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IN THE COURT OF COMMON PLEAS
"'OR CUMBERLAND COUNTY. PENNSVLVANIA
CIVIL mVISION
I'RAECU"E TO mSCONTINUE
Arthur T, Smith
Plalmlff(s)
CASE NO, 95-3071
vs.
Georve R, Roth. Jr.. M,D.. Bertrand U, Guilllan. M,D..
and Central PA MRI Center
Defendanl(s)
TO THE PROTHONOTARY:
Please mark Ihe ahove mailer discontinued with prejudice pursuant 10 Pa,R,C,P, 229 and cosls
paid,
Allorney for Defendants
THIS MAITER WAS INDEXED FOR THE FOLLOWING:
A TLEE & HALL
Arbilration A ward (dale)
Default Judgment (dale)
Lis Pendens (date)
Olher (dale)
d4'
Dan M, Brookhart. Esq,
Allorney for Plainllff
NOTE: Slgnalure of Defendanl(s) Counsel, Additional Defendant(s) Counsel needed if case hal
an Addillonal Defendanl. Counterclaim or Crossclalm(s),
mSCONTINUANCE CERTlFICAn:
AND NOW. f Jo fj'/
,
suit has hcen marked liS ahove directed,
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095,141120006595
Thomas W, Hall, Esquire
ATLBB & HALL
8 Nonh Queen Slreel
P. O. Box 449
Lancasler, PA 17608-0449
(717) 393-9596
ID No. 33092
Attorney for Plalnllff
ARmUR T. SMlm,
Plaintiff,
IN mE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PBNNSYLV ANIA
CIVIL ACTION - LAW
v,
-
NO,: 'i y. .iO"lI Cl,,:./ U'h~
GEORGE R. Rom, JR.. M,D"
Neurological Surgery, LId.
920 Century Drive
Mechanlesburg, PA 17055
NEUROLOGICAL SURGERY, LTD.,
920 Century Drive
Mechanlesburg, PA 17055
BERTRAND B, OIUUAN, M,D..
Cenlral PA MRJ Cenler
4465 Trlndle Road
Mechanlesburg, PA 17055
CENTRAL PA MRJ CENTER,
4465 Trlndle Road
Mechanlesburg, PA 17055
Defendants,
JURY TRIAL DHMANDBD
NOTICE
You have been sued In coun. If you wish 10 defend againstlhe claims sel forth Inlhe following
pages, you IIlUSt take aellon wilhln Iwenly (20) days after this complalnl and notice are served, by
enlering a wrillen appearance personally or hy allomey and filing In wrillng with Ihe coun your
defenses or objections 10 Ihe claims scl forth agalnsl you, You are warned that If you fall 10 do so the
case may proceed withoul you and a judgmclllmay he el1lel'C(l agalnsl you hy the court wlthoul funher
895,141\20006595
notice for any money claimed In Ihe complainl or for any olher claim or relief requested by Ihe plaintiff,
You may lose money or property or olher rights Importanllo you.
YOU SHOULD TAKB TInS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT
HAVB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TBLBPHONB TIlE OFFICE SET
FORTH BELOW TO FIND OUT WHBRB YOU CAN GET LEGAL HELP.
Court Admlnlslmlor
Cumberland County Courthouse, 41h Floor
Carlisle, PA 17013
(717) 240-6200
095-141 \20006595
Thomas W, Hall, Bsquilll
ATLBB & HALL
8 North Queen Slroet
P. 0, Box 449
Lancaster, PA 17608.0449
(717) 393.9596
ID No, 33092
AlIomey for Plaintiff
ARllIUR T, SMIllI,
Plaintiff,
IN llIB COURT OF COMMON PLBAS
CUMBBRLAND COUNTY, PBNNSYLV ANlA
CIVIL ACTION - LAW
v.
NO,: /,'. ii' ,'/ C,,,,J -r~~
GBORGB R, ROlli. JR" M,D..
Neurolo81cal SU'llery, Ud.
920 Cenlury Drive
MechanlcsbUIi, PA 17055
NEUROLOGICAL SURGERY. LTD"
920 Cenlury Drive
Mechanlcabura. PA 17055
BBRTRAND B, GlUUAN, M,D,.
Cenlral PA MRJ Center
4465 Trlndle Road
Mechanicabur8, PA 17055
CENTRAL PA MRJ CENTER.
4465 Trlndle Road
Mechanicsbuli. PA 17055
Defendanla,
JURY TRIAL DBMANDBD
l,;OMI'IJAlNT
I, Arthur T, Smith la an adult individual who Illsidealn Fmckville, Schuylkill
Counly. Penruylvunia,
095,141120006595
2. Defendanl George R, Rolh, Jr" M,D,. is a physician licensed 10 pmclice
medicine in Ihe Commonwealth of Pennsylvania, Is a spccialislin neurosurgery, and pmclices
medicine In Mechanicsburg, Cumberland Counly. Pennsylvania,
3. Defendant Neurological Surgery, Ud, is Ihe medical group In which
Defendanl ROlh pmctices and it has office in Mechanicsburg, Cumberland Counly, Pennsylvania,
4. At all limes relevanllo Ihis Complainl, Defendanl Rolh was an officer,
employer, servanl or agenl and/or apparent employee, apparenl servanl or apparenl agenl of
Defendanl Neurological Surgery, Ud.
S, Defcndanl Bertrand 8, Giulian. M,D" Is a physician licensed to pmctice
medicine In Ihe Commonwealth of Pennsylvania, is a speclalisl In mdiology, and pmcllces
medicine as an employee, servanl, or agenl and/or apparenl employee, apparenl servanl, or
apparenl agenl of Defendanl Cenlml PA MRI Cenler,
6, Defendanl Cenlral PA MRI Cenler Is a mdlology business with offices
localed In Mechanlcsburg. Cumberland Counly, Pennsylvania, and a corpomle mailing address
In Camp Hill, Cumberland Counly, Pennsylvania,
7. Alllhe evenls complained of In Ihis Complain I occurred on or after June
13,1993,
8. AI thalllmc. Arthur T. Smith wenllo Ihe Emergency Departmenl of Holy
Splril Hospital, complaining of chesl palus radiating up his chesl Inlo his neck and head and
down his left ann. beginning Ihe day before,
9. Mr, Smith also reponed having passed OUI for a couple of seconds,
B9S,I41 \20006S9S
10. Mr. Smith complained Ihal Ihe neck and head pain was worse Ihan Ihe
chesl pain,
II. A CT scan was ordered, and Mr, Smith was evalualed by Defendant ROlh.
12. The CT scan of the head wilhoul conlrasl showed a large hyper-dense mass
measuring up 10 9 mm conslstenl with Ihe presence of a basilar aneurysm,
13, The CT of Ihe head did nol reveal evidence of obvious sub-arachnoid
hemorrhage, bUI recommended additlonallesllng If Ihere was a high cllnleal suspicion of same.
14. The radlologlsl who reviewed Ihe CT of Ihe head wilhoul conlrast
recommended MRI angiography for conflnnatlon and further delineation.
IS. Defendanl Rolh advised Mr. Smith 10 have Ihe MRI angiography done at
Defendant Central PA MRI Cenler, and Mr, Smith did so.
16. The MRI angiography perfonned al Defendanl Central PA MRI Cenler was
ready by Defendanl Benrand 8, Glullan and Defendant Roth,
17. 80lh Defendants Incorrectly read Ihe MRI angiography as nonnal.
18, Defendanl Rolh lold Mr, Smilh Ihal Ihere was nOlhlng wrong, and he
discharged him with no recommendallons for follow-up.
19, In Augusl, 1993, Mr, Smilh collapsed In his apartmenl, and he was not
found and did nol regain consciousness for Iwo days.
