION - LAW NO. 02-2537 CIVIL TERM JURY TRIgd_, DEMANDED CERTIFICATE OF SERVICE I, Ashleigh E. Oates, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: James DeCinti, Esq. Angino & Rovner, P. C. 4503 North Front Street Harrisburg, PA 17110 Joseph A. Ricci, Esq. Farrell & Ricci, P. C. 4423 North Front Street Harrisburg, PA 17110 Date: Ashleigh E. Oate~3 :179808.2 GARY AMSPACHER, Plaintiff Vo DAVID CARLTON BAKER, M.D., FACS, and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 02-2537 CB/IL TERM JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT CARLISLE AREA HEALTH AND WELLNESS FOUNDATION AND NOW, comes Plaintiff, by and through his counsel, Angino & Rovner, P.C., and hereby replies to the New Matter of Defendant, Carlisle Area Health and Wellness Foundation, as follows: 20. The allegation contained in this paragraph is a conclusion of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiff has failed to state a claim upon which relief can be granted. 21. The averment contained in this paragraph is a conclusion of law and of fact to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiff's claim is barred and/or limited by the applicable statute of limitations. On the contrary, Plaintiff's claim is timely filed. Strict proof of this defense and all of defendant's affirmative defenses is demanded at the time of trial. 22. The averment contained in this paragraph is deemed denied pursuant to Pa. R.C.P. 1030. 257259.1XJD\DZ 1030. 1030. 23. The averment contained in this paragraph is deemed denied pursuant to Pa. R.C.P. 24. The averment contained in this paragraph is deemed denied pursuant to Pa. R.C.P. 25. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the time of trial. 26. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the time of trial. 27. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the time of trial. 28. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the time of tried. 29. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments 257259.1 ~3DkDZ contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the time of trial. 30. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the time of trial. 31. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the time of trial. 32. The averment contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, the averments contained in this paragraph are specifically denied. Strict proof of this defense and all of Defendant's affirmative defenses is demanded at the Date: time of trial. Respectfully submitted, ANGINO & ROVNER, P.C. James DeCinti, Esquire I.D. No. 77421 4503 N. Front Street Hamsburg, PA 17110 (717) 238-6791 Attorney fbr Plaintiff 257259.1~D\DZ 3 an employee of Angino & Rovner, P.C., do hereby certify that I have served a true and CO1Tect copy of the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT CARLISLE AREA HEALTH AND WELLNESS FOUNDATION in the United States mail, postage prepaid, at HalTisburg, Pennsylvania, addressed as follows: Joseph Ricci, Esquire Farrell & Ricci 4423 North Front Street Harrisburg, PA 17110 Counsel for Defendant Carlisle Area Health and Wellness Foundation Evan Black, Esquire Thomas, Thomas & Hafer 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108~0999 Counsel for David Carlton Baker, M.D. Katherine D. Zimm~nnan 257259.1 ~JD'~DZ 4 THOMAS, THOMAS & HAFER, LLP By: Evan Black, Esquire Identification No. 17884 By: Stephanie L. Hersperger, Esquire Identification No. 78735 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant David C. Baker, M. D., FACS GARY AMSPACHER, Plaintiff DAVD CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - LAW NO. 02-2537 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: James DeCinti, Esq. Angino & Rovner, P. C. 4503 North Front Street Harrisburg, PA 17110 You are hereby notified that you are required to respond to the enclosed Answer with New Matter to Plaintiff's Complaint within twenty (20) days of service or judgment may be entered against you. THOMAS, THOMAS & HAFER, LLP By: Stephadie L. Hersperger, Esqu' e THOMAS, THOMAS & HAFER, LLP By: Evan Black, Esquire Identification No. 17884 By: Stephanie L. Hersperger, Esquire Identification No. 78735 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant David C. Baker, M. D., FACS GARY AMSPACHER, Plaintiff Vo DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2537 CIVIL TERM JURY TRIAL DEMANDED Defendant, David C. Baker, M. D., FACS (hereinafter referred to as "Answering Defendant"), by and through his counsel, Thomas, Thomas & ttafer, LLP, responds to Plaintiff's Complaint, and in support of the same, avers as follows: 1. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the troth of the allegations contained in this paragraph of Plaintiff's Complaint and the same are deemed denied and strict proof demanded at the time of trial. 2. Admitted. 3. The averments contained in this paragraph are directed toward Defendants other than Answering Defendant and, therefore, no response is required. 4.