HomeMy WebLinkAbout95-06691
..... ~l ~
h- c. .'
;' (.~~
,- ,
l'J.
, ~ :-
~. . " 1_'.. ,
l' ,I
c..5: ,.
(
"
- '. ,. 'J
Le. !:L
f --
I:. c:: _'J
e- e;- [.)
RUSSELL FORD and JOANN FORD,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
.
.
NO.
GARY L. BLACKSMITH, JR., M.D.
and BLACKSMITH ASSOCIATES,
Defendants
CIVIL ACTION - LAW
.
.
JURY TRIAL DEMANDED
COMPLAINT
1. Russell Ford and Joann Ford are husband and wife, adult
residents of carlisle, Cumberland county, Pennsylvania.
2. Defendant, Gary L. Blacksmith, Jr., M.D., is a physician
licensed to practice medicine in the Commonwealth of Pennsylvania
and employed in this capacity by the Defendant, Blacksmith
Associates, located in the Medical Arts Building, Suite 204, 220
Wilson street, Carlisle, Pennsylvania 17013, at all material times
herein.
3. Defendant, Blacksmith Associates, is a corporate medical
institution consisting of a group of physicians in the practice of
medicine, with offices located at the aforesaid address.
4. At all relevant times herein, Defendant, Gary L.
Blacksmith, Jr., M.D., acted as an agent, apparent agent, servant,
member, and/or employee of Defendant, Blacksmith Associates, and
acted within the scope of his agency, apparent agency, service,
membership, and/or employment.
5. Plaintiff, Russell Ford, was a patient of Defendants and
was examined and treated by Defendants at the Defendants' office at
all material times herein.
800l4/JKY
6. Plaintiff, Russell Ford, was diagnosed in July of 1994 as
suffering from supraglottic squamous cell carcinoma. He thereafter
underwent radical neck surgery at Hershey Medical Center, which
revealed a 4 x 2 x 2 centimeter ulcerating fungating tumor
involving the epiglottis.
7. Prior to being diagnosed with cancer, Mr. Ford treated
with Defendants.
8. On December 7, 1993, Mr. Ford was seen by Defendants,
complaining of a chronic productive cough. Defendants prescribed
an antibiotic for symptoms of "acute bronchitis" and advised Mr.
Ford to fOllow-up in several months.
9. Two and a hal f months later, Mr. Ford returned to
Defendants with identical complaints. Moreover, Mr. Ford was
experiencing "discomfort over the posterior pharynx." Defendants
again diagnosed him as suffering from acute bronchitis and
prescribed Amoxicillin and advised Mr. Ford to return in several
months.
10. Approximately two and a half weeks later, on March 8,
1994, Mr. Ford returned to Defendants with identical complaints.
Moreover, he advised Defendants that there was blood in his sputum.
He was again diagnosed as suffering from acute bronchitis and
prescribed an antibiotic which was renewed on March 17, 1994.
11. On March 22, 1994, Mr. Ford again returned to Defendants
with complaints of a sore throat and productive cough. Moreover,
he had developed a slightly nasal quality to his speech.
2
Defendants diagnosed him as suffering from possible sinusitis and
prescribed Benecade, a nasal spray.
12. Mr. Ford leturned to Defendants again on April 12, May
10, June 9, and July 21, 1994 with identical complaints.
Defendants continued to diagnose Mr. Ford as sUffering from acute
bronchitis and prescribed decongestants and antibiotics. However,
there was no change in Mr. Ford's condition.
13. Mr. Ford was eventually examined by an ear, nose, and
throat specialist in July of 1994, who on his initial evaluation of
Mr. Ford suspected "advanced subglottic neoplasm."
14. Mr. Ford underwent several operative procedures,
including a total laryngectomy as part of radical neck surgery in
August of 1994 at Hershey Medical Center.
15. As a result of this radical surgery, Mr. Ford has lost
the functional use of his voice and has a greater risk for future
cancer.
16. Had Defendants considered the possibility that Mr. Ford
was sUffering from throat cancer earlier in their treatment of him
and referred him to an ear, nose and throat specialist, as was
ultimately done in July of 1994, Mr. Ford would not have required
as radical a surgery, and perhaps would not have required surgery
at all, and would be at less risk for future cancer.
17. Had Defendants thought of the possibility that Mr. Ford
was suffering from throat cancer earlier in their treatment of him,
Mr. Ford would not have been required to incur the medical bills
and expenses relative to the radical surgeries performed and
3
hospitalizations and would not have required the extent of the
medical caro now required and which will be required in the future.
lB. Had the Defendants at least thought of the possibility
that Mr. Ford was sUffering from throat cancer earlier in their
treatment of him, Mr. Ford would not have undergone the pain and
sUffering while he has been forced to endure and which he will
continue to suffer throughout the rest of his life, as well as the
loss of life's pleasures and enjoyment, emotional pain and
suffering, embarrassment and humiliation, scarring, and economic
losses including wages and wage earning capacity which has been
incurred up to this point in time and which will continue
throughout the remainder of his lifetime.
19. Had the Defendants diagnosed or considered the
possibility of a diagnosis of throat cancer in Mr. Ford's case
earlier on in their treatment of him, all of these damages would
have been avoided and Plaintiff might only have required radiation
or chemotherapy. However, due to Defendants' failure to timely
diagnose or even think of the possibility of throat cancer in Mr.
Ford's case earlier in their treatment of him, radical surgery and
follow-up care was required and all of the damages as set forth
herein are directly and proximately caused by this failure on
behalf of the Defendants.
20. The failure to consider the diagnosis of throat cancer,
to test for it, and to treat it over the time period of December 7,
1993 through July of 1994, or to refer Mr. Ford to a specialist for
definitive diagnosis and treatment throughout this period of time,
4
or to have a chest x-ray performed, sputum cytology performed, or
consultation with a pulmonary or otolaryngology specialist,
constituted a deviation from the appropriate standard of medical
care applicable to the Defendants in this case. Defendants were
therefore negligent and this negligence directly and proximately
caused Plaintiff's damages.
21. Given Plaintiff's medical history, as known by the
Defendants, of smoking, alcohol consumption, and the patient's
physical complaints from the very outset of his visits on December
7, 1993, the appropriate standard of medical care required the
Defendants to consider the diagnosis of throat cancer, to then test
for it, and refer Mr. Ford to a specialist for treatment. As
Defendants failed to do so, they were negligent, and their medical
care fell below the appropriate standard of medical care, and this
negligence directly caused Plaintiff's injuries.
22. Plaintiff'S radical throat surgery, follow-up radiation
therapy, and related medical care would have and could have been
prevented with early diagnosis and treatment by the Defendants, as
set forth above.
23. The Defendants' failure to timely diagnose, treat, and
refer Plaintiff to medical specialists reduced the likelihood of a
better medical outcome and increased Plaintiff's risk for future
cancer.
5
COUNT I
Russell Ford v. Garv L. Blacksmith. Jr.. M.D.
and Blacksmith Associates
24. Paragraphs one through twenty-three of this Complaint are
incorporated herein by reference.
25. As a direct and proximate result of Defendants'
negligence in failing to diagnose or even consider as a possible
diagnosis the fact that Plaintiff had throat cancer and to then
timely refer him to a medical specialist as was eventually done in
July of 1994, Plaintiff suffered severe, permanent, and disabling
injuries to his body and mind, which include, but are not limited
to, the radical neck surgery eventually performed in August of 1994
and follow-up radiation treatment and related medical care, which
has left him with no functional voice and severe scarring, all of
which could and would have been prevented with early diagnosis and
treatment, and claim is made therefor.
26. As a direct and proximate result of Defendants'
negligence, as aforesaid, in failing to diagnose or even consider
the possibility of throat cancer in Plaintiff's case early on,
based again, on Plaintiff's past medical history and presenting
symptoms as of December 7, 1993 and throughout his examinations and
treatments by the Defendants through July of 1994, Plaintiff was
required to undergo the aforesaid radical neck surgery, extensive
hospitalization, therapy, and related medical treatment, as well as
past and future pain and suffering, permanent scarring, emotional
trauma, fear and anxiety, a loss of life's pleasures and enjoyment,
6
and the increased likelihood of further cancer, as well as a past
and future permanent economic deficit and plaintiff's ability to be
gainfully employed, as well as past and future medical bills
necessitated by Defendants' negligence, as aforesaid, and claim is
made therefor.
27. As a direct and proximate result of Defendants'
negligence, as aforesaid, Plaintiff has experienced and will
continue to experience the aforesaid damages throughout the
remainder of his lifetime, and claim is made therefor.
28. As a direct and proximate result of Defendants'
negligence, as aforesaid, Plaintiff continues to experience severe
emotional upset, physical pain and SUffering and concern for his
future, and fear regarding the increased risk of future cancer, as
well as great humiliation and embarrassment with respect to his
loss of any functional speech, which handicaps and disabilities he
will continue to be plagued by for the remainder of his lifetime,
and therefore avers that the injuries suffered as a result of
Defendants' negligence is permanent in nature, causing residual
problems for the remainder of his lifetime, and claim is made
therefor.
WHEREFORE, Plaintiff, Russell Ford, demands judgment against
Defendants, Gary L. Blacksmith, Jr., M.D. and Blacksmith
Associates, in an amount in excess of Twenty-Five ($25,000)
Thousand Dollars, exclusive of interests and costs and in excess of
any jurisdictional amount requiring compulsory arbitration.
7
IJo,' ~
~ .h
;:-: . ;-
.~ ~
, . ~
'.: ~
Wa:- ' 1'1
~ -' ",Z
~WIUZ, .;::,. \)
:rn,W
J!f ~... ~~ ~ 'I
...:>
- 0'-> "1
r ~ ""'"
~~ "l::. .~
~ ~'0 ~ ~
~
~ c is
In
.. ~-
Ii - .,:let:
0'_
:l:: U"'",
u.. 8&
N :So
c-~
W Li;! ,)
j!: h.j ru
C --
It_ In 5
~cn U
'"
~
~ l:i
~ 9 ... II
~ ~ 0
.. E
.. !< .. f
~ ... ..
a lil M .;
t .. 0 II:
Q II "
~ % ci II
I< '"
.l! 0 .. i
z II:
.; ~ '" C
%
~ 0
...
Q
~
..
. .
I~'" ~
~ .'"
. .
."-: - ~
.,
, . '. ~~
'.J ~
w.o:-' fV)
~ -' "'z ~ ~ .~ \)
;,;:WW:C,
:r:U1W
JI -"'" ~~ ~ "'l
...=>
- ~Co.1 "')
/' , ..........
~. ~ '" .~
~ ~\r) ~ ~
~ N ~
(V) "--
..., N : 1.....
u,Q 00;::
(... (- ~ ("';::..0
<";
fE;l.: "- r;~:!
~'''5 l:1l ; '(J
L.. N .) ""'
1_.
I I; ._.
U;\. ' .' "~.,,,
,.. C_ Lt....
f'" -, ..;
"_ e.... ~:j
<...> U1 U
t..
:i-
~ 9 e II
~ a: 0
~ to .. E
.. !Z .. i
'i! ..
I li1 " oS
t- o II:
~ II ~
E x d II
~ l< VI
0: it
.l! 0 II:
Z '"
.. ~ VI X
0
~ ...
Q
~
.
. .
.'
RUSSELL FORD and JOANN FORD,
Plaintiffs
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-6691
GARY L. BLACKSMITH, JR., M.D.
and BLACKSMITH ASSOCIATES,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ANSWER
l. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted with clarification. It is admitted that
plaintiff Russell Ford was a patient of the Defendants and was
examined and treated by the Defendant Gary L. Blacksmith, M.D. on
various occasions between December 7, 1993 and July 21, 1994.
6.
Admitted in part, denied in part.
It is admitted that
Plaintiff Russell Ford was diagnosed as suffering from supraglottic
squamous cell carcinoma in July 1994. It is further admittp.d that
he underwent neck surgery at the Hershey Medical Center in August
1994 to treat the condition. The remaining allegations are denied
on the basis that, after reasonable investigation, the Defendants
are without information or knowledge to form a belief as to the
truth thereof.
7. Admitted.
8. Denied as stated. By way of further answer, Defendants
incorporate by reference the medical records of Plaintiff Russell
Ford relative to his office visits with the Defendants for the
period from December 7, 1993 through July 21, 1994 and any
allegations which mischaracterize or are inconsistent with said
records are denied.
9. Denied as stated. By way of further answer, Defendants
incorporate by reference the medical records of plaintiff Russell
Ford relative to his office visits with the Defendants for the
period from December 7, 1993 through July 21, 1994 and any
allegations which mischaracterize or are inconsistent with said
records are denied.
10. Denied as stated. By way of further answer, Defendants
incorporate by reference the medical records of Plaintiff Russell
Ford relative to his office visits with the Defendants for the
period from December 7, 1993 through July 21, 1994 and any
allegations which mischaracterize or are inconsistent with said
records are denied.
11. Denied as stated. By way of further answer, Defendants
incorporate by reference the medical records of Plaintiff Russell
Ford relative to his office visits with the Defendants for the
period from December 7, 1993 through July 21, 1994 and any
allegations which mischaracterize or are inconsistent with said
records are denied.
12. Denied as stated. By way of further answer, Defendants
incorporate by reference the medical records of Plaintiff Russell
Ford relative to his office visits with the Defendants for the
period from December 7, 1993 through July 21, 1994 and any
-2-
allegations which mischaracterize or are inconsistent with said
records are denied.
13. Denied as stated. To the contrary,
Ford was referred to an otolaryngologist in
diagnosed an exophytic verrucous appearing
supraglottis.
14. Denied as stated. By way of further answer, reference is
made to the medical records of Plaintiff Russell Ford relative to
his treatment at the Hershey Medical Center during August 1994 and
any allegations which mischaracterize or are inconsistent with said
records are denied.
15. Denied. After reasonable investigation, the Defendants
are without information or knowledge sufficient to form a belief as
to the truth of the allegations and they are, therefore, denied.
16. Denied in accordance with Pa.R.C.P. 1029(e).
17. Denied in accordance with Pa.R.C.P. 1029(e).
18. Denied in accordance with Pa.R.C.P. 1029(e).
19. Denied in accordance with Pa.R.C.P. 1029(e).
20. Denied in accordance with Pa.R.C.P. 1029(e).
21. Denied in accordance with Pa.R.C.P. 1029(e).
22. Denied in accordance with Pa.R.C.P. 1029(e).
23. Denied in accordance with Pa.R.C.P. 1029(e).
COUNT I
Plaintiff Russell
July 1994, who
lesion of the
24. The answers contained in Paragraphs 1 through 23 above
are incorporated herein by reference.
-3-
25. Denied. It is specifically denied that the Defendants
were negligent in their treatment of Plaintiff Russell Ford, and it
is further specifically denied that the Defendants caused or
contributed to causing the injuries and damages alleged by any
negligent act or omission. To the contrary, at all times relevant
hereto Defendants acted competently and in accordance with the
applicable standard of medical care. The remaining allegations are
denied in accordance with Pa.R.C.P. l029(e).