20, After regaining consciousness, an ambulance was summoned,
21. A suhsequenl CT scan showed subarachnoid hemorrhage secondary to the
basilar artery aneurysm,
3
09S-141\20006S9S
22, Mr, Smith was lransferred 10 Geisinger Medical Cenler,
23. After admission 10 Ihe Neurosurgical SelVlce al Gelsinger Medical Cenler,
anolher angiogram was done IlIal revealed a 3 10 4 cm oblong lobulaled aneurysm atlhe basilar
tip.
24. Mr. Smith was immediately taken Inlo emergency surgery for a righl
lemporal cranlolomy and clipping of Ihe basilar tip aneurysm, with such surgery perfonned by
Dr. Martin of Geisinger Medical Cenler,
25, Mr. Smith posl-operalively was admitled to Ihe Inlenslve Care Unll of
Geisinger Medical Cenler and placed on Dilantln and Decadron.
26. He had rig hi facial palsy and Ihe righl pupil was dilated,
27. He was lransferred 10 the Special Care Unit and slowly progressed,
28. On August 23, 1993, Mr. Smllh was transferred 10 Ihe regular hospital
floor,
29. 011 AuguSl27, 1993. Mr. Smith was lransferred 10 Ihe Rehabilitation Unll
al Geisinger Medical Cenler because of limited ablllly 10 move his left upper extremities
following the surgery.
30. Mr, Smith experienced cognitive del1c1ls wilh memory, abstract reasonlna.
problem solving and speech.
31. Mr. Smith was al Geisinger Medical Cenler Rehabilitation Center from
Augusl27, 1993, when he was discharged from Geisinger Medical Cenler, until Seplember
1993, where he had physical and occupallollallhernpy Iwlce a day,
4
89'.141120006'9'
32. Mr, Smith was again admitted 10 Geisinger Medical Cenler on Seplember
IS, 1993, complaining of IIghlheadedness and dizziness,
33, Tesls done allhat time shoed mild dllalallonof Ihe venlrlcular syslem,
34, Addlllonally, right temporal slowing was nOled,
3.5, Mr, Smllh was discharged from Gelsinger Medical Center on Seplember
17, 1993 with similar gaze palsy as aOer Ihe operation,
36, Mr. Smith was off work from Augusllhrough Oclober, 1993,
37, AOer Mr, Smlth's return 10 work. he developed double vision and
headaches,
38, Follow up compulerlzed lomography scan showed a basilar region denslly
and cerebral angiogram showed perslslenl basilar lip aneurysm.
39. Because Dr, Martin believed further surgery 100 dangerous, In AUIlUSI.
1994, he referred Mr, Smith 10 Massachusetts Generalllospital for endovascular trealmenl of
the basilar lip aneurysm, since Ihe clip used In Ihe previous surgery had moved,
40. Nlnely.e1ahl percent of lhe aneurysm was occluded uslnglhls Icchnlque.
41. Mr, Smllh was discharged on Seplember 4, 1994,
42, lie had followed up with Dr, Martin who did Ihe orla1nal surgery al
Oelslnller Medical Center,
43, nle Defendanls' failure to diagnose and lreallhe basilar Irlp aneurysm In
June, 1993, allowed the aneurysm 10 progress and spread,
.5
095,141\20006595
44, The Defendants' failure 10 Ilmely diagnose and treal Mr. Smith's basilar
lip aneurysm llXIulrcd Ihal he have emergency surgery to clip off an eXlremely large aneurysm
Ihal had grown slgnlncanlly since June. 1993,
45, The Defendants' failure 10 limely diagnose Mr, Smith's basilar tip
aneurysm Increased Ihe risk Ihallhe clip placed on Ihe aneurysm would come dislodged, as It
did.
46, nle Defendanls' failure tlllimely diagnose and treal Mr, Smith's basilar
tip aneurysm increased the risk Ihat he would require further neurosurgical procedures. which
he has,
47, The Defendants' negligence in the care and lreatmenl of Arthur T. Smith
was Ihe proxlmale cause of the damages he has suffered as set forth more fully herein.
COUNT X
Arthur T. Smith v. Georlle R. Roth. Jr.. M.D.
48, Paragraphs I Ihrough 47 of Ihe Complainl are Incorporaled herein by
reference,
49, Defendanl rolh aCled negligenlly with respecl to Mr. Smith by:
a, falling 10 properly read Ihe magnelic resonance angiography 10
diagnose basilar tip aneurysm;
b. failing to properly read the magnelic resonance angiography 10
diagnose subarachnoid hemorrhage;
6
095,141120006595
c, falling 10 order a lumbar puncture 10 exclude Ihe posslbllily of
subarachnoid hemorrhage;
d, falling 10 order labllralory lesls 10 exclude subarachnoid
hemorrhage;
e. falling 10 order follow up CT scan of Ihe head;
f, falling 10 follow up Ihe asymmelry of Ihe ventricular syslem noled
on Ihe original CT of Ihe head done June 13, 1993;
g. failing 10 order follnw up lesllng for whal was diagnosed on the
June 13, 1993 CT scan of Ihe head as an apparenl aneurysm;
h, falling 10 advise Mr, Smith 10 conllnue 10 monitor Ihe apparenl
aneurysm;
I. failing 10 warn Mr, Smith of the possibility Ihal If Ihe aneurysm
grew In size, it mlghllnlerfere wllh his functioning; and
j, falling to advise Mr. Smith Ihallhe larger the aneurysm became,
Ihe more likely exlenslve surgery would be needed and Ihal a clip placed on II would move and
require additional surgery.
WHEREFORE, Plaintiff demands judgmenl agalnsl George R, ROlh, Jr., M,D., In an
amounlln excess of Ten Thousand Dollars ($10,000,00), exclusive of Interest and cosls, and In
excess of any jurisdlcllonal amounl requiring compulsory arbitral Ion.
7
895,141\20006595
COUNT II
Arthur T. Smith \'. Neuroloalcal Suraerv. Ltd.
50. Paragraphs I Ihrough 47 and Counll of Ihe Complalnl are Incorporated
herein by reference,
51. AI all times relevanllo Ihls Complalnl. Defendanl ROlh was an officer,
employee, servanl or agent and/or apparent employee, apparenl servanl or apparenl agenl of
Defendanl Neurological Surgery, Ud,
52. Defendanl Neurological Surgery, Ud., by Defendanl ROlh, aCled
nelllillently In the care and trealment lllven 10 Mr. Smith as sel forth In parallraph 49 above,
Incorporaled herein by reference.
WHBRBFORB, Plalnllff demands judllmenl allalnsl Neurological Surgery, Ltd.,
In an amounlln excess of Ten Thousand Dollars ($10.000,00), exclusive of Interest and cosls,
and In excess of any jurlsdlcllonal amounl requiring compulsory arbitration,
COUNT 111
Arthur T. Smith \'. Bertrand B. Glulian. M.D.
53. Paragraphs I through 47. Counly I and Count II of Ihe Complalnl are
Incorporaled herein by reference.
54. Defendanl Bertrand B. OIullan, M,D.. acted negligently In respccllo Mr,
Smith by:
a, failing 10 property read Ihe magnetic resonance angiography 10
diagnose basilar lip aneurysm;
h
!
8
095,141\20006595
b, failing 10 properly read Ihe magnelic resonance angiography 10
diagnose subarachnoid hemorrhage;
c, failing 10 order a lumbar punclure 10 exclude Ihe possibillly of
subarachnoid hemorrhage;
d, failing 10 order laboralory lesls 10 exclude subarachnoid
hemorrhage;
e, failing 10 order follow up CT scan of Ihe head;
f. failing 10 follow up Ihe asymmelry of Ihe venlrlcular syslem noled
on Ihe original CT of the head done June 13, 1993;
g. falling to order follow up testing for whal was diagnosed on Ihe
June 13, 1993 CT scan of Ihe head as an apparenl aneurysm;
h, failing 10 advise Mr, Smith to continue 10 monllor Ihe apparenl
aneurysm;
I. failing to warn Mr. Smllh of the possibility thai If Ihe aneurysm
grew In size, It mlghllnlerfere with his functioning; and
j, falling 10 advise Mr. Smith thallhe larger Ihe aneurysm became,
Ihe more likely Ihal a clip placed on II would move and require additional surgery.