-13. Denied. The allegations contained in these paragraphs of Plaintiff's Complaint are denied generally pursuant to and in accordance with Pa. R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 14. The allegations contained in this paragraph are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, after reasonable investigation, Answering Defendant, Dr. Baker, is without knowledge or information sufficient to form a belief as to the truth of the allegations of Plaintiff's injuries and/or damages as contained in this paragraph of Plaintiff's Complaint and the same are deemed denied and proof demanded at the time of trial. Moreover, with respect to his professional involvement in this matter, Answering Defendant, Dr. Baker, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that he was in no way negligent, or otherwise caused or contributed to cause any injury or damage to Plaintiff, Gary Amspacher. Answering Defendant, Dr. Baker, further denies these allegations pursuant to Pa. R.C.P. 1029(e) and strict proof is demanded at the time of trial. WHEREFORE, Plaintiff without cost to him. Answering Defendant demands judgment in his favor and against COUNT I Plaintiff v. David C. Baker~ M.D. 15. Answering Defendant hereby incorporates his responses to Paragraphs 1 through 14 of this Answer as if fully set forth herein. 16. Denied. The allegations contained in this paragraph and subparagraphs are conclusions of law as opposed to statements of fact and no response is required. Nonetheless, with respect to his professional involvement in this matter, Answering Defendant, Dr. Baker, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that he was in no way negligent, or otherwise caused or contributed to cause any injury or damage to Plaintiff, Gary Amspacher. Answering Defendant, Dr. Baker, further denies these allegations pursuant to Pa. R.C.P. 1029(e) and strict proof is demanded at the time of trial. See also Stipulation between Plaintiff and Answering Defendant regarding Plaintiff's Complaint which :is incorporated herein and a true and correct copy which is attached hereto and marked as Exhibit "A". WHEREFORE, Answering Defendant demands judgment in his Plaintiff without cost to him. favor and against COUNT II Plaintiff v. Carlisle Area Health and Wellness Foundation~ Successor to Carlisle Hospital Answering Defendant hereby incorporates his responses to Paragraphs 1 through 17. 16 of this Answer as if fully set forth herein. 18.-20. The averments contained in these paragraphs and subparagraphs are directed toward Defendants other than Answering Defendant and, therefore, no response is required. To the extent an answer is deemed required, Answering Defendant, Dr. Baker, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that he was in no way negligent, or otherwise caused or contributed to cause any injury or damage to Plaintiff, Gary Amspacher. WHEREFORE, Answering Defendant demands judgment in his favor and against Plaintiff without cost to him. NEW MATTER By way of further response to the allegations contained in Plaintiff's Complaint, Answering Defendant hereby raises the following New Matter in accordance with Pennsylvania Rule of Civil Procedure 1030: 21. The Answering Defendant incorporates by ret~,rence Paragraphs 1 through 20 above as though the same were set forth herein at length. Plaintiff's Complaint fails to state a claim upon xvhich relief can be granted. Plaintiff's claims are barred by the applicable statute of limitations 42 Pa. C.S.A. 22. 23. §5524. 24. Any acts or omissions of the Answering Defendant alleged to constitute negligence and/or carelessness and/or malpractice were not the substantial causes or factors of the subject incident and/or did not result in any incident or injmfes alleged by Plaintiff. 25. If the Plaintiff sustained injuries or damages or alleged, said allegations being specifically denied, said injuries were caused by Plaintiff's fifilure to exercise reasonable care under the circumstances and, therefore, Plaintiff's claims are barred or reduced by the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. §7102. 26. If Plaintiff suffered injuries as alleged, such allegations being specifically denied, Plaintiff's injuries were caused by persons, entities, occurremces, instrumentalities or events unrelated to and not under the control of the Answering Defendant. 27. The Answering Defendant is entitled to and assert all defenses on limitations and damages which are available to him under the Health Care Services Malpractice Act, 40 Pa. C.S.A. §1301.1.01. et seq. 28. The Answering Defendant at all times material hereto, acted in a careful, reasonable, and prudent manner consistent with the required standard of care and was in no way negligent or careless. 29. The Answering Defendant is entitled to and incorporates herein by reference the defenses contained in the Federal Health Care Quality Improvement Act, P.L. 99-660. 30. The injuries and/or damages alleged to have been sustained by the Plaintiff were not proximately caused by the Answering Defendant. 31. Pa. R.C.P. 238 for delay damages is inapplicable under the facts of the present case and is unconstitutional and in violation of the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. 32. Answering Defendant asserts for the purpose of preserving the same and subject to discovery, all or some of Plaintiff,s claims may be barred pursuant to the affirmative defenses of release, offset, or accord and satisfaction. 