26. Denied. It is specifically denied that the Defendants
were negligent in their treatment of Plaintiff Russell Ford, and it
is further specifically denied that the Defendants caused or
contributed to causing the injuries and damages alleged by any
negligent act or omission. To the contrary, at all times relevant
hereto Defendants acted competently and in accordance with the
applicable standard of medical care. The remaining allegations are
denied in accordance with Pa.R.C.P. l029(e).
27. Denied. It is specifically denied that the Defendants
were negligent in their treatment of plaintiff Russell Ford, and it
is further specifically denied that the Defendants caused or
contributed to causing the injuries and damages alleged by any
negligent act or omission. To the contrary, at all times relevant
hereto Defendants acted competently and in accordance with the
applicable standard of medical care. The remaining allegations are
denied in accordance with Pa.R.C.P. l029(e).
28. Denied. It is specifically denied that the Defendants
were negligent in their treatment of Plaintiff Russell Ford, and it
-4-
is further specifically denied that the Defendants caused or
contributed to causing the injuries and damages alleged by any
negligent act or omission. To the contrary, at all times relevant
hereto Defendants acted competently and in accordance with the
applicable standard of medical care. The remaining allegations are
denied in accordance with Pa.R.C.P. 1029(e).
WHEREFORE, Defendants Gary L. Blacksmith, Jr., M.D. and
Blacksmith Associates demand judgment in their favor and against
plaintiff Russell Ford, together with costs.
COUNT I I
29. The answers contained in Paragraphs 1 through 28 above
are incorporated herein by reference.
30. Denied. It is specifically denied that the Defendants
were negligent in their treatment of Plaintiff Russell Ford, and it
is further specifically denied that the Defendants caused or
contributed to causing the injuries and damages alleged by any
negligent act or omission. To the contrary, at all times relevant
hereto Defendants acted competently and in accordance with the
applicable standard of medical care. The remaining allegations are
denied in accordance with Pa.R.C.P. 1029(e).
31. Denied. It is specifically denied that the Defendants
were negligent in their treatment of Plaintiff Russell Ford, and it
is further specifically denied that the Defendants caused or
contributed to causing the injuries and damages alleged by any
negligent act or omission. To the contrary, at all times relevant
hereto Defendants acted competently and in accordance with the
-5-
(0
-.
I t!:
Ill'
( , .
I'
<.
,..,
I
I.
..
I. ,-
,
PRAECIPE FOR USTI:'IG C....SE FOR TRI....L
(~tuSt be typewritten and submittcd in duplicatc I
TO THE PROTHONOT....RY.OF CJ:~lBERLA.'1D COL':'iTY
P!e.so !ist :ho follow,", ":so:
l.c~.<.~ ~ne)
( X) for JL'RY mu 31 :n. ~e:u :o:m Ji .ivd ,"ur:.
( ) fer lrial without. jury.
------
. 'L.,
l~~ U)
::r:
n
TI
. ,
OPTION OF CASE
(.ntiz,; coption must ~e ststod in CuJI)
(check one)
.'
j
:)
~J
RUSSEll FORO AND JOANI~ FORO,
. Plaintiffs
VS.
GARY L: BLACKSMITH, JR., M.D.. AND
BLACKSMITH ASSOCIATES,
(
( )
( )
(X )
Trespass
" f'
, n
'.'
:.')
.',1
. .:u
.t-"
,.,
:!
:iJ
-...
Assumplll
:'
:_; --)
Tresp... (~totor Vehic!./',
Defendants
Medical Maloractice
(othor)
The trial list will be callec on
April 21. 1998
Trials commence on Mil V 18. 1998
,
Pretrials will be held on Apri I 29, 19~8
(Briefs are due 5 days before pre-
trials. )
(The party lis:ing this case for tria
shall provide forthwi:h a copy of the
~raecipe to all couns~l, p~suanc to
Iocal Rule 214-1.)
Xo. 6691
Clvd
'095
,,-
Indlest. the 'I:orn.)' who ",!l I:;' .:s: :or :ho ?rl,/ '.'ho :iks this ,"eelpe:
Michael J. Navitsky. ESQ., 4503 N. Front St., Harrisburg, PA 17110 for Plaintiffs
lndleste uial coun..1 Cor other p.tti.s if known:
Gary T. Lathrop. ESQ., 305 N. Front St.. HarrisburQ. PA 1710B for Defendants
This ~.. is Indy ior Iris!.
i\
St,r.ed:
?::nl SI",e:
Due: Marcil 25. 199B
Ac:orn\'y for:
Pl., i nt i ff<:
i;:, r:q r
c~
I
L'--' , v":
,).
"".,
, - ,
c.
L-:""': '.':1
V"' I
( - d
i.L L_ "
-
I' ,..-, c"
U I~'
""
.,
.
,
the next months and the pleadings were closed on February 6, 1996.
3. Interrogatories, Expert Witness Interrogatories and Request For
Production of Documents were propounded by Defendants to Plaintiffs on or about
August 9,1996. (Copies of the discovery are attached hereto as Exhibit "A").
4. Discovery proceeded fairly smoothly in this case until the deposition of
Dr. Blacksmith, which was scheduled for May 8, 1997, had to be postponed because
of his diagnosis with cancer and subsequent surgery and recovery. Thankfully, Dr.
Blacksmith's condition improved since that time. The deposition was ultimately taken
on December 18.
5. Although Plaintiffs provided an expert report of Dennis Kraus, M.D., an
otolaryngologist, in mid-1997, they have provided reports of additional or alternative
experts critical of Dr. Blacksmith's care right up through the present. The actuary
report of Harry M. Leister, Jr., F.S.A., was received at the end of January, 1998; the
report of Edward Zivic, M.D., a family practice expert, was received in early February
and the report of the treating ENT who is offering standard of care opinions, Roger J.
Levin, M.D., was received on March 23, 1998.
6. The deposition of Roger J. Levin, M.D. is scheduled for April 8, 1998.
It was the understanding of counsel for the Defendants that this would be a discovery
deposition which was desired by Defendants so that information concerning Mr. Ford's
current condition and prognosis can be gathered before scheduling an IME for him.
7. Plaintiffs' counsel now attempts to force Defendants' counsel to attend
,.
.'
'"
,
a videotape deposition for use at trial at that time without an opportunity to take a
discovery deposition and prepare a cross-examination prior to the time of the
videotape deposition.
8. Numerous discovery materials have been requested in the initial discovery
requests propounded by Defendants and following materials have not yet been
provided although counsel has agreed to do so. They include: the W2's forms of Mr.
Ford from 1992 through the present; the federal and state tax returns of the Fords,
including attachments for 1996; all medical records of Mr. Ford for the past year and
one-half, including records from Lorraine McDonald, M.D. and Drs. Moffit, Pease &
Lim; and identification and production for deposition of fact witnesses for the
Plaintiffs. Various follow-up letters concerning these materials are attached hereto as
Exhibit "8", including letters dated October 23, 1997, November 20, 1997, December
22, 1997, March 3, 1998 and March 30, 1998.
9. On the Praecipe For Listing Case For Trial filed by Plaintiffs' counsel last
week (and attached hereto as Exhibit "C") it is incorrectly certified by Mr. Navitsky
that "this case is ready for trial." All of the above discovery materials were requested
18 months ago and more recently and no objection has been made by Plaintiffs'
counsel to these appropriate requests. In addition it is anticipated that the Defendants
will be permitted to take the discovery deposition of Dr. Roger J. Levin prior to
videotaping him for use at trial. After the deposition transcript is received, it will be
- 3-
'.
-
" \
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify" - when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home address; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identify each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter",
"memorandum"; include the present location and identify its custodian. If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason for such disposition, the date thereof, and
identify its current or last known location and custodian.
C. "Concern", "concerned". or "concerning" - means referring or relating to,
pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "You". "your" - means the person in whose name this action is brought,
her employees, officers, representatives, agents, and attorneys, or any person working
for such persons.
..
5. With respect to each person you expect to call as an expert witness at the
trial of this case, state:
(a) His/her age, residence and business address;
(b) The name and address of his/her present employer or if self-
employed, the name of the business and his/her occupation;
(c) His/her educational background specifying colleges attended, dates
of attendance, degrees attained, and a detailed list of all writings
prepared by the expert or in which the expert participated in any
way whatsoever;
(d) Specific identification of all courses attended, seminars attended,
and other activities on the part of the expert within the past ten
years which were concerned with the subject for which the expert
was retained in this case;
(e) The name and address of the persons or firms for whom the
individual worked for the last ten years and a detailed description of
all duties at each place of employment. If the expert was self-
employed, state specifically and in detail the description of his/her
duties and responsibilities; and
"
...
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify" - when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home address; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identify each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter",
"memorandum"; include the present location and identify its custodian. If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason for such disposition, the date thereof, and
identify its current or last known location and custodian.
C. "Concern". "concerned", or "concerning" - means referring or relating to,
pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "You", "your" - means the person in whose name this action is brought,
her employees, officers, representatives, agents, and attorneys, or any person working
for such persons.
g. Reports of all experts who will be called by Plaintiffs to testify at trial. All
documents prepared by each expert identified, together with all correspondence between expert
and Plaintiffs or their agents, attorneys or anyone acting on Plaintiffs' behalf.
10. A current curriculum vitae for each expert expected to be called by Plaintiffs to
testify at trial.
11. All investigations, reports, test results, drawings, sketches, summaries or records
of this incident and the events surrounding this incident.
12. All medical and other bills concerning the injuries suffered by Plaintiffs.
13. All medical, psychiatric, psychological and mental health records pertaining to cure,
diagnosis and treatment provided to Plaintiffs by all providers.
14. All documents alleging and verifying lost wages or earnings in the possession of
Plaintiffs, their agents, employees or attorneys incident to the above-referenced matter, including
federal and state income tax returns and all W-2s and attachments for the past five (5) years.
15. X-rays, copies of x-rays and diagnostic tests relating to Plaintiffs' claim.
16. Diaries, journals, notes, or other writings made by Plaintiffs concerning the events
at issue in this case.
,"lfhlhlt C
. .. -.
.
PRAECIPE FOR U5'ID1G CASE FOR TRIAL
(~tusl be typewritten and submimu in duplicate)
TO 1HE PROTHONOTARY. OF C1.:~IBERLA."D COl::-ITY
P!C2se !ist ".he folluw'"l ~~c~
I.C~.~ ~ne)
( X
ior J\;RY t:ll1 21 (!Ie ~O;\l ,um ~i ~.d .~Ul:.
( ) (er :rUl without 5 jury.
RUSSELL FORD AND JOANN FORD,
. Plaintiffs
VS.
GARY L: BLACKSMITH, JR., M.D., AND
BLACKSMITH ASSOCIATES,
( )
(X )
,.,..
Trespass ()lotDr I(~e) G
::: ::>
Medical Maloractice'
(olher)
~
:::l
..."
':.~-;
..~'...?
, '
~,(.J
. ; ~I'l
. -i;~l
.', )
-:-rr.
...J
~
C.\PilON OF CASE
(mille <spuon must ~e slated in fu.ll)
c: ,~
(check ono) ~f G.:l
~
"..:.-
( ) .usu:npSlI q;~'" "
'"
u'
( ) Trespass - .-;)
Defendants
'l11e e1:ial list will be callec on
April 21, 199B
Trial.s commence on Mav lR. 199B
.
Pretrials will be held on April 29, 19~8
(Briefs are due 5 days before ?re-
e1:ials. )
(!be party lis:ing this case for tria
shall provide forthwith a copy of the
p,raecipe to all co~sel, p~suan: to
Iocal. Rule 214-1.)
:\0. 6691
Civil
1995
Michael J. Navitsky, Esq., 4503 N. Front St., Harrisburg, PA 17110 for Plaintiffs
Indlate the 3ttarnty who \\iU trr ~11: for the p:ltt"J .....hu !111.'S UUs :Jf~cc;pe:
lncilC2te uiaJ eou....1 for other parties if known:
Gar 1. La thro
305 N. Front St. Harri ur
Thb .:asa iJ lC5dy ior lIbl.
Sisr..d:
?::nl :".,,,,,
...........r.....
Dl:1;nt,ffc-
-- "'
....~
.
the next months and the pleadings were closed on February 6. 1996.
3. Interrogatories, Expert Witness Interrogatories and Request For
Production of Documents were propounded by Defendants to Plaintiffs on or about
August 9. 1996. (Copies of the discovery are attached hereto as Exhibit" A").
4. Discovery proceeded fairly smoothly in this case until the deposition of
Dr. Blacksmith.which was scheduled for May 8, 1997, had to be postponed because
of his diagnosis with cancer and subsequent surgery and recovery. Thankfully, Dr.
Blacksmith's condition improved since that time. The deposition was ultimately taken
on December 18.
5. Although Plaintiffs provided an expert report of Dennis Kraus. M.D., an
otolaryngologist. in mid-1997, they have provided reports of additional or alternative
experts critical of Dr. Blacksmith's care right up through the present. The actuary
report of Harry M. Leister. Jr., F.S.A., was received at the end of January, 1998; the
report of Edward Zivic, M.D.. a family practice expert, was received in early February
and the report of the treating ENT who is offering standard of care opinions, Roger J.
Levin, M.D.. was received on March 23, 1998.
6. The deposition of Roger J. Levin, M.D. is scheduled for April 8, 1998.
It was the understanding of counsel for the Defendants that this would be a discovery
deposition which was desired by Defendants so that information concerning Mr. Ford's
current condition and prognosis can be gathered before scheduling an IME for him.
7. Plaintiffs' counsel now attempts to force Defendants' counsel to attend
~
...\
.
a videotape deposition for use at trial at that time without an opportunity to take a
discovery deposition and prepare a cross-examination prior to the time of the
videotape deposition.
8. Numerous discovery materials have been requested in the initial discovery
requests propounded by Defendants and following materials have not yet been
provided although counsel has agreed to do so. They include: the W2's forms of Mr.
Ford from 1992 through the present; the federal and state tax returns of the Fords,
including attachments for 1996; all medical records of Mr. Ford for the past year and
one-half. including records from Lorraine McDonald, M.D. and Drs. Moffit, Pease &
Lim; and identification and production for deposition of fact witnesses for the
PLaintiffs. Various follow-up letters concerning these materials are attached hereto as
Exhibit "B", including letters dated October 23, 1997, November 20, 1997, December
22,1997. March 3,1998 and March 30,1998.
9. On the Praecipe For Listing Case For Trial filed by Plaintiffs' counsel last
week (and attached hereto as Exhibit "C") it is incorrectly certified by Mr. Navitsky
that "this case is ready for trial." All of the above discovery materials were requested
18 months ago and more recently and no objection has been made by Plaintiffs'
counsel to these appropriate requests. In addition it is anticipated that the Defendants
will be permitted to take the discovery deposition of Dr. Roger J. Levin prior to
videotaping him for use at trial. After the deposition transcript is received, it will be
- 3-
"'"hlhltA
; \
. ,
.
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify" - when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home address; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identify each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter",
"memorandum"; include the present location and identify its custodian. If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason for such disposition, the date thereof, and
identify its current or last known location and custodian.