WHBRBFORB, Plaintiff demands judgment agalnsl Bertrand 8, Glullan, M.D"
In an amounlln excess of Ten Thousand Dollars ($10,000.00), exclusive of Inleresl and cosls,
and In excess of any jurlsdlclional 'IInounl requiring compulsory arbllralloll,
9
D9~.141 \20006~9~
COUNT IV
Arthur 1'. Smith ~. CentrallJA MRI Center
55. Paragraphs I Ihrough 47, and Counts I, II and III of Ihe Complalnl are
IncOlporated herein by reference,
56, At all limes relevant 10 this Complalnl, Defendant Bertrand B, Glullan,
M,D. was Ihe employee, selVanl or agenl, and/or apparenl employee, apparent sclVanl and
apparenl agenl of Defendant Cenlral PA MRI Cenler,
57. Defendanl Cenlral PA MRI Cenler by Defendanl Glullan acled negllgently
In Ihe care and lreatmenl given 10 Mr. Smith as sel forth in paragraph 54 above, Incorporaled
herein by reference,
WHBRBPORB, Plaintiff demands judgmenl agalnsl Central PA MRI Cenler In
an amounlln excess of Ten Thousand Dollars ($10.000.00), exclusive of Inleresl and cosls, and
in excess of any jurisdlcllonal amounl requiring compulsory arbllrallon,
CLAIM I
Arthur T. Smith ~. Geol'lle K. Roth. .rr.. M.n..
Bertl'llnd B. Glullan. M.n.
58, Paragraph I through 47 and Counts I, II, III and IV of Ihe Complaint are
Incorporaled herein by reference,
59, As a result of Ihe negllgenl acllons of Ihe Defendanls, Plalnllff Arthur T,
Smith has suffered severe hann by Incurring expenses for pasl medical care and trealmem as
well as future medical cllre and treatment, and claim Is made Iherefor,
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095-14 I \20006m
60, As a result of Ihe aforesaid negligence of Ihe Defendanls, Plalnllff Arthur
T, Smhh has suffered severe pain and sUffering. loss of life's pleasure, embarrassment,
humlllallon, and greal Inconvenience In carrying oul his dally aCllvhles, and claim Is made
therefor,
61. As a result of Ihe aforesaid negligence of the Defendanl, Plaintiff Arthur
T. Smhh has suffered pcrnlanent Injuries resulllng In fUlure pain and suffering, loss of lIefs
pleasure, embarrassmenl and humiliation, and fUlure great inconvenience In calT)'lng oul his
dally activities, and claim Is made Iherefor.
62, As a result of Ihe aforesaid negllgenl acts of Ihe Defendanls, Plaintiff
Arthur T. Smhh has suffered pasl and future loss of earnings and earning capachy, and claim
Is made Iherefor.
WHERBFORB, Plalnllff demands judgmenl against George R, ROlh, Jr" M. .D.,
and Bertrand B, Giullan, M.D, In an amounl in excess of Ten Thousand Dollars ($10,000,00),
exclusive of Inleresl and costs, and In excess of any jurisdlcllonal amounl requiring compulsory
arbltrallon,
~:1
By: '. .... Ul W
Thomas W, Hall
Allorney for Plaintiff
8 North Queen Strcel
p, O. Box 449
Lancaster, PA 17608-0449
(717) 393-9596
10 No, 33092
II
095,141\20006595
VnRlFICATION
I hereby verify Ihal Ihe facts conlained In Ihe foregoing Complainl are true and correcl
10 Ihe beSI of my knowledge, infonnalion and belief, I understand Ihal false stalemenls herein
are made subjecllo Ihe penalties of 18 Pa,C,S,A, I 4904 relating 10 unsworn falsilicallon 10
aUlhorlties,
Dated: If / ~, . (15
~.-7JLt.t
Arthur T. Smith
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301 NORTH rRONT STAHT
p 0, 10M an
HARRISBURG, PA 17108
THOMAS, THOMAS' HAFER
BY' S.I.h W, Aloa.II, Eaqulre
IDENTIFICATION NO, 68797
306 Nolth Front Btfott
P,O. Boo BBB
HI"llbur8, PA 17108,0899
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSVLVANIA
CIVIL ACTION - LAW
ARTHUR T, SMITH,
Plaintiff
GEORGE R. ROTH, JR" M,D.,
NEUROLOGICAL SURGERV, LTD.,
BE1,l'RAND B. GIULIAN, M.D" and
CENTRAL PA MRI CENTER,
Defendants
NO. 95-3071 CIVIL TERM
JURV TRIAL DEMANDED
PIAICIPI rOR INTRY or APPIARANCI
TO THE PROTHONOTARV,
Please enter the appearance of the undersigned a8 attorneY8
for Central Pa. MRI Center in the above matter.
THOMAS, THOMAS . KArll
BYId?f~~~!f{.
1.0,1158797
305 North Front Street
P,O. Box 999
Harrisburg, FA 17108 - O!l!lll
(717) 255-7613
Attorneys for Defendant,
Central Fa. MRI Center
DATE I "/~i'~-
CIRTIrICATI or SIRVICI
I, SARAH W. AROSELL, ESQUIRE, hereby certify that: I have
served a true and correct copy of the foregoing PRAECIPE FOR ENTRY
OF APPEARANCE on the following person by placing same in the United
States mail, postage prepaid, on the ~1I-day of ~..~ , 19951
Thomas W. Hall, Esquire
ATLII " HALL
8 North Queen Street
P.O. Box 449
Lancaster, PA 17608-0449
Attorneys for Plaintiff
S. Walter Foulkrod, III, Esquire
S. WALTIR rOULKROD, III " ASSOCIATIS
2215 Forest Hills Drive, Suite 35
P,O. Box 6600
Harrisburg, PA 17112-0600
,
Neurological Surgery, Ltd.
920 Century Drive
Mechanicsburg, PA 17055
THOMAS, THOMAS " KArlR
Byr ~.It~~(~
Sara W. Arose I Esqu re
S, WALTBk FOULKROD, III, BSQUIRB
Pa, Supreme Court 1.0, No, 01982
S. WALTBR FOULKROD, IV, BSQUIRB
Pa. Supreme Court 1.0, No, 65207
S. WALTBR FOULKROO, III & ASSOCIATBS
2215 Forest Hills Drive - Suite 35
Post Office Box 6600
Harrisburg, Psnnsylvania 17112,0600
Telephone I (717) 541-0400
Fax. [717) 541-1727
ARTHUR T. SMITH,
Plaintiff,
v.
GEORGE R. ROTH, JR., M.D.,
Neurological Surgery, Ltd.,
920 Century Drive
Mechanicsburg, PA 17055
NEUROLOGICAL SURGERY, LTD.,
920 Century Drive
Mechanicsburg, PA 17055
BERTRAND B. GIULIAN, M.D.,
Central PA MRI Center
4465 Trindle Road
Mechanicsburg, PA 17055
CENTRAL PA MRI CENTER,
4465 Trindle Road
Mechanicsburg, PA 17055
Defendants.
Attorneys for.
GBORGB R, ROTH, JR" H,O"
NBUROLOGlCAL SURGBRY, LTD.,
and BBRTRAND B, GIULIAN, H.D.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 95-3071 Civil Term
JURY TRIAL DEMANDED
PRAECIPE TO ENTER APPEARANCE
TO: PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA
Kindly enter our appearance as counsel on behalf of
Defendants, GEORGE R. ROTH, JR., M.D., NEUROLOGICAL SURGERY,
LTD.. and BERTRAND B. GIULIAN, M.D., in the above,captioned
matter.
Datel 7-(-'0"i"
s.
By:
S. WALTER FOULKRO , III, ESQUI E
Attorney 1.0. No. 01982
S. WALTER FOULKROD, IV, ESQUIRE
Attorney 1.0. No. 65207
Attorneys for Defendants,
GEORGE R. ROTH, JR., M.D.,
NEUROLOGICAL SURGERY, LTD., and
BERTRAND B. GIULIAN, M.D.