33. Plaintiff,s claims, the existence of which is specifically denied by the Answering Defendant, may be reduced and/or limited by any collateral source of compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Crozer Chester Medical Center. 34. At all times relevant hereto, the Answering Defendant acted within and followed the precepts of a school of thought followed by a considerable number of qualified and well respected specialists in the field and, accordingly, his professional conduct was fully commensurate with the applicable standard of care. Evidence at trial may establish two or more schools of thought applicable to the issues presented in this case. 35. In the event that it is determined that the Answering Defendant was negligent with regard to any of the allegations contained in and with respect to the Plaintiff's Complaint, said allegations being specifically denied, discovery may establish that said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than the Answering Defendant and over whom said Answering Defendant had no control, right of control, or responsibility and, therefore, Answering Defendant is not liable. 36. To the extent that the evidence may show that other persons, partnerships, corporations, or other legal entities caused or contributed to the injuries or the pre-existing condition of the Plaintiff, then the conduct of the Answering Defendant was not the legal cause of such conditions or injuries. 37. Answering Defendant is entitled to and assert all defenses available to him under the Fair Share Act, 42 Pa. C.S. §7102B. Answering Defendant incorporates the Stipulation of Counsel attached hereto as 38. Exhibit "A." 39. Plaintiff's injuries and/or damages, if any, were caused in whole or in part, as may be revealed by subsequent discovery in this matter, as pre-existing physical and/or medical conditions and not by any act or omission on the part of Defendant. 40. Plaintiff's claims may be barred totally, or in part, by the application of the Medical Care Availability and Reduction of Error (Mcare) Act. Act 13 of 2002. 41. Defendant asserts all of the defenses and immunities afforded under the Medical Care Availability and Reduction of Error Act. Act 13 of 2002. WHEREFORE, the Answering Defendant denies any' and all liability to any party whatsoever, demands that the case be dismissed with prejudice, and that judgrnem be entered in his favor. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP EVP~N BEg_CK, ESQUIRE STEPHANIE L. HERSPERGER, ESQUIRE Attorneys for Defendant David C. Baker, M. D., FACS DATE:~j~D_.~ THOMAS, THOMAS & HAFER, LLP By: Evan Black, Esquire identification No. 17884 By: Stephanie L. Hersperger, Esquire Identification No. 78735 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 441- 7051 Attorney for Defendant David C. Baker, M. D., GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants C..-_ --.-C *ACS 7:7 F'I~. IN THE COURT OF COMMON PLUS O?~ CUMBERLAND COUNTY, PENNSYLVANIA CIV. tJ.~ ACTION NO. 02-2537 CWIL TERM JURY TRIAL DEMANDED AND NOW, comes the parties to the above-captioned action, through their undersigned counsel, to agree and stipulate that subparagraph 16(e) is stricken from Plaintiff's Complaint and subparagraph 16(d) is amended to state "Negligently increasing Plaintiff's risk of permanent injury under the facts and circumstances described herein." Counsel for Plaintiff Stephanie L. Hersperger, Esquire Counsel for Defendants GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 02-2537 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Ashleigh E. Oates, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: James DeCinti, Esq. Angino & Rovner, P. C. 4503 North Front Street Harrisburg, PA 17110 Joseph A. Ricci, Esq. Farrell & Ricci, P. C. 4423 North Front Street Harrisburg, PA 17110 Ashleigh E. Oates,,}~3 :179808.2 GARY AMSPACHER, Plaintiff DAVID CARLTON BAKER, M.D., FACS AND CARLISLE REGIONAL MEDICAL CENTER, SUCCESSOR TO CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-25:37 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Ashleigh E. Oates, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: James DeCinti, Esq. Angino & Rovner, P. C. 4503 North Front Street Harrisburg, PA 17110 Joseph A. Ricci, Esq. Farrell & Ricci, P. C. 4423 North Front Street Harrisburg, PA 17110 Date: Ashle'gh ~s :179808.2 GARY AMSPACHER, Plaintiff Vo DAVD CARLTON BAKER, M.D., FACS, and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 02-2537 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned action as discontinued with prejudice. Date: Respectfully submitted, ANGINO & ROVNER, P.C. James DeCinti, Esquire I.D. No. 77421 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 258052.1 ~JD\DZ an employee of Angino & Rovner, P.C., do hereby certify that I have served a true and correct copy of the foregoing PRAECIPE TO DISCONTINUE in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Joseph Ricci, Esquire Farrell & Ricci 4423 North Front Street Harrisburg, PA 17110 Counsel for Defendant Carlisle Area Health and Wellness Foundation Evan Black, Esquire Thomas, Thomas & Hafer 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Counsel for David Carlton Baker, M.D. 258052.1 ~JD'xDZ