C. "Concern", "concerned", or "concerning" - means referring or relating to,
pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "You", "your" - means the person in whose name this action is brought,
her employees, officers, representatives, agents, and attorneys, or any person working
for such persons.
.
5. With respect to each person you expect to call as an expert witness at the
trial of this case, :state:
(a) His/her age, residence and business address;
(b) The name and address of his/her present employer or if self-
employed, the name of the business and his/her occupation;
(c) His/her educational background specifying colleges attended, dates
of attendance, degrees attained, and a detailed list of all writings
prepared by the expert or in which the expert participated in any
way whatsoever;
(d) Specific identification of all courses attended, seminars attended,
and other activities on the part of the expert within the past ten
years which were concerned with the subject for which the expert
was retained in this case;
(e) The name and address of the persons or firms for whom the
individual worked for the last ten years and a detailed description of
all duties at each place of employment. If the expert was self-
employed, state specifically and in detail the description of hislher
duties and responsibilities; and
,
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify" _ when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home addres-s; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identify each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter",
"memorandum"; include the present location and identify its custodian. If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason for such disposition, the date thereof, and
identify its current or last known location and custodian.
c. "Concern", "concerned", or "concerning" - means referring or relating to,
pertaining to, commenting on. or connected with, in any manner whatsoever.
D. "You", "your" - means the person in whose name this action is brought,
her employees, officers, representatives, agents, and attorneys, or any person working
for such persons.
1. All statements, summaries of statements, transcripts of recorded statements or
interviews, relating to, raferring to or in any way describing the allegations and events with
respect to the subject matter upon which Plaintiffs base this action.
2. All documents prepared by Plaintiffs, their agents, or employers, or anyone acting
on their behalf, during investigation of the allegations and events with respect to the subject
matter upon which Plaintiffs base this action, or prepared in anticipation of litigation or trial of this
matter, excluding the mental impressions, conclusions or opinions of their counsel.
(NOTE: As referred to herein, "documents" includes written, printed, typed, recorded or
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, videos, films,
microfilm, microfiche, contracts, agreements, notes, memoranda, summaries, analyses,
projections, indices, work papers, studies, test reports, test results, surveys, diaries,
calendars, films, photographs, videos, movies, diagrams, drawings, sketches, minutes of
meetings or any other writing [including copies of the foregoing, regardless of whether the
parties to whom this request is addressed is not in the possession, custody or control of
the original) now in the possession, custody or control of Plaintiffs, their former or present
counsel, agents, employees, officers, insurers or any other persons acting on their behalf.)
3. All photographs, films or videotapes taken with regard to the events at issue.
4. All statements of any eyewitness(es) to the treatment rendered to the Plaintiffs.
5. All statements of any person(s) who will be called as a witness at trial.
6. All medical articles reviewed and consulted in anticipation of litigation or trial, which
will be used for purposes of cross-examination at trial.
7. All documents or other demonstrative evidence which will be introduced or used at
trial.
8. All documents regarding insurance benefits paid to this incident.
9. Reports of all experts who will be called by Plaintiffs to testify at trial. All
documents prepared by each expert identified, together with all correspondence between expert
and Plaintiffs or their agents, attorneys or anyone acting on Plaintiffs' behalf.
10. A current curriculum vitae for each expert expected to be called by Plaintiffs to
testify at trial.
11. All investigations, reports, test results, drawings, sketches, summaries or records
of this incident and the events surrounding this incident.
12. All medical and other bills concerning the injuries suffered by Plaintiffs.
13. All medical, psychiatric, psychological and mental health records pertaining to cure,
diagnosis and treatment provided to Plaintiffs by all providers.
14. All documents alleging and verifying lost wages or earnings in the possession of
Plaintiffs, their agents, employees or attorneys incident to the above-referenced matter, including
federal and state income tax returns and all W-2s and attachments for the past five (5) years.
15. X-rays, copies of x-rays and diagnostic tests relating to Plaintiffs' claim.
16. Diaries, journals, notes, or other writings made by Plaintiffs concerning the events
at issue in this case.
~vhlhlt r.
PRAECIPE FOR USTP./G CASE FOR TRIAL
(~tUSI be lypewrillen 3nd lubmilml in duplicalel
TO THE PROTHONOTARY. OF Cl:~IBERLA.~D COl.::-ITY
P!.:s. !ill :11. (ol1~wlnl <:IS':
I,C~'u ~n.)
( X) for ll:RY 1:111 u l~. ~.:u ;r:m ~f .::.d <our:.
( ) (or nUl wilhaut : jury.
C.\PTlON OF CASE
(entil'; aptian mus~ ~c Sl:t.d In ru.l1l
) Aw:nplil
r,
_.r;
~.~ :',.
,<:>
c.:>
7':
Trespus
.-;')
~
:::l
;ip2
.~,
'''7
..~tJ
.-'-n
i :~I
-0,:,
:In
':~
..-
~
(ch.ck one)
RUSSELL FORD AND JOANN FORD,
o Plaintiffs
VS.
GARY L: BLACKSMITH, JR., M,D., AND
BLACKSMITH ASSOCIATES,
.~.
:.,
'.,J
U.
( )
( )
( X )
. --
Tr..~ (~Iotor vel)iC!O) ::-2
~~ : ::>
Medical Maloractioe'
(olher)
Defendants
'01e eria 1 lis t will be callec on
April 21, 19.98
TriaLs cOIIllIll!nce on Mt1v 18. 199B
.
Pre trials will be held on April 29, 19~B
(Briefs are due 5 days before pre-
trials. )
('01e party listing this case for tiia
shall provide forthwith a copy of the
p'raecipe to all counsel, p~suant to
IocaL Rule 214-1.)
~o. 6691
CI.1I
19li.-
InWI. th. :IIOrnty who ..iU !oj' ~:IS' :'or lho jlury wh~ 111<. thiJ ?".Clpc:
Michael J. Navitsky, Esq., 4503 N. Front St., Harrisburg, PA 17110 for Plaintiffs
Indlat. uiaJ COUIU<I for oth.r putles if known:
Gary T. lathrop, Esq., 305 N. Front St., HarrisburQ, PA 1710B for Defendants
This ~ is rndy for lri:ll.
SiSr.ed:
?::nl S.",o:
n.... M,rrh ~'i 1 QQR
'..~p"'" (......
D1.,intirr('"
"- I:'I '-
c."f". -" l ~ ,:
1~. i:: 1 .
,',
UJ'
( 0),
,J.-' ,~ ,
,. 0
c.\; :-1
C)' I ,
~11.
_", (l' J
C t:-: w..
i-~ . ,-
Il. (f'; U
0 C,'
.
.
;~ .
~
~
THOMAS, THOMAS & HAFER, LLP
BY: Peter J. Curry, Esquire
IO~NTIFICA TION NO, t 6622
BY: Oary T. Lathrop
IDENTIFICATION NO. 765B2
306 North Front Str..t
P.O. B.a 999
Ha"lsburG. PA 17101.0999
Attorn.y. for O.fandantl
RUSSELL FORD and
JOANN FORD,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
n () "
NO. 95.6691 ..I} "
",
, -n
,) -,~
CIVIL ACTION. LAW I .,11
.,
,~ r
')
JURY TRIAL DEMANDED -'il
"
:.) ,.11
','
r-' ,-,j
..) ~
v.
GARY L. BLACKSMITH, JR.. M.D.
and BLACKSMITH ASSOCIATES,
Dofondonts
MOTION TO STRIKE PRAECIPE FOR
LISTING CASE FOR TRIAL
AND NOW, como Gory L. Blacksmith, Jr., M.D. and Blacksmith Associates, the
Defendants, by and through thoir counsol, Thomas, Thomas & Hafer, LLP, and
respectfully roquost that this Court striko tho Praocipo for Listing Case for Trial and
remove this caso from the May trial listing, os discovory in this matter is not yet
complete and tho coso is not roady for trial, avorring os follows:
1. Plaintiffs, Russell and Joonn Ford, filed 0 Complaint in this medical
malproctico mottor on or about November 21, 1995 alleging delay in the diagnosis of
cancer for Mr. Ford who underwent treatment and is now cured.
2. An Answer With New Moller and Rosponse by Plaintiffs were filed over
.."
.
.I
..
a videotape deposition for usa at trial at that time without an opportunity to take a
discovery deposition and prepare 0 cross,examination prior to the time of the
videotape deposition.
8. Numerous discovery materials have been requested in the initial discovery
requests propounded by Defendants and following materials have not yet been
provided although counsel has agreed to do so. They include: the W2's forms of Mr.
Ford from 1992 through the prosont; the federal and state tax returns of the Fords,
including attachmonts for 19!16; 011 medical records of Mr. Ford for the past year and
one-half, including records from Lorraino McDonald, M.D. and Drs. Moffit, Pease &
Lim; and identification and production for deposition of fact witnesses for the
Plaintiffs. Various follow,up letters concerning these materials are attached hereto as
Exhibit "B", including lellers doted October 23, 1997, November 20, 1997, December
22,1997, March 3.1998 and March 30,1998.
9. On the Praecipo For Listing Case For Trial filed by Plaintiffs' counsel last
week (and allachod heroto as Exhibit "C") it is incorrectly certified by Mr. Navitsky
that "this case is ready for trial." All of the above discovery materials were requested
18 months ago and moro recently and no objection has been made by Plaintiffs'
counsel to theso appropriate requests, In addition it is anticipated that the Defendants
Will be pormitted to take the discovery deposition of Dr. Roger J. Levin prior to
videotaping him for use at trial. After the deposition transcript is received, it will be
- 3 -
ElthlbltA
.... .
"
.
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diJries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify" - when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home address; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identify each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter",
"memorandum"; include the present location and identify its custodian. If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason for such disposition, the date thereof, and
identify its current or last known location and custodian,
C. "Concern", "concerned", or "concerning" - means referring or relating to,
pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "You", "your" - means the person in whose name this action is brought,
her employees, officers, representatives, agents, and attorneys, or any person working
for SLJch persons.
~
.
.
5. With respect to each person you expect to call as an expert witness at the
trial of this case, state:
(a) His/her age, residence and business address;
(b) The name and address of his/her present employer or if self-
employed, the name of the business and his/her occupation;
(c) His/her educational background specifying colleges attended, dates
of attendance, degrees attained, and a detailed list of all writings
prepared by the expert or in which the expert participated in any
way whatsoever;
(d) Specific identification of all courses attended, seminars attended,
and other activities on the part of the expert within the past ten
years which were concerned with the subject for which the expert
was retained in this case;
(e) The name and address of the persons or firms for whom the
individual worked for the last ten years and a detailed description of
all duties at each place of employment. If the expert \Vas self-
employed, state specifically and in detail the description of his/her
duties and responsibilities; and
..
...
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify" - when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home addres-s; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identify each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter",
"memorandum"; include the present location and identify its custodian, If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason lor such disposition, the date thereof, and
identify its current or last known location and custodian.
C. "Concern", "concerned", or "concerning". means referring or relating to,
pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "You", "your" . means the person in whose name this action is brought,
her employees, officers, representatives, agents, and attorneys, or any person working
for such persons.
1. All statements, summaries of statements, transcripts of recorded statements or
interviews, relating to, referring to or in any way describing the allegations and events with
respect to the subject matter upon which Plaintiffs base this action.
2. All documents prepared by Plaintiffs, their agents, or employers, or anyone acting
on their behalf, during investigation of the allegations and events with respect to the subject
matter upon which Plaintiffs base this action, or prepared in anticipation of litigation or trial of this
matter, excluding the mental impressions, conclusions or opinions of their counsel.
(NOTE: As referred to herein, "documents" includes written, printed, typed, recorded or
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, videos, films,
microfilm, microfiche, contracts, agreements, notes, memoranda, summaries, analyses,
projections, indices, work papers, studies, test reports, test results, surveys, diaries,
calendars, films, photographs, videos, movies, diagrams, drawings, sketches, minutes of
meetings or any other writing [including copies of the foregoing, regardless of whether the
parties to whom this request is addressed is not in the possession, custody or control of
the original] now in the possession, custody or control of Plaintiffs, their former or present
counsel, agents, employees, officers, insurers or any other persons acting on their behalf.)
3. All photographs, films or videotapes taken with regard to the events at issue.
4. All statements of any eyewitness(es) to the treatment rendered to the Plaintiffs.
5. All statements of any person(s) who will be called as a witness at trial.
6. All medical articles reviewed and consulted in anticipation of litigation or trial, which
will be used for purposes of cross-examination at trial.
7. All documents or other demonstrative evidence which will be introduced or used at
trial.
8. All documents regarding insurance benefits paid to this incident.
9. Reports of all experts who will be called by Plaintiffs to testify at trial. All
documents prepared by each expert identified, together with all correspondence between expert
and Plaintiffs or their agents, attorneys or anyone acting on Plaintiffs' behalf.
10. A current curriculum vitae for each expert expected to be called by Plaintiffs to
testify at trial.
11. All investigations, reports, test results, drawings, sketches, summaries or records
of this incident and the events surrounding this incident.
12. All medical and other bills concerning the injuries suffered by Plaintiffs.
13. All medical, psychiatric, psychological and mental health records pertaining to cure,
diagnosis and treatment provided to Plaintiffs by all providers.
14. All documents alleging and verifying lost wages or earnings in the possession of
Plaintiffs, their agents, employees or attorneys incident to the above-referenced matter, including
federal and state income tax returns and all W-2s and attachments for the past five (5) years.
15. X-rays, copies of x-rays and diagnostic tests relating to Plaintiffs' claim.
16. Diaries, journals, notes, or other writings made by Plaintiffs concerning the events
at issue in this case.
..
....
.
,
,
..
his complaints. After examination, Or. Blacksmith made tha diagnosis of acute upper
respire tory infection end prescribed fluids and a different antibiotic.
Mr. Ford was next seen by Or. Blacksmith on March B, stating that he still had a
productive cough, sore throat, rhinitis and congestion. He also noted the report of "possible
blood tinged sputum". On examination, Mr. Ford's throat revealed no exudate, he had no
fever, end his lungs were cleer. The diagnosis of acute bronchitis wes made end the patient
was advised to call Immediately if there was further questionable sputum production. During
a telephona call on Merch 17, Mr. Ford indicated that he was feeling well and was essentially
symptom free.
On March 22, he returned to Or. Blacksmith, saying that his sore throat began again
and that he had a productive cough. There were no further complaints of "possible blood
tinged sputum" mada on this date or thereafter to Or. Blacksmith. Or. Blacksmith noted a
slight nasal quality to Mr. Ford's voice and made the diagnosis of acute upper respiratory
infection, ruled out sinusitis. Mr. Ford was given more fluids, a different antibiotic and an
intranasal spray with improvement expected over the next week.
Mr. Ford returned to Or. Blacksmith on April 12 as scheduled, with some productive
cough and a continued sore throat. There was some discomfort noted in the posterior
pharynx. On examination, Or. Blacksmith found some Irritation at that location and noted that
there had been no change In the patient's voice. He dispensed some antibiotic and cough
syrup samples and asked Mr. Ford to return in one or two months.