2215 Forest Hills Drive - Suite 35
P. O. Box 6600
Harrisburg, PA 17112-0600
(717) 541-0400
CERTIFICATE OF SERVICE
I HERBBY CBRTIFY that true and correct copies of the
foregoing BNTRY OF APPB, served upon all counsel of
record this(, (I' day o{__ " , 1995, by depositing said
copy in the United Stag's Mail at Harrisburg, Pennsylvania,
postage prepaid, first class delivery, and addressed as followsl
Thomas W. Hall, Esquire
Atlee & Hall, P.C.
o North Queen Street
P.O. Box 449
Lancaster, PA 17600-0449
S. ~~LTER ~~ULKROD, III,i ASSOCIATES
/-- ) /' ,~J // /
/ / /. v , /'
BYI~ ' (.4,- ("" - .,r(..40-
~ Ann E. Nelson, Se retary
JoJt '"U
,J 3<. r" 'SS
~ II',
III
,
'J!.omal. 'J!.omm & %/fr
,'JIII.....,V, "I j ~IU'
JOI NOATH 'AONT UREET
P 0, lOX nl
HARRISBURG, PAl710B
THOMAS, THOMAS" HAFER
BY, S.r.h W, Arolln, Elqulr.
IDENTIFICATION NO, 68797
305 Nonh Front SIr.I'
P,O, Box BBB
Hlnllburg, PA 1710B,OB9B
Attornev. 'or Defend,nt Cent,.1 PI. MRI Cent.,
ARTHUR T. SMITH,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
GEORGE R. ROTH, JR., M.D.,
NEUROLOGICAL SURGERY, LTD.,
BERTRAND B. GIULIAN, M.D., and
CENTRAL PA MRI CENTER.
Defendants
NO, 95-3071 CIVIL TERM
JURY TRIAL DEMANDED
NOTICE TO PLBAD
TOI Arthur T. Smith, Plaintiff, and
Thomas W. Hall, Esquire,
Attorney for Plaintiff I
You are hereby notified to plead to the enclosed New Matter
within twenty (20) days from service hereof or a default judgment
may be entered against you,
THOMAS, THOMAS ~ HAPER
BYI ~~- ~.h_..t(~
~~ Ar~ESqui~e
I.D,1I58797
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7613
Attorneys for Defendant Central Pa.
MRI Center
DATE I 7f,/,r
I
THOMAS, THOMAS" HAFER
BY, Sor.h W, A,olln, Eoqulr.
IDENTIFICATION NO, 68797
305 North Front Strll'
P,O. Bo. Bgg
H.rrl,burg, PA 171 OB,0999
AllorneYI fOf Delendant Central PI. MRI Center
ARTHUR T. SMITH.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v,
GEORGE R. ROTH, JR., M.D.,
NEUROLOGICAL SURGERY, LTD.,
BERTRAND B. GIULIAN, M.D., and
CENTRAL PA MRI CENTER,
Defendants
NO. 95-3071 CIVIL TERM
JURY TRIAL DEMANDED
DIFBNDANT CINTRAL PA HRI CENTER'S ANSWJ:R
WITH Nnf NATTIR TO PLAINTIFF' S COMPLAINT
AND NOW, comes the Defendant, Central PA MRI Center
(hereinafter "Answering Defendant"), by and through its attorneys,
Thomas, Thomas & Hafer, and replies to Plaintiff's Complaint as
follows I
1-4. Denied.
After reasonable investigation, Answering
Defendant is without knowledge or information sufficient to form a
belief as to the truth or falsity of the averments contained in
these paragraphs and, therefore, deny same and demand strict proof
thereof at the time of trial, if deemed material.
5, Admitted in part, Denied in part. It is admitted upon
information and belief that Defendant Bertrand B. Giulian, M,D. is
a physician licensed to practice medicine in the Commonwealth of
Pennsylvania and a specialist in radiology. It is denied that Dr.
Giulian is an employee, servant, or agent and/or apparent employee,
apparent servant, or apparent agent of Defendant Central PA MRI
Center.
6. Denied ae stated. To the contrary. Defendant Central PA
MRI Center is a general partnership which owns a facility at 4665
Trindle Road, Mechanicsburg, PA, which provides magnetic resonance
imaging services to the residents of the greater Harrisburg area.
7 - 15. Denied. The averments contained in these paragraphs
are denied in conformity with Pa.R.C.p. 1029(e).
16. Denied as stated. It is admitted that a report dated
June 15, 1993 for an "MRI of the brain with supplemental MRA" is
signed by Bertrand v. Giulian, M.D.. The remainder of the averments
in this paragraph are denied since after reasonable investigation,
Answering Defendant is without knowledge or information sufficient
to form a belief as to the truth or falsity of the averments and,
therefore, deny same and demand strict proof thereof at the time of
trial, if deemed material.
17 - 42. Denied. The averments contained in these paragraphs
are denied in conformity with Pa.R.C.p. 1029(e).
43 - 47. Denied. To the extent the averments contained in
these paragraphs of Plaintiff's Complaint refer to negligence and
proximate causation, they are conclusions of law to which no
affirmative response is required, By way of further response, to
the extent the averments contained in these paragraphs of
Plaintiff's Complaint refer to Plaintiff's alleged damages, they
are denied since after reasonable investigation, Answering
Defendant is without knowledge or information sufficient to form a
belief as to the truth or falsity of the averments contained in
- 2 -
these paragraphs and, therefore, denies same and demands strict
proof thereof at the time of trial.
WHEREFORE, Defendant, Central PA MRI Center demands judgment
in its favor and against Plaintiff without cost to them.
COUNT X
Arthur T. smith v. aaoraa R. Roth. Jr.. M.D.
48. Answering Defendant hereby incorporates by reference
Paragraphs 1 through 47 of this Answer as though the same were set
forth herein at length.
49. The averments set forth in this paragraph of Plaintiff's
Complaint are directed to Defendants other than the Answering
Defendant and therefore no response is required by the Answering
Defendant.
WHEREFORE, Defendant, Central PA MRI Center demands judgment
in its favor and against Plaintiff without cost to them.
COUNT II
Arthur T. Smith v. Nauroloaioal Suraarv. Ltd,
50. Answering Defendant hereby incorporates by reference
Paragraphs 1 through 49 of this Answer as though the same were set
forth herein at length,
51-52. The averments set forth in these paragraphs of
Plaintiff's Complaint are directed to Defendants other than the
Answering Defendant and therefore no response is required by the
Answering Defendant,
WHEREFORE, Defendant, central PA MRI Center demands judgment
in its favor and against Plaintiff without cost to them.
- 3 -
COUNT III
Arthur T. Smith v. Bertrand B. Giulian. M.D.
53. Answering Defendant hereby incorporates by reference
Paragraphs 1 through 52 of this Answer as though the same were set
forth herein at length.
54. The averments set forth in this paragraph of Plaintiff's
Complaint are directed to Defendants other than the Answering
Defendant and therefore no response is required by the Answering
Defendant.
WHEREFORE, Defendant, Central PA MRI Center demands judgment
in its favor and against Plaintiff without cost to them.
COUNT IV
Arthur T. Smith v. Central fa. MHI Canter
55. Answering Defendant hereby incorporates by reference
Paragraphs 1 through 54 of this Answer as though the same were set
forth herein at length.
56. Denied. The averments contained in this palagraph of
Plaintiff's Complaint are conclusions of law to which no
affirmative response is required. Nevertheless, it io specifically
denied that at all times relevant to this Complaint, Dr. Oiulian
was the employee, servant, or agent and/or apparent employee,
apparent servant, or apparent agent of Defendant Central Pa MRI
Center.