On May 10, Mr. Ford returned with no cough or bronchitis. He reported that he
improved on the last antibiotic and had a good week with no symptoms and then his sore
throat began again. He also had developed some discomfort over his paranasal sinuses. Or.
Blacksmith's diagnosis was acute upper respiratory infection, rule out sinusitis. He prescribed
a decongestant and nasal spray and asked Mr. Ford to return in a month. He was also
concerned about Mr. Ford's elevated liver enzymes and asked that he have them retested
before his next scheduled visit.
Mr. Ford returned to Or. Blacksmith on June 9 with upper respiratory infection, nasal
congestion, sinusitis and persistent sputum. There was no complaint of sore throat, and no
slight nasal quality to the voice. Or. Blacksmith did hear some rhonchi in the larger airways
and he reinstituted antibiotic therapy. The patient was continued with nasal spray and asked
to return in several months, but call if he had any further problems.
On July 21, Mr. Ford did come back to Or. Blacksmith complaining of similar
symptoms of upper respiratory infection, including sinus congestion, sore throat and rhinitis.
Or. Blacksmith again noted a nasal quality to the speech and Or. Blacksmith arranged for an
x-ray of the paranasal sinuses and for an ENT consultation. An x-ray performed the
following day showed a 2 cm. rounded density in the right maxillary sinus, thought to be a
retention cyst. Mr. Ford was seen on July 28 by Russell Macaluso, M.D., an
otolaryngologist. Or. Macaluso observed nothing suspicious visually, but upon endoscopy, he
noted a large verrucous lesion of the epiglottis and the patient was referred to Roger Levin,
2
J
.I
u
M.D., at Hershey Medical Center for treatment. Mr. Ford underwent surgery, including a total
laryngectomy and neck dissection, which revealad no nodal Involvement of the squamous cell
carcinoma. He underwent radiation and has been pronounced "cured" by his treating
otolaryngologist.
II. ISSUES
In this medical malpractice metter, the basic issue is whether Or. Blacksmith's
menegement of Mr, Ford complied with epplicable stenderds of medical care. The
corresponding issue is whether Or. Blacksmith's management, if less than the applicable
standard of care, caused or was a substantial factor in producing the injurias and damages
allegad to have been sustainad by the Plaintiffs.
Plaintiffs' experts have suggested that there was a four month delay in diagnosis of
Mr. Ford's cancer and that this delay may have necessitated more invasive surgery than if
diagnosed earlier. The Defendants deny Plaintiffs' contentions and aver that all care rendered
by Or. Blacksmith was in conformity with applicable standards of care and that even if Mr.
Ford had been diagnosed four months earlier, he would have required the same surgery and
radiation and the outcome would have been the same as it is not disputed that he is cured.
III. LEGAL ISSUES
Whether Mr. Ford can claim loss of employment opportunity as it is argued that he is
still capable of working and the closing of his cleaning business is unrelated to his claims in
this case.
IV. WITNESSES
The Defendants intend to call Or. Blacksmith and the Fords as witnesses at the time of
trial. In addition, the defense reserves the right to call any witnesses identified in Plaintiffs'
Pre-Trial Memorandum. Furthermore, the Defendants will be calling several experts to testify
at the time of trial. although they will not be identified until thirty days after the records of Dr.
Lorraine McDonald and Ors. Moffit, Pease and Lim are received and reviewed. after receipt of
the transcript of the deposition of Or. Roger Levin, which is scheduled for April 29, 1998, and
after review of the report prepared by a vocational rehabilitation expert for the Defendants
who has proposed June 18 and July 7 as dates when he is available to evaluate Mr. Ford.
The Defendants also reserve the right to call as witnessas all of Mr. Ford's treating health
care providers although they are not in a position to be more specific until all medical and
Social Security records of Mr. Ford are received.
V. EXHIBITS
The defense anticipates that Plaintiffs' counsel will introduce the irrelevant medical
records as exhibits at the trial, including:
Records of Gary L. Blacksmith, M.D.;
3
u
~
"
Records of Russell Macaluso, M.D.;
Records of Hershey Medical Center;
Records of Lorraine McDonald, M.D.;
Records of Ors. Moffit, Pease and Lim.
Defense counsel also reserves the right to introduce these records and those that still
have not been received by the Social Security Administration and the records of Mr. Ford's
janitorial business, which folded several years after his diagnosis due to the loss of a major
client, which counsel has egreed to provide.
VI. SETTLEMENT STATUS
Plaintiffs have never extended e settlement demand in this case. This issue was
raised during a conversation between counsel last week and counsel for the Plaintiffs refused
to provide a demand as Dr. Blacksmith has not consented to settle. It was explained to Mr.
Navitsky that a reasonable demand may assist Or. Blacksmith in making up his mind to
consent to settle, although Mr. Navitsky refused.
VII. OTHER ISSUES
It is averred that Plaintiffs' counsel inappropriately filed a Praecipe to List this case for
trial before discovery in the case has been completed and a Motion to Strike has been filed in
that regard end attached hereto as Exhibit A. At this time, the discovery deposition of Mr.
Ford's treating otolaryngologist, Or. Roger Levin, is scheduled for April 29. In addition, the
records of Or. Lorraine McDonald and Ors. Moffit, Pease and Lim have been requested several
times of Plaintiffs' counsel over the last several months and he has refused to provide the
records. A Notice of Intent to subpoena the records went out two weeks ago and it is
anticipated that they will be received within the next six weeks unless Plaintiffs' counsel
provides an authorization to speed up the process. Counsel has also requested all business
records related to Mr. Ford's cleaning business for the past five years, as Plaintiffs' counsel
just determined in January that they will not withdraw their claim for loss of employment
opportunity as previously contemplated and have produced an economist's report. This also
has led to the scheduling of evaluation by a vocational rehabilitation expert, Or. Jason Walker,
on June 1B or July 7.1998, subject to the availability of Mr. Ford. Plaintiffs produced expert
reports in this case in January, February, and in March on the same day that the Praecipe
listing the case for trial was filed and it is anticipated that the Defendants will produce expert
reports within thirty days of completion of the outstanding discovery as indicated above.
Plaintiffs have also not obtained all Social Security records which counsel has agreed to do,
nor has a diagram been produced as requested in the deposition of Mrs. Ford.
By way of background and in response to various statements made by counsel, the
Complaint was filed in this case on November 21, 1995 and pleadings closed in February
1996. Plaintiffs' counsel did nothing to move along the case including making no discovery
requests until after the statute of limitations arguably passed and defense counsel filed
Interrogatories, Expert Witness Interrogatories and a Request for Production of Documents
and requested the depositions of Plaintiffs in August 1996. A copy of the correspondence
4
.
..
..
filing these discovery documents are attached hereto as Exhibit B. Counsel failed to suggest
deposition dates for Plaintiffs In spite of numerous requests and the Fords' depositions were
arbitrarily noted for November 6, 19911. The depositions were rescheduled twice upon
request of Plaintiffs' counsel and finally went ahead In February 1997. Copies of confirming
correspondence are attached hereto as Exhibit C. Or. Blacksmith's deposition was then
scheduled for May and was postponed because of his diagnosis with cancer, hospitalization
and treatment. Or. Blacksmith's deposition was rescheduled in October for December 18 and
went forward as planned.
Although it is admitted that Mr. Navitsky threatened to list this case for trial in 1997,
it was ba!ore Or. Blacksmith's deposition and other preliminary discovery was completed as
indicated in the correspondence attached in Exhibit O. Defense counsel did not strongly press
requests for some medical and business records over tho months because Plaintiffs' counsel
was contemplating withdrawal of the claim for loss of employment opportunity as
documented in the letter attached as Exhibit E. Towards the end of January 1998, counsel
answered this question indirectly by filing the report of an economist. Plaintiffs' counsel
provided additional expert reports in February and on March 23, 199B, when the case was
listed for trial without providing defense cO<lnsel with an opportunity to remind him of
outstanding discovery and not allowing Defendants adequate time to respond with expert
reports.
Defense counsel respectfully requests that this matter be continued to the September
trial term so that discovery can be completed. Or. Blacksmith is not available for the July trial
term, as he will be in Alaska, a trip which was planned and for which nonrefundable monies
were paid nearly a year ago.
Re5pectfully submitted,
THOMAS, THOMAS 8< HAFER, LLP
By
~~A~' --
.-7. eter. Curry, Esquire
1.0. No. 16622
/' Gary T. Lathrop, Esquire
1.0. No. 766B2
306 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7127
Attorneys for Defendants
GARY L. BLACKSMITH, JR., M.D. and
BLACKSMITH ASSOCIATES
6
~yhlhlt A
"
ot
"
.
the next months and the pleadings were closed on February 6, 1996.
3. Interrogatories, Expert Witness Interrogatories and Request For
Production of Documents were propounded by Defendants to Plaintiffs on or about
August 9,1996. (Copies of the discovery are attached hereto as Exhibit "A").
4. Discovery proceeded fairly smoothly in this case until the deposition of
Dr. Blacksmith,which was scheduled for May 8, 1997, had to be postponed because
of his diagnosis with cancer and subsequent surgery and recovery. Thankfully, Dr.
Blacksmith's condition improved since that time. The deposition was ultimately taken
on December 18.
5. Although Plaintiffs provided an expert report of Dennis Kraus, M.D., an
otolaryngologist, in mid-1997, they have provided reports of additional or alternative
experts critical of Dr. Blacksmith's care right up through the present. The actuary
report of Harry M. Leister, Jr., F.S.A., was received at the end of January. 1998; the
report of Edward Zivic, M.D., a family practice expert, was received in early February
and the report of the treating ENT who is offering standard of care opinions, Roger J.
Levin, M.D.. was received on March 23, 1998.
6. The deposition of Roger J. Levin, M.D. is scheduled for April 8, 1998.
It was the understanding of counsel for the Defendants that this would be a discovery
deposition which was desired by Defendants so that information concerning Mr. Ford's
current condition and prognosis can be gathered before scheduling an IME for him.
7. Plaintiffs' counsel now attempts to force Defendants' counsel to attend
I
..
a videotape deposition for use at trial at that time without an opportunity to take a
discovery deposition and prepare a cross-examination prior to the time of the
videotape deposition.
8. Numerous discovery materials have been requested in the initial discovery
requests propounded by Defendants and following materials have not yet been
provided although counsel has agreed to do so. They include: the W2's forms of Mr.
Ford from 1992 through the present; the federal and state tax returns of the Fords,
including attachments for 1996; all medical records of Mr. Ford for the past year and
one-half, including records from Lorraine McDonald, M.D. and Drs. Moffit, Pease &
Lim; and identification and production for deposition of fact witnesses for the
Plaintiffs. Various follow-up letters concerning these materials are attached hereto as
Exhibit "S", including letters dated October 23. 1997, November 20. 1997, December
22, 1997, March 3,1998 and March 30,1998.
9. On the Praecipe For Listing Case For Trial filed by Plaintiffs' counsel last
week (and attached hereto as Exhibit "C") it is incorrectly certified by Mr. Navitsky
that "this case is ready for trial." All of the above discovery materials were requested
18 months ago and more recently and no objection has been made by Plaintiffs'
counsel to these appropriate requests. In addition it is anticipated that the Defendants
will be permitted to take the discovery deposition of Dr. Roger J. Levin prior to
videotaping him for use at trial. After the deposition transcript is received. it will be
- 3-
Exhibit A
(
"
<
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify". when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home address; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identify each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter",
"memorandum"; include the present location and identify its custodian. If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason for such disposition, the date thereof, and
identify its current or last known location and custodian.
C. "Concern", "concerned", or "concerning" - means referring or relating to,
pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "You", "your" - means the person in whose name this action is brought,
her employees, officers, representatives, agents, and attorneys, or any person working
for such persons.
5. With respect to each person you expect to call as an expert witness at the
trial of this case, state:
(a) His/her age, residence and business address;
(b) The name and address of his/her present employer or if self-
employed, the name of the business and his/her occupation;
(c) His/her educational background specifying colleges attended, dates
of attendance, degrees attained, and a detailed list of all writings
prepared by the expert or in which the expert participated in any
way whatsoever;
(d) Specific identification of all courses attended, seminars attended,
and other activities on the part of the expert within the past ten
years which were concerned with the subject for which the expert
was retained in this case;
(e) The name and address of the persons or firms for whom the
individual worked for the last ten years and a detailed description of
all duties at each place of employment. If the expert was self-
employed, state specifically and in detail the description of his/her
duties and responsibilities; and
orders, photographs, microfilms, resolutions, books, computer printouts, computer
cards, papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs,
recording wires, manuals, regulations, rules, and forms.
B. "Identify" - when used with reference to a person, shall mean and include
the full name, present or last known business address, and if an individual, present or
last known home addres-s; each of his or her employers titles with respect to the
period covered by these Interrogatories; a description of each duty and responsibility
held by each such individual. When used with references to a document or writing,
the work "identify" shall mean to include the date it was written; identity each person
to whom it was addressed and identify each person to whom a copy was identified
as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "Iener",
"memorandum"; include the present location and identify its custodian. If any
document or writing is no longer in your possession or subject to your control, state
what disposition was made of it, the reason for such disposition, the date thereof, and
identify its current or last known location and custodian.
C. "Concem", "concerned", or "concerning" - means referring or relating to,
pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "You", "your" - means the person in whose name this action is brought,
her employees, officers, representatives, agents, and anorneys, or any person working
for such persons.
1. All statements, summaries of statements, transcripts of recorded statements or
interviews, relating to, referring to or in any way describing the allegations and events with
respect to the subject matter upon which Plaintiffs base this action.
2. All documents prepared by Plaintiffs, their agents, or employers, or anyone acting
on their behalf, during investigation of the allegations and events with respect to the subject
matter upon which Plaintiffs base this action, or prepared in anticipation of litigation or trial of this
matter, excluding the mental impressions, conclusions or opinions of their counsel.
(NOTE: As referred to herein, "documents" includes written, printed, typed, recorded or
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, videos, films,
microfilm, microfiche, contracts, agreements, notes, memoranda, summaries, analyses,
projections, indices, work papers, studies, test reports, test results, surveys, diaries,
calendars, films, photographs, videos, movies, diagrams, drawings, sketches, minutes of
meetings or any other writing [inCluding copies of the foregoing, regardless of whether the
parties to whom this request is addressed is not in the possession. custody or control of
the original] now in the possession, custody or control of Plaintiffs, their former or present
counsel, agents, employees, officers, insurers or any other persons acting on their behalf.)
3. All photographs, films or videotapes taken with regard to the events at issue.
4. All statements of any eyewitness(es) to the treatment rendered to the Plaintiffs.
5. All statements of any person(s) who will be called as a witness at trial.
6. All medical articles reviewed and consulted in anticipation of litigation or trial, which
will be used for purposes of cross-examination at trial.
7. All documents or other demonstrative evidence which will be introduced or used at
trial.
8. All documents regarding insurance benefits paid to this incident.
9. Reports of all experts who will be called by Plaintiffs to testify at trial. All
documents prepared by each expert identified, together with all correspondence between expert
and Plaintiffs or their agents, attorneys or anyone acting on Plaintiffs' behalf.
10. A current curriculum vitae for each expert expected to be called by Plaintiffs to
testify at trial.