57. Denied. The averments contained in this paragraph of
Plaintiff's Complaint are conclusions of law to which no
affirmative response is required. Nevertheless, it is specifically
- 4 -
denied that at all times relevant to this Complaint, Dr. Ciulian
was the employee, servant, or agent and/or apparent employee,
apparent servant, or apparent agent of Defendant Central Pa MRI
Center. To the contrary, Defendant Central Pa. MRI Center is not
a licensed physician. Under the Pennsylvania Medical Practice Act
of 1985, 63 P.S. 5422.10 ~ ~., only a licensed physician may
practice medicine or surgery, Accordingly, Central Pa. MRI Center
did not have the right to control the manner and nature in which
Dr. Ciulian discharged his professional obligations and therefore
Defendant Central pa MRI Center is not vicariously responsible for
the conduct of Dr. Ciulian.
WHEREFORE, Defendant Central Pa. MRI Center respectfully
demands judgment in its favor and against Plaintiff.
CLAIM I
Arthur T. Smith v. aeoraa R. Roth. Jr.. M.D.
Bertrand B. aiulian. M.D.
58. Answering Defendant hereby incorporates by reference
ParaglJphs 1 through 57 of this Answer as though the same were set
forth herein at length.
59-62.
Denied. The averments contained in these paragraphs
of Plaintiff's Complaint are conclusions of law to which no
affirmative response is required. Nevertheless, it is srocifically
denied that at all times relevant to this Complaint, Dr. Ciulian
was the employee, servant, or agent and/or apparent employee,
apparent servant, or apparent agent of Defendant Central pa MRI
Center. To the contrary, Defendant Central Pa. MRI Center is not
a licensed physician, Under the Pennsylvania Medical Practice Act
- 5 -
of 1985, 63 P. S, ~4 22. 10 ~ ll.ll.Q., only a licensed physician may
practice medicine or surgery. Accordingly, Central Pa. MRI Center
did not have the right to control the manner and nature in which
Dr. Giulian discharged his professional obligations and therefore
Defendant Central Pa MRI Center is not vicariously responsible for
the conduct of Dr. Giulian. By way of further response, to the
extent the averments contained in these paragraphs of Plaintiff's
Complaint refer to Plaintiff's alleged damages, they are denied
since after reasonable investigation, Answering Defendant is
without knowledge or information sufficient to form a belief as to
the truth or falsity of the averments contained in these paragraphs
and, therefore, denies same and demands strict proof thereof at the
time of trial.
NDl MATTIR
By way of further response to the averments contained in
Plaintiff's Complaint, Answering Defendant hereby raises the
following New Matter in accordance with Pennsylvania Rule of civil
Procedure 10301
63. Facts set forth in the foregoing answer to Plaintiff's
Complaint are incorporated herein by reference as though fully set
forth at length.
64. Plaintiff's claims may b~ barred by the applicable two-
year statute of limitations.
65. At no time relevant to this Complaint, was Dr. Giulian
the employee, servant, or agent and/or apparent employee, apparent
- 6 -
- ..<
servant, or apparent agent or otherwise acting for or on behalf of
Defendant central pa MRI Center.
66. At no time relevant to this complaint, was any other
natural person, partnership, corporation or other legal entity
acting or serving as an employee, servant, or agent and/or apparent
employee, apparent servant, or apparent agent of Defendant central
-..,..
,
pa MRI Center.
\
67. Answering Defendant did not render any medical or
surgical or professional services to plaintiff, Defendant central
Pa. MRI Center is not and cannot be vicariously liable for the
conduct of Dr. Guilian. Under the pennsylvania Medical practice Act
of 1985, 63 P.B. 6422.10 ~ ~., only an individual person may be
licensed as a medical doctor to practice medicine and surgery. At
no time hereto was central Pa. MRI Center licensed as a medical
doctor and Answering Defendant did not in fact, have the right to
supervise, direct or control the manner in which Dr. Guilian
provided professional services to the plaintiff.
68, plaintiff' s complaint fails, in whole or in part, to
state a claim against Answering Defendant upon which relief can be
granted.
69, Answering Defendant was not negligent nor did any of its
employees, servants or agents engage in any liability-producing
conduct, either active or passive, at any time relevant to the
cause of action alleged in plaintiff's complaint.
70, Whatever injuries and damages, if any, sustained by
plaintiff as averred in the complaint, were caused in whole or in
- 7 -
part by persons or entities over whom Answering Defendant had no
duty to supervise or control and therefore Answering Defendant is
not liable and Plaintiff may not recover against Answering
Defendant.
'\
\.,
I,
I
71. Whatever injuries and damages, if any, sustained by
Plaintiff as averred in the Complaint, were not caused by the
conduct or negligence of Answering Defendant, but were caused in
whole or in part or were contributed to by pre-existing medical
conditions of Plaintiff, beyond the control of Answering Defendant
and therefore plaintiff may not recover against it.
72. No conduct on the part of Answering Defendant was a
substantial factor in causing or contributing to any harm which the
Plaintiff may have suffered.
73. the acts or omissions of others, and not the Answering
Defendant, constituted intervening and/or superseding causes of the
injuries and/or damages alleged to have been sustained by plaintiff
and Answering Defendant cannot, therefore, pursuant to Pennsylvania
law, be held liable for the alleged injuries to Plaintiff.
74, Plaintiff is estopped from recovery because of
Plaintiff's own acts and/or failure to act.
- s -
WHEREFORE, Defendant, Central Pa, MRI Center demands judgment
in its favor and against Plaintiff without cost to them,
Respectfully submitted,
THOMAS, THOMAS " HArlR
By I r7!..... ~ ..l/J - - ~j
~W~Ar~e
1.0,#58797
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7613
Attorneys for Defendant Central Pa.
MRI Center
DATE I "/ti,r
,
VERIFICATION
I, April Butts, Business Manager for Central Pennsylvania MRI
Center, have read the foregoing ANSWBR WITH NEW NATTBR TO
PLAINTIFF'S COMPLAINT, which has been drafted by our counsfll on our
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 ANSWBR
WITH NEW KATTBR 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. S4904 relating to unsworn falsification to authorities,
which provides that, if I knowingly make false averments, I may be
subject to criminal penalties,
J~~
DATE I ~ t / c 11? 5
._LL5I "I
/~ U
I, SARAH W, AROSELL, ESQUIRE, hereby certify that I have
served a true and correct copy of the foregoing ANSWER WITH NEW
MATTER on the following persons by placing a copy of the same in
the United States mail, first class mail, directed to their office
addresses as follows:
DATE: 1}V,r-
CERTIPICATB OF SBRVICB
Thomas W. Hall, Esquire
ATLBII: fo HALL
8 North Queen Street
P.O. Box 449
Lancaster, PA 17608-0449
George R. Roth, Jr., M.D.
Neurological Surgery, Ltd.
920 Century Drive
Mechanicsburg, PA 17055
Neurological Surgery, Ltd.
920 Century Drive
Mechanicsburg, PA 17055
Bertrand B. Giulian, M.D,
Central Pa. MRI Center
4465 Trindle Road
Mechanicsburg, PA 17055
THOMAS, THOMAS fo HAPIR
By,~~a..~~tL
Sar W, Arosell, Esqu re
895.14:, 2000bi95
Thomas W. Hall, Esquire
ATLBB & HALL
8 North Queen Slreet
P. O. Box 449
Lancasler, PA 17608.0449
(717) 393-9596
10 No. 33092
Attorney for Plaintiff
v,
IN TIlB COURT OF COMMON PLBAS
CUMBBRLAND COUNTY, PBNNSYLV ANlA
CIVIL ACTION - LAW
NO.: 95-3071 CIVIL TERM
ARTIlUR T, SMITII,
Plaintiff,
GBORGB R. ROm, JR" M.D.,
BBRTRAND B. G1UUAN, M.D.,
and CBNTRAL PA MRI CBNTBR,
Defendanls,
JURY TRIAL DBMANDBD
PLAINTIFF'S RESPONSE TO NEW MATI'ER OF
DEFENDANT CENTRAL PA MRI CENTER
63. The avennenls of facl sel forth in plaintiffs complaint are IncOlporated herein by
reference as If fully set forth.