11. All investigations, reports, test results, drawings, sketches, summaries or records
of this incident and the events surrounding this incident.
12. All medical and other bills concerning the injuries suffered by Plaintiffs.
13. All medical, psychiatric, psychological and mental health records pertaining to cure,
diagnosis and treatment provided to Plaintiffs by all providers.
14. All documents alleging and verifying lost wages or earnings in the possession of
Plaintiffs, their agents, employees or attorneys incident to the above-referenced matter, including
federal and state income tax returns and all W-2s and attachments for the past five (5) years.
15. X-rays, copies of x-rays and diagnostic tests relating to Plaintiffs' claim.
16. Diaries, journals, notes, or other writings made by Plaintiffs concerning the events
at issue in this case.
Cvhlhlt ~
Exhibit 0
PRAECIPE FOR USTI'lG CASE fOR TRl....L
(~Iwi be lypewrillen ~nd submimd in duplicate I
TO THE PROTHOi'iOTARY,OF Ct:~IBERLA1'1D COL':"iTY
P!c:ue !ist 1\c folluwin! ~:Je:
r.C~.d ~ne)
( X) (or Jl.:RY 1:111 u ~~. ":tl :.m. oi .:i.a <our:.
( ) (cr :rUI without ~ jury.
RUSSELL FORD ANO JOANN FORD,
o Plaintiffs
VS.
GARY L: BLACKSMITH, JR., M.D., AND
BLACKSMITH ASSOCIATES,
)
)
( )
( X )
c..:l
(J.
o
.."
--<
~p
::f?
,..0
...-,-,
.~.~ ?~~
.:rr.
',J
-I
.~
~
C.>J>'TlON OF CASE
(cn1l:e c:ption m~t ~e lut.d in fuU)
. .
(ch.ck ene)
'"
G:>
(
Auu:"psit
G
_r
~{~::.
, '.
.~~
Tmp...
-..
- -'
Defendants
The tria 1 list will be eallec on
April 21 , 19S1l
Trials eOllllllf!nee on May 18. 199B
.
Pretrials will be held on Apri I 29, 19~B
(Briefs are due 5 days before pre-
tria I..s . )
(The ~ty lis:ing this case for tii~
shall provide forthwitil a copy of the
~raeeipe to all eo~sel, pcrsuanc to
Ioeal Rule 214-1.)
~o. 6691
Civil
'Q 95
..-
Inwt. the ~t:Otn'Y ,,'ho "ill 1.-; .:>>: ,'or :he i"""" ,,'hu :11<. !his ?r,e.:p.:
Michael J. Navitsky, ESQ.. 4503 N. Front St., Harrisburg, PA 17110 for Plaintiffs
l:\liiC2t. ui:ll .0u...1 for other putil:s if known,
Gary T. Lathrop, ESQ., 305 N. Front St.. HarrisburQ, PA 17108 for Defendants
This ,':ISoI is rndy ior lri>!.
SiSr"d:
?::nl :\1::1"
EllhlbltB
Exhibit C
. .
Exhibit 0
Exhibit E
Mr. Ford's cancer would not have spread, he would not have needed
surgery or an extensive surgery, and he would still have a
functional voice, which he currently does not, and will never
regain.
2. plaintiffs admit that the Defendants answered the
complaint in January of 1996.
3. plaintiffs admit that the Defendants propounded
Interrogatories and Request for Documents, to which they provided
responses promptly.
4. plaintiffs admit that Dr. Blacksmith's deposition was
delayed substantially because of his illness.
5. plaintiffs admit that they have provided Defendants with
everything that was asked for in discovery and that the Defendants
were provided with the report of Dr. Kraus on May 1, 1997, with the
economic report of Mr. Leister on January 19, 1998, with the report
of Dr. Zivic on January 29, 1998, and with the report of Dr. Levin
on March 19, 1998. plaintiffs further admit that Defendants'
Interrogatories were answered on November 18, 1996 and that the
Defendants were provided with the Plaintiffs' tax returns and
social security decision on February 24, 1997. plaintiffs further
admit that the defense was provided with the records of Plaintiff's
treating physicians and Hershey Medical Center on september 24,
1996. plaintiffs further admit that the defense was provided with
an additional copy of Dr. Levin's records from Hershey Medical
Center on April 1, 1997. plaintiffs further admit that on May 1,
1997, the Defendants were put on notice of plaintiffs' intention to
2
list the case for trial. plaintiffs further admit that the defense
was even provided with the curriculum vitae of Dr. Kraus on May 30,
1997, despite the fact that this is not required under our rules of
discovery. Plaintiffs further admit that on september 4, 1997, the
defense was once again provided with a copy of their tax returns
and W2 forms that were received from the Internal kevenue service.
Plaintiffs further admit that on September 12, 1997, the defense
was provided with Mr. Ford's complete Social Security file.
Plaintiffs fur~her admit that on March 19, 1998, the defense was
provided witll not only a copy of Dr. Levin's letter, but yet
another copy of Dr. zivic's report and the economic report of
Mr. Leister, and were advised that Plaintiffs intended to list the
case for trial. A photocopy of undersigned counsel's April 2, 1998
correspondence to defense counsel is attached as Plaintiffs'
Exhibit C.
6. Plaintiffs admit that the deposition of Dr. Roger Levin
was scheduled for April 8, 1998. The remainder of the allegations
are denied. Plaintiffs, not defense counsel, arranged for the
deposition of Dr. Levin. Dr. Levin was Plaintiff's treating
physician following the Defendant's negligence. Dr. Levin operated
on Mr. Ford and has continued to monitor his condition. His
deposition was scheduled for use at trial. At defense counsel's
request, the date of the deposition was set for April 8, 1998.
3
This deposition was never noticed as a discovery deposition.
Defense counsel never requested a discovery deposition of Dr.
Levin. A defense medical examination was never requested by
defense counsel.
7. Denied. When defense counsel was contacted concerning
the scheduling of Dr. Levin's testimony so that his testimony could
be taken by the Plaintiffs for use at trial, defense counsel
requested that the deposition be scheduled for April 8, 1998 or
April 15, 1998. Defense counsel never requested a discovery
deposition. Defense counsel never requested a defense medical
examination.
8. Denied. Defense counsel has been provided with all
documents requested, and defense counsel knows well who the
witnesses are to this case. We all can misplace things, and it is
assumed that is what occurred in this case at defense counsel's
office. Referring to Plaintiffs' Exhibit c, the April 2, 1998
correspondence, records have been provided time and time again.
9. Denied. This is case is ready for trial. Dr. Levin's
deposition may not be taken by the Defendants under our rules of
discovery. Defense counsel has been provided with Dr. Levin's
report. No medical examination has ever been requested and a
decision to have one conducted at this point is too late and should
be denied.
10. Denied. Defendants have learned nothing new in well over
a year as to Plaintiffs' allegations and abilities to prove this
case. They knew from the outset that Dr. Blacksmith failed to
4
EOWARD J. ZIVIC. M, D.
8808 'RANK.TOWN ROAD
PITT..URGH, ~A 1523'
TUI~HONI 731"2870
Michael J. Navitsky
ANGINO & ROVNER
4503 North Front street
Harrisburg, Pa. 17110-1706
January 23, 1998
RE: Russell Ford
Dear Mr. Navitsky:
At your request, I have reviewed the deposition of Mr.
Russell Ford, Dr. Gary L. Blacksmith Jr., the medical records
of Dr. Blacksmith and the Hershey Medical Center. Based on
this review I have made the following observations and reached
the following conclusions.
Mr. Ford was a 46 year old white male with a long history
of significant alcohol and tobacco abuse, placing him at
significant risk for the development of oropharyngeal, upper
respiratory, or pulmonary carcinomas. In reviewing Dr.
Blacksmith's records, the significant time frame, I feel,
relative to the care of Mr. Ford revolves around the eight month
period from December 1993 through July 1994. I found the care
he rendered to Mr. Ford from 1963 to December of 1993 proper,
correct, and in keeping with the accepted standard of care for
the community.
As noted in Mr. Ford's records, he developed symptoms of
an upper respiratory-bronchial problem for which he sought
medical treatment in December of 1993. He antedates this history
of a cough for approximately two months. He was seen in February
and twice in March, and for all intents and purposes, despite
varying antibiotic treatments, did not significantly improve,
nor did his symptomotology change. particularly worrisome in
the review of the records is the question of hemoptysis. The
second visit in March, I feel, was a particularly critical visit
relative to the care of Mr. Ford. We have a problem relative
to upper respiratory symptomotology which had previously resolved
without incident now not responding to accepted adequate therapy.
The uncertainty of a particularly dangerous symptom, namely
hemoptysis, in a heavy smoker places the physician in a position
to investigate for the possibility of life threatening problems,
specifically, does the patient have an early cancer growing
somewhere causing this.
At this stage I feel Mr. Ford should have had studies done
to investigate the cause of his refractory problem. A chest
x-ray should have been done and if this failed to demonstrate
the reason for the chronicity of this problem, specialty
consultation should have been obtained. Also, on the March
PLAINTIFF'S
EXHIBIT
A-
EOWARO J. ZIVIC. M, 0,
22, visit a change is noted in the quality of Mr. Ford's voice.
To assume that your clinical judgment is sufficient as to
determining the cause of this without properly investigating
the cause of this change is courting disaster, and further delays
proper therapy for whatever condition is causing Mr. Ford's
problem.
He was then seen with the same problem in April, May, June
and July. I feel that by not properly investigating the etiology
of the symptoms following the second visit in March, Dr.
Blacksmith's care fell below the accepted standards of the
community. To not investigate following the April, May and
June visit, I feel, is unconscionable behavior on the part of
a physician and I feel sets a new standard for disregarding
significant important signs and symptoms which could be life
threatening. This delay in therapy may ultimately prove to
be a death sentence for Mr. Ford. Certainly I recognize as
all physicians do that there is no guarantee regarding the
treatment of cancer, but it is accepted without question that
the earlier any tumor is found and treated, the greater the
chance of curing the patient without performing mutilating
disfiguring surgery, as was necessary in order to attempt to
affect a cure for Mr. Ford. Had he been properly investigated
following the visit in March, I would not be reviewing this
record for unaccepted quality of care.
In summary, I feel Dr. Blacksmith was negligent and that
his care fell below accepted standards of care for a family
practitioner in that he failed to perform proper studies and
seek proper consultation for complaints that reflected that
a serious potentially life threatening situation existed, and
the failure to investigate these complaints in a timely fashion
constitute in my professional opinion medical negligence.
EJZ/jmc
Sincerely,
_ ./I // ,
c-t-V,/:..;... ?
,.?,,;
Edward J. Zivic M.D.
Dennis H. Kraus, M.D.
1275 Yolk AI/llnue New York. New York 10021
(212) 6395621 . Fex (2121717,3302
December 12, 1996
Mr. Michael J. Navitsky
4503 North Front Street
Harrisburg, PA 17110-1708
RE: Russell Ford
Dear Mr. Navitsky:
As we have discussed, 1 have reviewed the medical records pertaining 10 the care of Mr.
Russell Ford. You had provided me with records from the patienl's multiple out-patien1
visi1S with Dr. Blacksmith, initial consultation by Dr. Russell Macaluso, and his entire
records from Hershy Medical Center. As I have discussed, the focus of my review is
whether a delay in diagnosis existed in the management of the patienl's care while being
evaluated by Dr. Gary Blacksmi1h. The patient was ini1iallyevaluated for complaint of
cough on 12/7/93. The patient was treated for acute bronchitis with Ceftin 250 109 1 PO
BID #10 with I refill. He was advised to n01ify 1he office if there was no improvement in
his condition. On 2/22/94, the patient continued to complain of cough and discomfort
over the posterior pharynx. There was notation of his continued use of tobacco
produc1s. The patient was treated with Amoxicillin250 109 I PO TID #30 and instructed
to consume large quantities of fluids. He was advised to return in several months. The
patient returned prior to his scheduled appointment on 3/8/94 complaining of symptoms
which were interpreted as acute bronchitis. There was a question of blood tinged
sputum. On 3/22/94, the patient con1inued to complain of slight nasal quality 10 his
speech and he was treated with a combination of Beconase AQ 1 spray in each nostril
BID and peE 500 109 1 PO BID #24, On 4/12/94, the patient continued 10 complain of
discomfort over the posterior pharynx and a productive yellow sputum. He was 1reated
Wi1h Augmenten 250 109 I PO Q8 hours. He was advised to return in 1-2 months. The
patient was then seen on 5/10/94. His major complaint was of discomfort over the
paranasal sinuses. Dr. Blacksmith continued to note a slight nasal quali1y to his speech.
He was again encouraged to use Vancenase AQ and a decongestanl. The patien1 was
evaluated on 6/9/94 complaining of persistent sputum. He was treated with Augmenten
500 109 Q8 #21 with I refill, Bromfed capsules and advised to continue to use the
Vancenase. He was instructed to contact 1he office should 1here be reoccurrence of his
symptoms. The patient was seen for the last time by Dr. Blacksmith on 7/21/94 for
upper respiratory trac1 infec1ion. There continued to be a nasal quality to his speech. Al
this juncture, the patient was advised to have an ENT consultation.
The major issues which have arisen in reviewing this case is whether a delay in diagnosis
alerted the patient's outcome. The treating physician was aware of 1he patienl's 60 pack
..
PLAINTIFF'S
EXHIBIT
(3
PennState ueisinger
Hcalth Systcm
/
February 4, 1998
Sect Inn or ()lnlur,n~llluJt\ .
Itud und 'l'<<:k Sur~l'r~
M.l' "'''1
P.O. Un\ X~ll
IIcr\hc~. 1''\ 1711.'.'.lIX:'iO
717 ~31 N<l~~ Td
717 ~31 h1t~1 1'0,
Miehael J. Navitsky
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, P A 17110.1708
RE: FORD,RUSSELL
MSHMC#328361
Dear Mr. Navitsky:
I am writing this lelter on behalf of my pati~nt, Russell Ford, who you are representing
in a claim against Dr. Gary Blacksmith. As you know, I have been the surgical
oncologist involved with Russell's larynx cancer care. This lelter will serve as the
summary of my care for Russell to date. I have also included my most recent office
notes.
Mr. Ford initially presented to me on August 2. 1994 after referral by Dr. Russell
Macaluso, an otolaryngologist in Carlisle. Mr. Ford. at that time. had been told that he
had a cancer of his larynx by endoscopic evaluation although a endoscopic biopsy had
not yet been performed, He had several medical problems complicating this history
including coronary anery disease, angina, and tobacco and alcohol abuse. He was
clinically staged, in the office and on the basis of his imaging studies. as a nNOMO,
stage 3. larynx cancer (supraglottic). The history, at my initial evaluation, was that Mr.
Ford initially noted symptoms back in December of 1993 nine months prior to my
evaluation. His symptoms included a mild sore throat and he was treated for an upper
respiratory infection, There was an apparcnt change in his symptoms in March of 1994
when hc had a questionable history of hemoptysis, There was also some voice change
consistent with a "hot potato" voice. He had also begun to lose weight and.despite
being an obese man. had lost thiny pounds prior to my evaluation in August.