64. The avennents of Paragraph 64 are conclusions of law 10 which no response Is
required and Ihe same are deemed denied,
65. Denied for the reasons set forth In plaintiffs comlHalnl.
66. Denied for Ihe reasons already sel forth In plaintiffs complaint. By way of
further answer, Ihe avennenls of Paragraph 66 are conclusions of law 10 which no response Is
required and the same are deemed denied,
095,14 t 12000&:.9'
67.74,
Denied, The avennenls of Paragraphs 67 Ihrough 74 are conclusions of
law 10 which no response Is required and Ihe same are deemed denied,
WHIlRBFORB, plalnllff demands Judgmenl III his favor and agalnsl Ihe Defendant
Cenlral PA MRI Cenler as more fully sel forth In plalnllfrs complalnl,
A TI.BB & HAll
7tw/w
By:
Thomas W. Hall
Attorney for Plalnllff
8 North Queen Slreet
p, 0, Box 449
Lancaster, PA 17608-0449
(717) 393-9~96
ID No, 33092
2
D9S,14\'410008'9~
CERllF1CATB OF SERVICB
I hereby certify Ihal I have Ihis day caused a InJe and correcl copy of Ihe foregoing
documenl, to be served upon Ihe following person by placing a copy of Ihe said document In Ihe
Unlled Stales malls, first class maU, direcled 10 Iheir office address as follows:
S, Waller Foulkrod, m, Bsquire
S. Walter Foulkrod, UI & Associales
2215 Foresl Hills Drive, Suite 35
P.O. Box 6600
Hanlsburg, PA 17112-0600
Sarah W. Arosell, Bsqulre
Thomas, Thomas & Hafer
305 North Fronl Slreel
Slxlh Floor
P.O. Box 999
Hanlsburg, PA 17108
ATLBB & HALL
By:
/7~
Thomas W. Hall
Attorney for Plaintiff
8 North Queen Slreet
p, O. Box 449
Lancasler, PA 17608-0449
(717) 393-9596
10 No, 33092
Daled:
,1995
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. ,
S, WALTBR FOULKROD, III, BSQUIRS
Pa, Supreme Court I,D. No, 01982
S, WALTER FOULKROD, IV, BSQUIRB
Pa, Supreme Court 1.0, No, 65207
S, WALTBR FOULKROD, III & ASSOCIATBS
2215 Foreet Hille Drive - Suite ]5
Post Office Box 6600
Harrisburg, pennsflvania 17112-0600
Telephone I (71 7 541.0400
Fax. [71'1] 541,1727
At torneye fOri
GBORGS R, ROTH, JR" M,O"
NSUROLOOlCAL SURGBRY, LTC"
and BSRTRAND a, GIULIAN, M,O,
ARTHUR T. SMITH,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
No. 95-3071 Civil Term
GEORGE R. ROTH, JR., M.D.,
NEUROLOGICAL SURGERY, LTD.,
BERTRAND B. GIULIAN, M,D.,
CENTRAL PA MRI CENTER,
Defendants.
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TOI ARTHUR T. SMITH
c/o Thomas W. Hall, Esquire
Atlee & Hall, P.C.
8 North Queen Street
P. O. Box 449
Lancaster, PA 17608-0449
YOU ARE HEREBY NOTIFIED to plead to the enGlosed NEW MATTER
OF DEFENDANTS, GEORGE R. ROTH, JR., M.D., NEUROLOGICAL SURGERY,
LTD., and BERTRAND B. GIULIAN, M.D., within twenty (20) days from
service hereof, or a default jUdgment may be entered against you.
..
Datel
Ci jf/~
By,~it_
Attorney 1.0. No. 01982
S. WALTER FOULKROD, IV
Attorney 1.0. No. 65207
Attorneys for DefendantB,
GEORGE R, ROTH, JR., M,D.,
NEUROLOGICAL SURGERY, LTD., and
BERTRAND B. GIULIAN, M.D.
S, WALTBR FOULKROD, III, BSQUIRB
Pa, Supreme Court I,D, No, 01982
S, WALTBR FOULKROD, IV, BSQUIRE
Pa, Supreme Court I,D, No, 65~07
S. WALTBR FOULKROD, III & ASSOCIATBS
2215 Foreet Hills Drive . Suite 35
Post Office Box 6600
Harrisburg, pennsrlvania 17112-0600
Telephone: (717 541-0.00
Fax: [717] 541-1727
Attorneys for.
OEOROE R. ROTH, JR., M.D.,
NEUROLOGICAL SUROERY, LTD.,
and BERTRAND B, OIULIAN, M.D,
ARTHUR T. SMITH,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 95-3071 Civil Term
v.
GEORGE R. ROTH, JR.. M.D.,
NEUROLOGICAL SURGERY, LTD.,
BERTRAND B. GIULIAN, M.D.,
CENTRAL FA MRI CENTER,
Defendants.
JURY TRIAL DEMANDED
ANSWER AND NEW MATTER OF DEFENDANTS,
GEORGE R. ROTH, JR., M.D., NEUROLOGICAL SURGERY, LTD.,
AND BERTRAND B. GIULIAN, M.D. TO PLAINTIFF'S COMPLAINT
AND NOW come Defendants, George R. Roth, Jr., M.D. ("Dr.
Roth"), Neurological Surgery, Ltd. ("NSL"l, and Bertrand B.
Giulian, M.D. ("Dr. Giulian"l, collectively hereinafter referred
to as Answering Defendants, by and through their counsel, S.
Walter Foulkrod, III, and Answer and assert New Matter to
Plaintiff's Complaint as follows:
1. Denied. After reasonable investigation, Answering
Defendants do not have information sufficient to form a belief as
to the accuracy or inaccuracy of the corresponding averment in
Plaintiff's Complaint and the same is accordingly denied. By
way of further answer, at the time one Arthur T. Smith was seen
by Dr. Roth, his address was 17 Glenwood Road, Lot 15, Dillsburg,
PA 17019.
2. Admitted.
3. Denied as stated. To the extent that the averment
contained in '3 of Plaintiff's Complaint is ultimately found to
allege or imply that NSL practices medicine the same is
specifically denied. NSL is a corporation which provides
administrative facilities for the practice of neurosurgery by
four neurosurgeons, one of whom is Dr. Roth. It is specifically
denied that NSL practices medicine. Under the Medical Practice
Act of 1985, 63 P.S., ~422.10, ~~, only a person may be
licensed to practice medicine or surgery. NSL is not a person.
Accordingly, NSL cannot, as a matter of law, be vicariously or
otherwise liable for the conduct of Dr. Roth.
4. Admitted in part and denied in part. It is admitted
that Dr. Roth was an officer of NSL. It is specifically denied
that he was an employer, servant, agent, employee, apparent
employee, apparent servant or apparent agent, of NSL. Answer to
'3 is herein incorporated by reference.
5. Admitted in part and denied in part. It is specifically
denied that Dr. Giultan is an employee, servant, agent and/or an
apparent employee, apparent servant or apparent agent of
Defendant, Central PA MRI Center ("MRI"). It is spec if ically
denied that MRI was an agent, servant, employee or otherwise
acting for or on behalf of Dr. Giulian.
- 2 -
6. Answering Defendants are advised by counsel and
therefore aver that the corresponding averment of Plaintiff's
Complaint does not pertain to them and that no answer is
roquired.
7. Denied. After reasonable investigation, Answering
Defendants do not have sufficient information to form a belief as
to the accuracy or inaccuracy of the corresponding averment in
Plaintiff's Complaint and the same is accordingly denied.
8. Denied as stated. It is specifically denied that Mr.
Smith complained of pain as alleged in the corresponding
paragraphs of Plaintiff's Complaint. To the contrary, the
complaints rendered by Mr. Smith which are recorded in the
records of Holy Spirit Hospital radiology department document
that Mr. Smith had had a neck pain since yesterday, pain over the
entire cranium, chest pain and pain radiating to head and neck.
By way of further answer, Dr. Roth's notes document that the
patient complained of chest pain, neck pain and headache.
9. Admitted.
10. Denied. It is specifically denied that Mr. Smith
stated that his neck and head pain were worse than his chest
pain. To the contrary, Mr. Smith related that his primary
discomfort was in his chest and left arm.
11. Admitted.
12. Denied as stated. To the contrary, it is averred that
Dr. Olson felt there was "an apparent aneurysm" involving the
Basilar artery measuring up to 9 rom. Dr. Roth reviewed the CT
- 3 -
scan and believed the area noted by Dr. Olson was more likely a
normal anatomical variation.
13, Admitted.
14. Denied as stated. It is specifically denied that Dr.
Olson "reconunended MRI angiography." To the contrary, Dr. Olson
stated "this can be confirmed with MR angiography . . .."
15. Admitted.
16. Admitted.
17. Denied. It is specifically denied that Dr. Roth and
Dr. Giulian incorrectly interpreted the MRI angiography as
normal.
lB. Denied. It is specifically denied that Dr. Roth told
Mr. Smith there was nothing wrong and discharged him with no
reconunendations for follow-up. To the contrary, Dr. Roth felt
the patient's symptoms were referable to either muscle
contraction or a musculoligamentous type problem. Dr. Roth did
not feel the patient had a subarachnoid hemorrhage but ordered
Fiorinal in addition to Percocet and reconunended that the patient
taper himself off of Flexeril. Dr. Roth specifically advised Mr.
Smith that he would be available to see him should he experience
persisting or any worsening complaint.
19.44. Denied. After reasonable investigation Answering
Defendants do not have sufficient information to form a belief ..
to the accuracy or inaccuracy of the averments contained in the
corresponding paragraphs of Plaintiff's Complaint and the same
are accordingly denied.
.4.
45. Denied. It is specifically denied that Answering
Defendants' conduct caused or contributed to the injuries as
alleged in Plaintiff's Complaint or increased the risk of harm of
such injuries.
46. Denied. It is specifically denied that the conduct of
Answering Defendants increased the risk that Mr. Smith would
require further neurological procedures.
47. Denied. It is specifically denied that Answering
Defendants were negligent or that their conduct caused or
contributed to the injuries and damages as alleged in Plaintiff's
Complaint.
WHEREFORE, George R. Roth, Jr, M.D., Neurological Surgery,
Ltd., and Bertrand B. Giulian, M.D. demand jUdgment in their
favor and against Plaintiff.
COUNT I
Arthur T. Smith v. George R. Roth. Jr.. M.D.
48. Answering Defendants hereby incorporate by reference
answers contained in '1-47 above as though the same were fully
set forth herein at length.
49(a-j). Denied. Dr. Roth is advised by counsel and
therefor avers that the corresponding subparagraphs of '49 of
Plaintiff's Complaint are deemed to be denied by operation of Pa.
R.C.P. 1029(e) and that no further answer is required. By way of
further answer, it is specifically denied that Dr. Roth was
- 5 -
negligent, that his conduct caused or contributed to the injuries
as alleged in Plaintiff's Complaint or that his conduct increased
the risk of harm to the Plaintiff as alleged.
WHEREFORE, Defendant, George R. Roth, Jr., M.D., demands
judgment in his favor and against Plaintiff.
COUNT II
Arthur T. Smith v. Neurological Surqerv, Ltd.
50. Answering Defendants hereby incorporate by reference
answers contained in '1-49 above as though the same were fully
set forth herein at length.
51. Denied. It is specifically denied that Dr. Roth was an
employee, servant, agent or apparent employee, servant or agent
of NSL. To the contrary, NSL is not licensed to practice
medicine in the Commonwealth of Pennsylvania. Under the Medical
Practice Act of 1985, 63 P.S., ~422.10, ~~, only a person
may be licensed to practice medicine or surgery. NSL is not a
licensed person and therefore does not have the legal right to
superviso, direct or control the manner or nature in which Dr.
Roth discharges his professional obligations to patients and
therefor, NSL can not be vicariously or otherwise liable for the'
conduct of Dr. Roth.
52. Denied. It is specifically denied that Dr. Roth was
negligent. By way of further answer, answer to '51 is herein
incorporated by reference.
- 6 -
WHEREFORE, Neurological Surgery. Ltd., demands judgment in
its favor and against Plaintiff.
COUNT III
Arthur T. Smith v. Bertrand B. Giulian. M.D.
53. Answering Defendants hereby incorporate by reference
answers contained in '1-52 above as though the same were fully
set forth herein at length.
54(a-g). Denied. It is specifically denied that Dr.
Giulian was negligent, that his conduct increased the risk of
harm to Plaintiff or that his conduct caused or contributed to
the outcome as alleged in Plaintiff's Complaint. By way of
further answer, Dr. Giulian is advised by counsel and therefore
avers that the allegations contained in subparagraphs (a-g) in
'54 of Plaintiff's Complaint are deemed to be denied pursuant to
Pa. R.C.P. 1029(e) and that no further answer is required.
WHEREFORE, Bertrand B. Giulian, M.D., demands judgment in
his favor and against Plaintiff.
COUNT IV
Arthur T. Smith v. Central PA MRI Center
- 7 -
55-57. Answering Defendants are advised that the
corresponding allegations in Plaintiff's Complaint do not pertain
to them and that no answer is required.
WHEREFORE, Defendants, George R. Roth, Jr., M.D"
Neurological Surgery, Ltd., and Bertrand B. Giulian, M.D., demand
judgment in their favor and against Plaintiff.
CLAIM I
Arthur T. Smith v. Georqe R. Roth. Jr.. M.D., NeuroJoqical
Surqerv. Ltd., Bertrand B. Giulian. M.D.
58. Answering Defendants hereby incorporate by reference
answers contained in '1-52 above as though the same were fully
set forth herein at length.
59-62. Denied. After reasonable investigation, Answering
Defendants do not have sufficient information to form a belief as
to the accuracy or inaccuracy of the corresponding averments in
Plaintiff's Complaint and the same are accordingly denied.
Strict proof of evidence demanded at trial.
WHEREFORE, Defendants, George R. Roth, Jr., M.D.,
Neurological surgery, Ltd., and Bertrand B. Giulian, M.D., demand
judgment in their favor and against Plaintiff.
NEW MATTER
- 8 -
63. Answering Defendants hereby incorporate by reference
facts contained in '1-62 above as though the same were fully set
forth herein at length.
64, At no time relevant hereto was Dr. Roth an agent,
servant, employee or otherwise acting for or on behalf of any
other Defendant in this action or any other natural person,
partnership, corporation or other legal entity.
65. At no time relevant hereto was any other natural
person, partnership, corporation or other legal entity acting or
serving as an agent, servant, employee or otherwise for or on
behalf of Dr. Roth.
66. At no time relevant hereto was NSL an agent, servant,
employee or otherwise acting for or on behalf of any other
Defendant in this action or any other natural person,
partnership, corporation or other legal entity.
67. At no time relevant hereto was any other natural
person, partnership, corporation or other legal entity acting or
serving as an agent, servant, employee or otherwise for or on
behalf of NBL.
68. At no time relevant hereto was Dr. Giu1ian an agent,
servant, employee or otherwise acting for or on behalf of any
other Defendant in this action or any other natural person,
partnership, corporation or other legal entity.
69. At no time relevant hereto was any other natural
person, partnership, corporation or other legal entity acting or
- 9 .
,
serving as an agent, servant, elnployee or otherwise for or on
behalf of Dr. Giulian.
70. NSL did not render any medical or surgical or
professional services to Plaintiff. NSL is not and cannot be
vicariously liable for the conduct of Dr. Roth. Under the
Pennsylvania Medical Practices Act of 1985, 63 P.S., 5422.10 ~
~, only an individual person may be licensed as a medical
doctor to practice medicine and surgery. At no time hereto was
NSL licensed as a medical doctor and NSL did not in fact have the
right to supervise, direct or control the manner in which Dr.