Ultimately, he was referred to an ENT. Dr. Macaluso, who nexibly endoscope the
patient in the offic~ and identified this large, partially obstructing, supragloltie tumor. I
am unclear of the date that Dr. Macaluso saw the patient and I do not have any records
as to what care was provided to the patient in the interim between March 10, 1994 and
his evaluation in my office in August.
He was referred for a cardiology evaluation given his history of angina and previous
coronary anery disease. lIe reponedly had a catheterization done in 1986 which
showed one panially occluded vessel and was not fell to be an angioplasty candidate.
He did admit to having angina on exenion. During his cardiology work-up a stress test
was performed. He was unable to perform a treadmill exercise and so a Dipyridamole
Thallium study was performed. This, fonunately, showed appropriate hemodynamic
response, normal myocardial perfusion and no ischemic EKG changes. and he was
cleared for surgery. On August 5, 1994 he underwent a localtracheoslomy and direct
laryngoscopy and biopsy, This came back with a diagnosis of squamous carcinoma as
expected, and he was staged as n T3NOMO. stngc 3, larynx cancer based on pre-
epigloltic spnce invasion, After discussing the risks nnd benefits with surgical therapy
JOSEI'll N, NlUlLl.tl
11!IlIlYS. HYMAIl
DMID 1. urrz
IolJCIlAIlL a KOSIK
PAWJttA 0. SIltlIWI
RICIWD A. SAIlLOCIt
Angino
DRovner
NllllUlC.OUON
NIOIAEL I. NAVTlUY
IOSIlPII N. DORIA
DUANB S.1IAIUUCIl
IAIolIlS DoCINTI
DAVID S. WlSNBSICI
US11!D IN
11IE BFSI'lAWYFlS
-IN-
AMERICA
RlClIAIlD C. ANOINO
NI!IL J. ROYNEIl
April 2, 1998
Gary T. Lathrop, Esquire
Thomas, Thomas & Hafer, LLP
305 North Front street
P.O. Box 999
Harrisburg, PA 17108-0999
In Re: Ford v. Blacksmith. et al
Dear Gary:
Thank you for your letter of March 30, 1998. It is most
certainly an honor to have Pete Curry join us in this case.
On February 16, 1998, you spoke with my secretary, Jessie,
concerning the deposition of Dr. Levin. You requested that the
deposition take place either on April 8 or 15, 1998. She worked
very hard with Dr. Levin's office to rearrange schedules so that
the deposition could take place as requested on April 8, 1998. It
was promptly scheduled and noticed. There was no discussion about
you first scheduling a "discovery deposition."
I am aware of no case in Pennsylvania which would authorize
you to take a discovery deposition of an expert. While I think
this would be beneficial and works well in other states, this, to
my knowledge, is not the law in Pennsylvania.
I am also not aware of any case in Pennsylvania which holds
that a treating physician's deposition cannot take place without
the Defendant first conducting a discovery deposition. In any
event, if this was your intent, and there was some legal basis for
authorizing such a deposition, it could and should have been
addressed in February.
I sent you the Hershey Medical Center chart as well as
Dr. Macaluso's chart on September 24, 1996. I do not intend to
recopy either of these charts unless you need them again. I have
never objected to you issuing a subpoena to obtain yet another copy
of either chart.
S2410/JKW
PLAINTIFF'S
EXHIBIT
C
4503 NORTH FRONT STREET, HARRISBURG. PA 17110.1708
(717) 238-8791
FAX (7
Page TWO
Gary T. Lathrop, Esquire
April 2, 1998
I am enclosing the last copy that I will send you of the
Ford's W2 forms, which were sent to me by the Internal Revenue
service back in January of 1997. As I previously reported to you,
we needed to obtain these from the Internal Revenue service. This
information was given to you back on September 4, 1997.
Fact witnesses include my clients and the Defendant. Both
have been deposed. I cannot think of any other fact witnesses at
this time. Can you?
Please give my best regards to Pete and I suggest that he
enter an appearance in this case. Please let me know if I should
direct future correspondence to him. This case has been listed for
the cumberland county term, which begins on May 18, 1998.
A thorough review of this file reveals that on September 24,
1996, I sent you the records of Dr. Macaluso and Hershey Medical
Center. On November 18, 1996, I answered your interrogatories. On
February 24, 1997, I sent you Mr. and Mrs. Ford's tax returns and
the social security decision. On April 1, 1997, I provided you
with Dr. Levin's records from Hershey Medical center. On May 1,
1997, I enclosed Dr. Kraus' report and advised you that I intended
to list the case for trial. On May 30, 1997, I provided you with
Dr. Kraus' curriculum vitae. On september 4, 1997, I once again
provided you with my clients' tax returns and W2 forms that I
received from the Internal Revenue Service. On September 12, 1997,
I provided you with my client's social security file. On
January 19, 1998, I provided you with our economic report from
Mr. Leister. On January 29, 1998, I provided you with our report
from Dr. Zivic. On March 19, 1998, I provided you with a copy of
Dr. Levin's letter as well as another copy of Dr. zivic's report
and Mr. Leister's report and advised you that I was listing the
case for trial.
Dr. Levin is Mr. Ford's treating physician and he has also
agreed to serve as u medical expert against Dr. Macaluso. I will
try to reschedule his video-deposition because Pete is just now
getting involved in the case. The deposition must, however, taKe
place prior to the cumberland county May trial term.
Alternatively, I will determine if Dr. Levin could testify live at
trial.
.'
VS.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-6691
RUSSELL FORD and JOANN FORD,
plaintiffs
GARY L. BLACKSMITH, JR., M.D.
and BLACKSMITH ASSOCIATES,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANtmlGINAL
PLAINTIFFS' PRETRIAL MEMORANDUM
1. This is a medical malpractice case involving throat
cancer. Mr. Ford was diagnosed with throat cancer on July 28, 1994
by Dr. Russell Macaluso.
Mr.
Ford
had
been
a
patient
of
the
Defendant,
Dr. Gary Blacksmith, who served as his family physician, from 1983
to 1994.
Over these years, Mr. Ford primarily visited with
Dr. Blacksmith for control of his hypertension.
The time period involved in this medical negligence case is
from December 7, 1993 up until Mr, Ford's last visit with
Dr. Blacksmith on July 21, 1994. Basically, during this period of
time, Dr. Blacksmith treated Mr. Ford, unsuccessfully, for what he
believed to be an upper respiratory tract infection, or acute
bronchitis, and/or sinusitis. In reality, however, Mr. Ford, who
had a history of smoking cigarettes from the age of 13, was
suffering from laryngeal cancer.
The tumor involved the
epiglottis.
Finally, on the July 21, 1994 visit, after again
diagnosing Mr. Ford with an upper respiratory tract infection with
sinusitis, Dr. Blacksmith referred Mr. Ford to Dr. Macaluso, who
immediately upon examination, diagnosed Mr, Ford with "advanced
131758/JKW
.
superglottic neoplasm." Mr. Ford was referred to Hershey Medical
Center where he came under the care of Dr. Roger Levin, who
surgically removed the tumor and Mr. Ford's voice box.
The Fords contend that Dr. Blacksmith could have and should
have diagnosed, or at least considered, throat cancer and made the
appropriate referral much earlier than July of 1994. Dr. Levin at
Hershey Medical Center agrees. His report dated February 4, 199B
is attached to this Memorandum. Furthermore, Dr. Edward zivic, a
family practitioner himself from Pittsburgh, concurs. Dr. zivic's
report dated January 23, 199B is attached as well. Dr. Dennis
Kraus, an expert in the field of surgical oncology, further agrees
that Dr. Blacksmith was negligent in failing to make the diagnosis
and that this delay provided the cancer an opportunity to progress
to the point where radical surgery was necessary. Had the cancer
been diagnosed earlier, the surgery, or at least a much simpler
one, may have been all that would have been necessary. Dr. Kraus'
December 12, 1996 report is attached to this Memorandum as well.
As of this time, it appears that Mr. Ford's cancer has not
reoccurred. However, he lacks a functional voice due to
post-operative scaring which has greatly complicated, if not
eliminated, the ability for him to use an artificial voice box.
Mr. and Mrs. Ford were self-employed in a cleaning business.
Mr. Ford was able to work at this business until he lost the
functional use of his voice. Mr. Ford asserts a claim for lost
2
.
.
wage earning capacity and submits a photocopy of the January 14,
1998 report from Mr. Harry Leister, consulting actuary, to this
Memorandum.
Furthermore, Mr. Ford suf fered undue pain as a result of
Dr. Blacksmith' negligence in failing to make a timely diagnosis of
cancer, he was required to undergo radical surgery, which he
otherwise would not have had to undergo, scarring, embarrassment
and humiliation, the loss of a functional voice, and seeks
compensation for all damages permissible under the law. Mrs. Ford
has suffered a loss of consortium and asserts a claim for same.
2. The economic loss relative to the wage earning capacity
claim ranges from approximately $400,000 to $700,000. Medical
bills total $36,307.08.
3. The Plaintiffs may call as witnesses at trial:
a. Russell Ford and Joanne Ford, who will testify
concerning the facts and damages;
b. Dr. Gary Blacksmith, who will testify concerning the
facts surrounding the medical care provided to Mr. Ford;
c. Dr. Roger Levin, who will testify as Mr. Ford's
treating physician and surgeon and will also testify as
a medical expert, consistent with his February 4, 1998
report;
d. Dr. Edward Zivic, who will testify as a medical
expert in the field of family practice consistent with
his January 23, 1998 report;
3
.
.
e. Dr. Dennis Kraus, who will testify as an expert in
the field of surgical oncology in conformity with his
December 12, 1996 report; and
f. Harry Leister, who will testify as a consulting
actuary relative to the economic impact of Mr. Ford's
damages consistent with his January 14, 1998 report;
g. Any witness, not objected to, identified in
discovery or by the Defendant.
4. Exhibits:
a. Medical records;
b. Medical bills and medical bill summary;
c. Income tax returns;
d. Enlargements of certain medical records;
e. Deposition transcript and video cassette of
Dr. Levin's testimony;
f. Reports and curriculum vitaes of Dr. Levin,
Dr. Zivic, and Dr. Kraus;
g. Report and curriculum vitae of Mr. Harry Leister;
and
h. All documents exchange during discovery.
5. The expert reports of Dr. Levin, Dr. zivic, Dr. Kraus,
and Mr. Leister are attached.
6. Plaintiffs request a stipulation as to the authenti~ity
of medical records and medical bills as further being reasonable
and necessary.
7. Trial will require four to five days.
4
-.
PennStatc ue:singcr
Hcal1h Systcm
/
February 4, 1998
Sl'1.'tlun or Olnluryn2uloRY .
lI.ad and Neck SU/'Kery
M.C. 11091
P,O. II". H~n
lIer-hey. PA 17l1.13,nK~n
717 ~31 H94~ Tel
717 HI 61(1) F..
Michael J. Navitsky
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1708
RE: FORD,RUSSELL
MSHMC#328361
Dear Mr. Navitsky:
I am writing this letter on behalf 01 my patient, Russell Ford, who you are representing
in a claim against Dr. Gary Blacksmith. As you know, I have been the surgieal
oncologis1 involved with Russell's larynx eancer care. This letter will serve as the
summary of my care for Russell to date. I have also included my most recent office
notes.
Mr. Ford initially presented to me on August 2, 1994 after referral by Dr. Russell
Macaluso, an otolaryngologist in Carlisle. Mr. Ford, at that time, had been told that he
had a cancer of his larynx by endoscopic evaluation although a endoscopic biopsy had
not yet been perfonned. He had sevcral medical problems complicating this history
including coronary artery disease, angina, and tobacco and alcohol abuse. He was
clinically staged, in the office and on the basis of his imaging studies, as a TINOMO,
stage 3,Iarynx cancer (supraglottic). The history, at my initial evaluation, was that Mr.
Ford initially noted symptoms back in December of 1993 nine months prior to my
evaluation. His symptoms included a mild sore throat and he was treated for an upper
respiratory infection. There was an apparent change in his symptoms in March of 1994
when he had a questionable history of hemoptysis. There was also some voice change
consistent with a "hot potato" voice. He had also begun to lose weight and,despite
being an obese man, had lost thirty pounds prior to my evaluation in August.
Ultimately, he was referred to an ENT, Dr. Macaluso, who nexibly endoscope the
patient in the office and identified this large, partially obstructing, supraglottic tumor. I
am unelear of the date that Dr. Macaluso saw the patient and I do not have any records
as to what care was provided to the patient in the interim between March 10, 1994 and
his evaluation in my office in August.
He was referred for a cardiology evaluation given his history of angina and previous
eoronary artery disease. He reportedly had a eatheteril.lltion done in 1986 which
showed one partially occluded vessel and was not felt to be an angioplasty candidate.
He did admit to having angina on exertion, During his cardiology work-up a stress test
was performed. He was unable to perform a treadmill exercise and so a Dipyridamole
Thallium study was perfomled, This, fortunately, showed appropriate hemodynamic
response, nonnal myocardial perfusion and no ischemic EKG changes, and he was
cleared for surgery. On August 5, 1994 he underwent a local tracheostomy and direct
laryngoscopy and biopsy. This came back with a diagnosis of squamous carcinoma as
expected, and he was staged as a T3NOMO, stage 3, laryn:t cancer based on pre-
epiglottic space invasion. After discussing the risks and henefits with surgical therapy
EOWARO J. ZIVIC. M. O.
fllloe fRANK.TOWN "DAD
'ITT..UftOH, PA. 15U5
TU.'''f040N& 731-2.'0
Michael J. Navitsky
ANGINO & ROVNER
4503 North Front street
Harrisburg, Pa. 17110-1708
RE: Russell Ford
January 23, 1998
Dear Mr. Navitsky:
At your request, I have reviewed the deposition of Mr.
Russell Ford, Dr. Gary L. Blacksmith Jr., the medical records
of Dr. Blacksmith and the Hershey Medical Center. Based on
this review I have made the following observations and reached
the following conclusions.
Mr. Ford was a 48 year old white male with a long history
of significant alcohol and tobacco abuse, placing him at
significant risk for the development of oropharyngeal, upper
respiratory, or pulmonary carcinomas. In reviewing Dr.
Blacksmith's records, the significant time frame, I feel,
relative to the care of Mr. Ford revolves around the eight month
period from December 1993 through July 1994. I found the care
he rendered to Mr. Ford from 1983 to December of 1993 proper,
correct, and in keeping with the accepted standard of care for
the community.
As noted in Mr. Ford's records, he developed symptoms of
an upper respiratory-bronchial problem for which he sought
medical treatment in December of 1993. He antedates this history
of a cough for approximately two months. He was seen in February
and twice in March, and for all intents and purposes, despite
varying antibiotic treatments, did not significantly improve,
nor did his symptomotology change. Particularly worrisome in
the review of the records is the question of hemoptysis. The
second visit in March, I feel, was a particularly critical visit
relative to the care of Mr. Ford. We have a problem relative
to upper respiratory symptomotology which had previously resolved
without incident now not responding to accepted adequate therapy.