Roth provided professional services to Arthur T. Smith.
71. In the event it is ultimately determined that NSL is
liable to Plaintiff, which liability is specifically denied,
under the Pennsylvania Professional Corporation Law, 15 Pa.C.S.A,
S2925(c), the professional corporation may be held liable only to
the extent of the value of its property.
72. At all times relevant hereto Answering Defendants
complied with the applicable standard of care.
73. At all times relevant hereto Dr. Roth and Dr. Giulian
acted within and followed the precepts of a respected school of
thought and, accordingly, their professional conduct was fully
commensurate with the applicable standard of care. It is not
denied that there may be two or more schools of thought
applicable to the issues presented with respect to the treatment
of Arthur T. Smith.
- 10 -
74. Plaintiff assumed the risk of his injuries and this
action is therefore barred by the Doctrine of Assumption of Risk.
75. Answering Defendants believe and therefore aver that
evidence accumulated at 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 an affirmative defense.
76. Answering Defendants are entitled to contribution in
accordance with the Pennsylvania Comparative Negligence Act, 42
P.S. 57102.
77. In the event that it is determined that Answering
Defendants, or any of them, were negligent with regard to any of
the allegations contained in, and with respect to Plaintiff's
Complaint, said allegations being specifically denied, said
negligence was superseded by the intervening negligent acts of
other persons, parties and/or organizations other than Answering
Defendants and over whom said Answering Defendants had no
control, right or responsibility and, therefore, Answering
Defendants are not liable.
78, At all times relevant hereto, Dr. Roth and Dr. Giulian
were competent and qualified physicians acting in compliance with
the applicable standard of care.
79. To the extent that the evidence may show that other
persons, partnerships, corporations or other legal entities
caused or contributed to the injuries or exacerbation of the pre-
- 11 -
existing condition of Plaintiff, then the conduct of the
Answering Defendants was not the legal cause of such conditions
or injuries.
BO. Any acts or omissions of Answering Defendants alleged
to constitute negligence were not substantial contributing
factors and the injuries and damages alleged in Plaintiff's
Complaint.
B1. Whatever injuries and damages, if any, were sustained
by Plaintiff as averred in Plaintiff's Complaint, were caused in
whole or in part by persons or entities over whom Answering
Defendants had no duty to supervise or control, then Answering
Defendants are not liable, and Plaintiff may not recover against
them.
B2. Plaintiff's injuries and losses, if any, were not
caused by the conduct or negligence of Answering Defendants but
rather were caused by pre-existing medical conditions and causes
beyond the control of Answering Defendants, Plaintiff may not
recover against them.
B3. The acts or omissions of others, and not Answering
Defendants, constituted intervening and/or superseding causes of
the injuries and/or damages alleged to have been sustained by
Plaintiff and Answering Defendants cannot, therefore, pursuant to
Pennsylvania law, be held liable for the alleged injuries to
Plaintiff.
- 12 -
i'
WHEREFORE, George R. Roth, Jr., M.D., Neurological Surgery,
Ltd., and Bertrand B. Giulian, M.D., demand judgment in their
favor and against Plaintiff.
Respectfully submitted,
Datel qj;f/~j--
S. WALTER FOUL 00, III
f I. I '
BYI .
S. R 0 I
Attorney 1.0. No. 01982
S. WALTER FOULKROD, IV
Attorney 1.0. No. 65207
Attorneys for Defendants,
GEORGE R. ROTH, JR., M.D.,
NEUROLOGICAL SURGERY, LTD., and
BERTRAND B. GIULIAN, M.D.
2215 Forest Hills Drive - Suite 35
P.O. Box 6600
Harrisburg, PA 17112-0600
(717) 541-0400
- 13 -
V E R I F I CAT ION
I, GEORGE R. ROTH, JR., M.D., Individually and on behalf of
NEUROLOGICAL SURGERY, LTD, in my capacity as an Officer and
Director, hereby certify that I am authorized to make this
Verification on behalf of said corporation and that I have
reviewed the foregoing ANSWER AND NEW MATTER OF DEFENDANTS,
GEORGE R. ROTH, JR., M.D., NEUROLOGICAL SURGERY, LTD., AND
BERTRAND B. GIULIAN, M.D., TO PLAINTIFF'S COMPLAINT which has
been drafted by counsel on our behalf, and that the facts set
forth herein are true correct to the best of my knowledge,
information and belief.
This statement and Verification are made subject to the
penalties of 18 Pa.C.S.A. ~4904, relating to unsworn
falsifications to authorities I I verify that all the statements
made in the foregoing are true and correct and that false
statements may subject me to the penalties of 18 Pa.C.S.A, 14094.
Date:
,~
"J \ I
V E R I F I CAT ION
I, BERTRAND B. GIULIAN, M.D., have read the foregoing ANSWER
AND NEW MATTER OF DEFENDANTS, GEORGE R. ROTH, JR., M.D.,
NEUROLOGICAL SURGERY, LTD., AND BERTRAND B. GIULIAN, M.D., TO
PLAINTIFF'S 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. 54904, relating to unsworn fabrication to authorities
which provides that, if I knowingly make false averments, I may
be subject to criminal penalties.
Datel~ J'I.ltjl/J:,
12wl i/.~..tut:.. ~
~TRAND B. GIULIAN, M.D.
S. W~LTER,FOULKROD, It I & ASSOCIATES
} ')
By I -'.'" ~., ( <' ~> --
Jo Ann E. Nelson, Secretary
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copies of the
foregoing ANSWER AND NEW MATTER OF DEFENDANTS, GEORGE R. ROTH,
JR., M.D., NEUROLOGICAL SURGERY, LTD., AND BERTRAND B. GIULIAN,
M.D., TO PLAINTIFF'S COMPL~' was served upon all counsel of
record thiS/(!.I day of, ,.t' ,{./., //. 1995, by depositing said
,7 /
copy in the United States Mail at Harrisburg, Pennsylvania,
postage prepaid, first class delivery, and addressed as follows:
Thomas W. Hall, Esquire
Atlee & Hall, p.e.
8 North Queen Street
P.O. Box 449
Lancaster, PA 17608-0449
Sarah W, Arosell, Esquire
Thomas, Thomas & Hafer
305 North Front Street
P. O. Box 999
Harrisburg, PA 17108-0999
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89',14112001079'
Thomas W, Hall, Esquire
ATLEE & HALL
8 North Queen Slreel
P. O. Box 449
Lancasler, PA 17608-0449
(717) 393-9596
ID No. 33092
Attorney for Plaintiff
GEORGE R, ROTH, JR., M,D.,
BERTRAND B, GlULlAN, M.D"
and CENTRAL PA MRI CENTER.
ARTHUR T. SMITH,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY , PENNSYLVANIA
CIVIL ACTION - LAW
NO,: 95-3071 CIVIL TERM
Plaintiff,
v.
Defendanls.
JURY TRIAL DEMANDED
PLAINTIFF'S ANSWER TO NEW MATfER OF DEFENDANTS
ROTH. NEUROLOGICAL SURGERY. LTD. AND GlULlAN
63, The avennenls of Paragraphs I Ihrough 62 of plaintiff's complalnl are
Incorporated by reference as Ihough Ihe same were fully sel forth allenglh herein,
64 - 77.
Denied, The avermenls of Paragraphs 64 Ihrough 77 are conclusions of
law to which no response is required as the same are deemed denied,
78,
Denied for the reasons sel forth In plaintiff's complaint.
79 - 83,
Denied, The avermenls of Paragraphs 79 Ihrough 83 are conclusions of
taw to which no response is required as Ihe same are deemed denied.
..
89',14112001079'
WHEREFORE, plaintiff demands Judgment In his favor and agalnsl the defendants as set
forth In plaintiffs complaint.
ATLEE & HALL
By:
TI mas W, Hall
Anomey for Plaintiff
8 North Queen Slreet
p, 0, Box 449
Lancaster, PA 17608-0449
(717) 393-9596
ID No, 33092
2