The uncertainty of a particularly dangerous symptom, namely
hemoptysis, in a heavy smoker places the physician in a position
to investigate for the possibility of life threatening problems,
specifically, does the patient have an early cancer growing
somewhere causing this.
At this stage I feel Mr. Ford should have had studies done
to investigate the cause of his refractory problem. A chest
x-ray should have been done and if this failed to demonstrate
the reason for the chronicity of this problem, specialty
consultation should have been obtained. Also, on the March
EDWARD J. ZIVIC. M. D,
22, visit a change is noted in the quality of Mr. Ford's voice.
To assume that your clinical judgment is sufficient as to
determining the cause of this without properly investigating
the cause of this change is courting disaster, and further delays
proper therapy for whatever condition is causing Mr. Ford's
problem.
He was then seen with the same problem in April, May, June
and July. I feel that by not properly investigating the etiology
of the symptoms following the second visit in March, Dr.
Blacksmith's care fell below the accepted standards of the
community. To not investigate following the April, May and
June visit, I feel, is unconscionable behavior on the part of
a physician and I feel sets a new standard for disregarding
significant important signs and symptoms which could be life
threatening. This delay in therapy may ultimately prove to
be a death sentence for Mr. Ford. Certainly I recognize as
all physicians do that there is no guarantee regarding the
treatment of cancer, but it is accepted without question that
the earlier any tumor is found and treated, the greater the
chance of curing the patient without performing mutilating
disfiguring surgery, as was necessary in order to attempt to
affect a cure for Mr. Ford. Had he been properly investigated
following the visit in March, I would not be reviewing this
record for unaccepted quality of care.
In summary, I feel Dr. Blacksmith was negligent and that
his care fell below accepted standards of care for a family
practitioner in that he failed to perform proper studies and
seek proper consultation for complaints that reflected that
a serious potentially life threatening situation existed, and
the failure to investigate these complaints in a timely fashion
constitute in my professional opinion medical negligence.
Sincerely,
EJZ/jmc
4/1/' -~
.~7~'
Edward J. Zivic M.D.
Dennis H. Kraus. M.D.
1275 York Avenue Now Yolk. Now Yolk 10021
(212) 639 5621 . Fax (212) 717.3302
December 12, 1996
Mr. Michael J. NavilSky
4503 North Front Street
Harrisburg, PA 17110-1708
RE: Russell Ford
Dear Mr. NavilSky:
As we have discussed, 1 have reviewed the medical records pertaining to the care of Mr.
Russell Ford. You had provided me with records from the patient's multiple out-patient
visilS with Dr. Blacksmith, initial consul1ation by Dr. Russell Macaluso, and his entire
records from Hershy Medical Center. As I have discussed. 1he focus of my review is
whether a delay in diagnosis existed in the management of the patien1' s care while being
evaluated by Dr. Gary Blacksmith. The patient was initially evaluated for complaint of
cough on 1217/93. The pa1ient was 1realed for acu1e bronchitis with Ceftin 250 mg 1 PO
BID #10 with I refill. He was advised to notify the office if there was no improvement in
his condition. On 2/22/94, the patient continued to complain of cough and discomfort
over the posterior pharynx. There was nolation of his continued use of 10bacco
produclS. The patient was treated wi1h Amoxicillin250 mg I PO TID#30 and instruc1ed
to consume large quan1i1ies of fluids. He was advised 10 return in several months. The
patien1 relUrned prior to his scheduled appointment on 3/8/94 complaining of symp10ms
which were interpreted as acute bronchitis. There was a ques1ion of blood tinged
spulUm. On 3/22/94, the patient continued to complain of slight nasal quality to his
speech and he was trea1ed with a combination of Beconase AQ I spray in each nostril
BID and PCE 500 mg I PO BID #24. On 4/12/94, the patient continued to complain of
discomfort over the posterior pharynx and a productive yellow spulUm. He was 1reated
with Augmenten 250 mg 1 PO Q8 hours. He was advised to relUrn in 1-2 mon1hs. The
patien1 was then seen on 5/10/94. His major complaint was of discomfort over the
paranasal sinuses. Dr. Blacksmith continued to no1e a sligh1 nasal quali1y to his speech.
He was again encouraged 10 use Vancenase AQ and a decongestant. The patient was
evaluated on 6/9/94 complaining of persis1ent sputum. He was treated with Augmenten
500 mg Q8 #21 with I refill, Bromfed capsules and advised 10 continue to use the
Vancenase. He was instructed 10 contact the office should 1here be reoccurrence of his
symptoms. The patient was seen for the last time by Dr. Blacksmith on 7121/94 for
upper respiratory 1ract infection. There continued to be a nasal quali1y to his speech. At
this juncture, the patien1 was advised to have an ENT consul1a1ion.
The major issues which have arisen in reviewing this case is whether a delay in diagnosis
alerted the pa1ient's outcome. The 1rea1ing physician was aware of the patient's 60 pack
M. Navitsky
12/12/96
Page 2
year his10ry of tobacco use and heavy alcohol use consisting of a 6 pack per day. In
such a patient, the con1inued persis1ence of pulmonary and upper respiratory lrac1
infec1ions would certainly raise the question of whether additional consultation would be
in order. Specifically, there is no record of a chest x-ray being obtained, consideration
of sputum cy1010gy, or either pulmonary or Ololaryngology consultation. The possible
presence of blood on 3/8/94 should have certainly raised these issues. Coupled with the
change in voice quaIi1y on 3/22/94, this is the time that I would focus on additional
consultation being appropriate.
Thus, there is approximately a 4 month delay from the: time of the patienl's most pertinent
symptoms on 3/8/94 and 3/22/94 to the lime he was advised 10 undergo ololaryngoIogy
consultation on 7/21/94. This 4 month period provided the supragIoltic cancer an
opportunity to progress. For the purpose of this discussion, I separate supragloltic
cancer into early (TI' T2) vs. late (T3, T4) lesions. Early lesions are often amenable 10 a
single form of treatment consisting of either radia1ion therapy or surgery. Radia1ion can
be performed in a way which willspare 1he larynx. Similarly, partial excision (supraglottic
laryngectomy) may be performed in a way thai preserves the vocal cords. More
advanced lesions often require multimodal therapy. Op1ions consist of total laryngectomy
w/wo radiation therapy, hyperfractionated radiation therapy, or chemotherapy and
radiation therapy.
Within a reasonable degree of medical certainty, the medical management in this case
increased the pa1ient's risk of harm from 1his disease. Given the 8 month his10ry of
persistence of symptoms, I feel there was a devia1ion from standard medical prac1ice in
the management of this pa1ienl. He required additional evaluation based on his
symptoms.
I hope this has adequa1ely reviewed the patien1's case ma1erial. Please do not hesitate
10 contac1 me if additional information is required. Best wishes.
:JrLs
Head and Neck Surgery
Direc10r, Speech and Hearing Center
DHKlam
Conrad M. Siegel, Inc.
Actuaries/ Benefits
conrad M. Siegel. F.SA.
1llUT')' M. Leister, Jr.. fS.A.
Drian S. Sann. F.S.A.
Clyde E. Gingrich, P.SA.
Earl L. Mununcr1. E.A.
Roben J, llolan. A SA
David F. Slirling. A,S_A.
Robcl1 J, Mnwk. fS.A.
David II. Killick. f,S.A,
Jefrrey 5, Mycn. f,SA
Thonw L. Zimmcnnan. fS.A,
GIeM A, lIarer. f.S.A.
Kevin A. &b. F.S.A.
Frank S. Rhodes. f,S,A. A.C.AS.
Charles 8. Friedlander, F.g,A.
lIolly A, Ross. f,S.A,
John W. Jeffrey. A.S,A.
Demit M. Polin. A.S.A.
Richard C. Smith. A.S.A.
lbonw W. Reese. A.S.A.
Janel M. Lc)'meiste:r. CESS
500 Naliunwidr Drive
I~ 0. Uux [,!IOO
Harrishurg, 1''\ 1711 ().591)()
(717) li52.5633
Fax (717) 51().9106
January 14, 1998
Duane S. Barrick, Esq,
Angino & Rovner
4503 North Front Street
Harrisburg, PA 17110-1708
Re: Russell Ford
Dear Mr. Barrick:
You indicated that Russell Ford was born on August 1, 1946, and that he incurred a
permanent and total disability as of August 17, 1994.
Currently, Russell Ford is 51.5 years of age. The life expectancy for a white male age 51.5
is an additional 25.4 years. This implies an expected age at death of 76.9 (51.5 + 25.4).
The life expectancy is based upon a publication ofthe U.S. Department of Health and
Human Services entitled "U.S. Decennial Life Tables for 1989.91."
Mr. Ford was self-employed. He operated a cleaning business entitled "Ford's Janitorial
Services."
The following shows information concerning his earnings from January 1, 1991, until the
date of his disability:
Adjusted
Net Profit
1991 $24,069
1992 36,472
1993 9,077
1994 7,922
(Until 8/17)
Wal!es
Earninl!s
$24,069
36,472
$24,000
33,077
16,000
$23,922
The adjusted net profit is the net profit shown on Mr. Ford's tax return adjusted for the
depreciation.
ll' 'I ."t>
aAPk UIIIl:l!>>J /'
RUSSELL FORD and JOANN FORD,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
NO. 95-6691-
CIVIL ACTION - LAW
GARY L. BLACKSMITH, JR., M.D.
and BLACKSMITH ASSOCIATES,
Defendants
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO DEFENDANTS'
MOTION TO STRIKE LISTING CASE FOR TRIAL
1. Plaintiffs admit that they filed the complaint in this
medical malpractice suit on or about November 21, 1995. The
Defendant failed to diagnose Mr. Ford's throat cancer. Plaintiffs
attach a photocopy of the expert reports from Dr. Edward zivic (a
family physician) and Dr. Dennis Kraus (a throat cancer specialist)
as plaintiffs' Exhibit A. Dr. Zivic is of the opinion that the
Defendant was negligent in failing to make this diagnosis. Dr.
Kraus also is of the opinion that the Defendant was negligent, and
further opines that the delay in diagnosis played a substantial
factor in harming Mr. Ford. Plaintiffs further attach a photocopy
of the report of Plaintiff's treating surgeon, Dr. Roger Levin, as
Plaintiffs' Exhibit B.
Dr. Levin is of the opinion that the
Defendant was negligent and that his neglfgence played a
substantial factor in harming Mr. Ford.
Basically, had the
diagnosis and appropriate referral been made in a timely fashion,
IJ0820/JKW
Mr. Ford's cancer would not have spread, he would not have needed
surgery or an extensive surgery, and he would still have a
functional voice, which he currently does not, and will never
regain.
2. plaintiffs admit that the Defendants answered the
complaint in January of 1996.
3. plaintiffs admit that the Defendants propounded
Interrogatories and Request for Documents, to which they provided
responses promptly.
4. plaintiffs admit that Dr. Blacksmith's deposition was
delayed substantially because of his illness.
5. plaintiffs admit that they have provided Defendants with
everything that was asked for in discovery and that the Defendants
were provided with the report of Dr. Kraus on May 1, 1997, with the
economic report of Mr. Leister on January 19, 1998, with the report
of Dr. zivic on January 29, 199B, and with the report of Dr. Levin
on March 19, 1998. plaintiffs further admit that Defendants'
Interrogatories were answered on November 18, 1996 and that the
Defendants were provided with the Plaintiffs' tax returns and
social security decision on February 24, 1997. plaintiffs further
admit that the defense was provided with the records of Plaintiff's
treating physicians and Hershey Medical center on september 24,
1996. plaintiffs further admit that the defense was provided with
an additional copy of Dr. Levin's records from Hershey Medical
Center on April 1, 1997. Plaintiffs further admit that on May 1,
1997, the Defendants were put on notice of Plaintiffs' intention to
2
list the case for trial. plaintiffs further admit that the defense
was even provided with the curriculum vitae of Dr. Kraus on May 30,
1997, despite the fact that this is not required under our rules of
discovery. plaintiffs further admit that on september 4, 1997, the
defense was once again provided with a copy of their tax returns
and W2 forms that were received from the Internal Revenue service.
plaintiffs further admit that on september 12, 1997, the defense
was provided with Mr. Ford's complete social Security file.
Plaintiffs further admit that on March 19, 1998, the defense was
provided with not only a copy of Dr. Levin's letter, but yet
another copy of Dr. Zivic's report and the economic report of
Mr. Leister, and were advised that plaintiffs intended to list the
case for trial. A photocoPY of undersigned counsel's April 2, 1998
correspondence to defense counsel is attached as Plaintiffs'
Exhibit C.
6. plaintiffs admit that the deposition of Dr. Roger Levin
was scheduled for April 8, 1998. The remainder of the allegations
are denied. Plaintiffs, not defense counsel, arranged for the
deposition of Dr. Levin. Dr. Levin was Plaintiff's treating
physician following the Defendant's negligence. Dr. Levin operated
on Mr. Ford and has continued to monitor his condition. His
deposition was scheduled for use at trial. At defense counsel's
request, the date of the deposition was set for April 8, 1998.
3
This deposition was never noticed as a discovery deposition.
Defense counsel never requested a discovery deposition of Dr.
Levin. A defense medical examination was never requested by
defense counsel.
7. Denied. When defense counsel was contacted concerning
the scheduling of Dr. Levin's testimony so that his testimony could
be taken by the plaintiffs for use at trial, defense counsel
requested that the deposition be scheduled for April B, 199B or
Apr.il 15, 199B. Defense counsel never requested a discovery
deposition. Defense counsel never requested a defense medical
examination.
B. Denied. Defense counsel has been provided with all
documents requested, and defense counsel knows well who the
witnesses are to this case. We all can misplace things, and it is
assumed that is what occurred in this case at defense counsel's
office. Referring to Pla:"tiffs' Exhibit C, the April 2, 199B
correspondence, records have been provided time and time again.
9. Denied. This is case is ready for trial. Dr. Levin's
deposition may not be taken by the Defendants under our rules of
discovery. Defense counsel has been provided ~ith Dr. Levin's
report. No medical examination has ever been requested and a
decision to have one conducted at this point is too late and should
be denied.
10. Denied. Defendants have learned nothing new in well over
a year as to Plaintiffs' allegations and abilities to prove this
case. They knew from the outset that Dr. Blacksmith failed to
4
EDWARD J, ZIVIC. M. 0,
..01 '.....NK.TOWH ROAD
~ITT'.U..aH. ,.... 11131
'nLIPHOHI 7JI'Z.70
Michael J. Navitsky
ANGINO & ROVNER
4503 North Front street
Harrisburg, Pa. 17110-1708
RE: Russell Ford
January 23, 1998
Dear Mr. Navitsky:
At your request, I have reviewed the deposition of Mr.
Russell Ford, Dr. Gary L. Blacksmith Jr., the medical records
of Dr. Blacksmith and the Hershey Medical Center. Based on
this review I have made the following observations and reached
the following conclusions.
Mr. Ford was a 48 year old white male with a long history
of significant alcohol and tobacco abuse, placing him at
significant risk for the development of oropharyngeal, upper
respiratory, or pulmonary carcinomas. In reviewing Dr.
Blacksmith's records, the significant time frame, I feel,
relative to the care of Mr. Ford revolves around the eight month
period from December 1993 through July 1994. I found the care
he rendered to Mr. Ford from 1983 to December of 1993 proper,
correct, and in keeping with the accepted standard of care for
the community.
As noted in Mr. Ford's records, he developed symptoms of
an upper respiratory-bronchial problem for which he sought
medical treatment in December of 1993. He antedates this history
of a cough for approximately two months. He was seen in February
and twice in March, and for all intents and purposes, despite
varying antibiotic treatments, did not significantly improve,
nor did his symptomotology change. particularly worrisome in
the review of the records is the question of hemoptysis. The
second visit in March, I feel, was a particularly-critical visit
relative to the care of Mr. Ford. We have a problem relative
to upper respiratory symptomotology which had previously resolved
without incident now not responding to accepted adequate therapy.
The uncertainty of a particularly dangerous symptom, namely
hemoptysis, in a heavy smoker places the physician in a position
to investigate for the possibility of life threatening problems,
specifically, does the patient have an early cancer growing
somewhere causing this.
At this stage I feel Mr. Ford should have had studies done
to investigate the cause of his refractory problem. A chest
x-ray should have been done and if this failed to demonstrate
the reason for the chronicity of this problem, specialty
consultation should have been obtained. Also, on the March
PLAlNTIFF'S
EXHIBIT
A-
EDWARD J. ZIVIC. .... D.
22, visit a change is noted in the quality of Mr. Ford's voice.
To assume that your clinical judgment is sufficient as to
determining the cause of this without properlY investigating
the cause of this change is courting disaster, and further delays
proper therapy for whatever condition is causing Mr. Ford's
problem.
He was then seen with the same problem in April, May, June
and July. I feel that by not properlY investigating the etiology
of the symptoms following the second visit in March, Dr.
Blacksmith's care fell below the accepted standards of the
community. To not investigate following the April, May and
June visit, I feel, is unconscionable behavior on the part of
a physician and I feel sets a new standard for disregarding
significant important signs and symptoms which could be life
threatening. This delay in therapy may ultimately prove to
be a death sentence for Mr. Ford. certainly I recognize as
all physicians do that there is no guarantee regarding the
treatment of cancer, but it is accepted without question that
the earlier any tumor is found and treated, the greater the
chance of curing the patient without performing mutilating
disfiguring surgery, as was necessary in order to attempt to
affect a cure for Mr. Ford. Had he been properly investigated
following the visit in March, I would not be reviewing this
record for unaccepted quality of care.
In summary, I feel Dr. Blacksmith was negligent and that
his care fell below accepted standards of care for a family
practitioner in that he failed to perform proper studies and
seek proper consultation for complaints that reflected that
a serious potentially life threatening situation existed, and
the failure to investigate these complaints in a timely fashion
constitute in my professional opinion medical negligence.
EJz/jmc
Sincerely,
~~~\?
Edward J. Zivic M.D.
"
Dennla H. KraUI, M.D.
1275 'lbrk Awnue New 'lbrk. New 'lbrk 10021
(212) 639 5621 . Fax (212) 717.3302
December 12, 1996
Mr. Michael J. NavilsJcy
4503 North Front Stree1
Harrisburg, PA 17110-1708
RE: Russell Ford
Dear Mr. NavitsJcy:
As we have discussed. I have reviewed the medical records penaining to the care of Mr.
Russell Ford, You had provided me with records from the patient's multiple out-patient
visils with Dr. Blacksmith, initial consultation by Dr. Russell Macaluso, and his entire
records from Hershy Medical Cenlcr. As I have discussed, the focus of my review is
whether a delay in diagnosis exis1ed in the management of the pa1ient's care while being
evalualcd by Dr. Gary Blacksmith. The patien1 was initiallyevalua1ed for complaint of
cough on 1217/93. The pa1ient was trea1ed for acute bronchitis with Ceftin 250 mg 1 PO
BID #10 with 1 refill. He was advised to notify the office if there was no improvement in
his condition. On 2/22/94. the patient con1inued to complain of cough and discomfort
over the pos1erior pharynx. There was nota1ion of his continued use of tobacco
producls. The patient was treated with Amoxicillin250 mg 1 PO TID#30 and instruClcd
10 consume large quantities of fluids. He was advised to return in several months. The
patient returned prior 10 his scheduled appointmen1 on 3/8/94 complaining of symptoms
which were interpreted as acute bronchitis. There was a question of blood tinged
sputum. On 3/22/94, the patient continued to complain of slight nasal quality to his
speech and he was trea1ed with a combination of Beconase AQ 1 spray in each nostril
BID and PCE 500 mg 1 PO BID #24. On 4/12/94, the patient continued to complain of
discomfort over the pos1erior pharynx and a produc1ive yellow sputum. He was trea1ed
with Augmen1en 250 mg 1 PO Q8 hours. He was advised to return in 1-2 months. The
patien1 was then seen on 5/10/94. His major complaint was of discomfort over the
paranasal sinuses. Dr. Blacksmith continued 10 no1e a slight nasal quality to his speech.
He was again encouraged to use Vancenase AQ and a decongestant. The patient was
evaluated on 6/9/94 complaining of persisten1 sputum. He was treated with Augmenlcn
500 mg Q8 #21 with 1 refill, Bromfed capsules and advised 10 con1inue to use the
Vancenase. He was instructed to contact the office should there be reoccurrence of his
symptoms, The pa1ient was seen for the last time by Dr. Blacksmith on 7/21/94 for
upper respira10ry tract infec1ion. There continued to be a nasal quality to his speech. At
this juncture, the pa1ient was advised 10 have an ENT consultation.
The major issues which have arisen in reviewing this case is whether a delay in diagnosis
alerted the patient's OUlCome. The treating physician was aware of the patien1's 60 pack
M. Navitslty
12/12/96
Page 2
year history of tobacco use and heavy alcohol use conslStmg of a 6 pack per day. In
such a patient, the continued persislcnce of pulmonary and upper respira10ry tract
infections would certainly raise the question of whelher additional consultation would be
in order, Specifically, there is no record of a chest x-ray being obtained, consideration
of sputum cytology, or either pulmonary or otolaryngology consultation. The possible
presence of blood on 3/8/94 should have certainly raised these issues. Coupled wilh lhe
change in voice quality on 3/22/94, this is the time that 1 would focus on addi1ional
consultation being approprialc,
Thus. there is approximalcly a 4 monlh delay from the time of the patient's most pertinen1
symptoms on 3/8/94 and 3/22/94 to the time he was advised to undergo ololaryngology
consultation on 7/21/94, This 4 month period provided the supraglottic cancer an
opportunity to progress. For the purpose of this discussion, I separate supraglottic
cancer into early (T.. T2) vs. laic (TJ' T4) lesions. Early lesions are often amenable to a
single form of tteabnen1 consisting of either radiation therapy or surgery. Radiation can
be performed in a way which willspare lhe larynx. Similarly, partial excision (supraglottic
laryngectomy) may be performed in a way that preserves the vocal cords, More
advanced lesions often require multimodal therapy. Options consist oftotallaryngectomy
w/wo radiation lherapy, hyperfractionalcd radiation lherapy. or chemotherapy and
radiation therapy,
Within a reasonable degree of medical certainty, lhe medical management in lhis case
increased the patient'S risk of harm from this disease. Given the 8 monlh his10ry of
persislcnce of symp10ms, I feellhere was a deviation from standard medical practice in
the management of this patient. He required additional evaluation based on his
symptoms.
I hope this has adequa1eIy reviewed lhe pa1ient' s case ma1eria!. Please do not hesitalc
to contact me ifadditional information is required. Best wishes. ..
Sincerely yours,
,
Jt
Head and Neck Surgery
Director, Speech and Hearing Cenlcr
S
DHKlam
PLAINTIFF'S
EXHIBIT
(3
..
PennStah.. ueisinger
Heal1h Sys1em
/
February 4, 1998
SKtion ot 0Iolnynao1o&,\ .
Urad and lIi.rk SUlI'n,
M.C.1ll1JI
P,O, Bo, H~1l
IImh.y. PA 171l3J.IlH~1l
71153189-15 T.I
7175316160 Fa>
Michael J. Navi1sky
Angino & Rovner, P.C.
4503 North Front Stree1
Harrisburg, PA 17110-1708
RE: FORD,RUSSELL
MSHMCII32836I
Dear Mr. Navitsky:
I am writing this letter on behalf of my patient, Russell Ford, who you arc representing
in a claim against Dr. Gary Blacksmith. As you know, I have been the surgical
oncologist involved with Russell's larynx cancer care. This letter will serve as the
sumnlary of my care for Russell to date. 1 have also included my most recent office
notes.
Mr. Ford initially presented to me on August 2, 1994 after referral by Dr. Russell
Macaluso, an otolaryngologist in Carlisle. Mr. Ford, at that time, had been told that he
had a cancer of his larynx by endoscopic evaluation although a endoscopic biopsy had
not yet been perfonned. He had severnl medical problems complicating this history
including coronary artery disease, angina, and tobacco and alcohol abuse. He was
clinically staged, in the office and on the basis of his imaging studies, as a TINOMO,
stage 3, larynx cancer (suprnglonic). The history, at my initial evaluation, was that Mr.
Ford initially noted symptoms back in December of 1993 nine months prior to my
evaluation. His symptoms included a mild sore throat and he was trealed for an upper
respiratory infection. There was an apparent change in his symptoms in March of 1994
when he had a questionable history of hemoptysis. There was also some voice change
consistent with a "hot potato" voice. He had also begun to lose weight and,despite
being an obese man, had lost thirty pounds prior to my evaluation in August.
Ultimately, he was referred to an ENT, Dr. Macaluso, who flexibly endoscope the
patient in the office and identified this large, partially obstructing, suprnglonic tumor. I
am unclear of the date that Dr. Macaluso saw the patient and I do not have any records
as to wha1 care was provided to the patient in the interim between March 10, 1994 and
his evaluation in my office in August.
He was referred for a cardiology evaluation given his history of angina and previous
coronary artery disease. He reportedly had a catheterization done in 1986 which
showed one partially occluded vessel and was not felt to be an angioplasty candidate,
He did admit to having angina on exertion. During his cardiology work-up a stress test
was perfonned. He was unable to perfonn a treadmill exercise and so a Dipyridamole
Thallium study was perfonned. This, fortunately, showed appropriate hemodynamic
response, nonnal myocardial perfusion and no ischemic EKG changes, and he was
cleared for surgery. On August 5, 1994 he underwent a local tracheostomy and direct
laryngoscopy and biopsy. This came back with a diagnosis of squamous carcinoma as
expected, and he was staged as a TINOMO, stage 3,Iarynx cancer based on pre-
epiglottic space invasion. After discussing the risks and benefits with surgical thernpy
JDaPlIl. tBJWl
'laDL HYMAIl
DoWID1. unz
MICIl.\II, L _
MMIIAo._
IICHAIII A.1A1ILlllS
Angino
BRovner
LlSTID IN
HIIlJUI 1:.llLIllIl
lGCIIAIL 1.1UIiIlUY
_N.DOIL\
DUAIIILIAUIt:Il
_ DoCIHI1
IIoWIIl L W-.
11IB BfS\' IAWYFJS
-Dl-
AMERJ:A
ascHARD 1:. ANOINO
NIIIL r.1O'INIIIl
April 2, 1998
Gary '1'. Lathrop, Esquire
Thomas, Thomas , Hater, LLP
305 North Front street
P.O. Box 999
Harrisburg, PA 17108-0999
In Re: Ford v. Blacksmith. et al
Dear Gary:
ThanJc you for your letter of March 30, 1998. It is most
certainly an honor to have Pete curry join us in this case.
On February 16, 1998, you spoke with my secretary, Jessie,
concerning the deposition of Dr. Levin. You requested that the
deposition take place either on April 8 or 15, 1998. She worked
very hard with Dr. Levin's office to rearrange schedules so that
the deposition could take place as requested on April 8, 1998. It
was prollptly scheduled and noticed. There was no discussion about
you tirst scheduling d "discovery deposition."
I aID aware of no case in Pennsylvania which would authorize
you to take a discovery deposition of an expert. While I thinJc
this would be beneficial and works well in other states, this, to
my knowledge, is not the law in Pennsylvania.
I aID also not aware of any case in Pennsylvania which holds
that a treating physician's deposition cannot take place without
the Detendant first conducting a discovery deposition. In any
event, it this was your intent, and there was some legal basis for
authorizing such a deposition, it could and should have been
addressed in February.
I sent you the Hershey Medical Center chart as well as
Dr. Macaluso's chart on September 24, 1996. I do not intend to
recopy either of these charts unless you need them again. I have
never objected to you issuing a subpoena to obtain yet another copy
of either chart. --..._,---,-- ~
82410/JICW
PLAINTIFF'S
EXHIBIT
C
Page 'l'Wo
Gary r. Lathrop, Esquire
April 2, 1998
I all enclosing the last copy that I will send you of thE!
Ford's W2 forms, which were sent to me by the Internal Revenue
service back in January of 1991. As I previously reported to you,
we needed to obtain these from the Internal Revenue Service. This
inforDation was given to you back on September 4, 1991.
Fact witnesses include my clients and the Defendant. Both
have been deposed. I cannot think of any other fact witnesses at
this time. Can you?
Please give my best regards to Pete and I suggest that he
enter an appearance in this case. Please let me know if I should
direct future correspondence to him. This case has been listed for
the cumberland county term, which begins on May 18, 1998.
A thorough review of this file reveals that on september 24,
1996, I sent you the records of Dr. Macaluso and Hershey Medical
Center. On November 18, 1996, I answered your interrogatories. On
February 24, 1991, I sent you Hr. and Mrs. Ford's tax returns and
the social security decision. On April 1, 1991, I provided you
with Dr. Levin's records from Hershey Medical Center. On May 1,
1991, I enclosed Dr. Kraus' report and advised you that I intended
to list the case for trial. On May 30, 1991, I provided you with
Dr. Kraus' curriculum vitae. On september 4, 1991, I once again
provided you with my clients' tax returns and W2 forms that I
received from the Internal Revenue service. On september 12, 1991,
I provided you with my client's social security file. On
January 19, 1998, I provided you with our economic report from
Mr. Leister. On January 29, 1998, I provided you with our report
from Dr. Zivic. On March 19, 1998, I provided you with a copy of
Dr. levin'S letter as well as another copy of Dr. Zivic's report
and Mr. Leister'S report and advised you that I was listing the
case for trial.
Dr. Levin is Mr. Ford's treating physician and he has also
agreed to serve as a medical expert against Dr. Macaluso. I will
try to reschedule his video-deposition because Pete is just now
getting involved in the case. The deposition must, however, take
place prior to the Cumberland county May trial term.
Alternatively, I will determine if Dr. Levin could testify live at
trial.
eif API{ U II 199B
VS.
IN THE COURT OF COMMON PLEAS
CUMBERLANU COUNTY, PENNSYLVANIA
NO. 95-6691
RUSSELL FORD and JOANN FORD,
plaintiffs
GARY L. BLACKSMITH, JR., M.D.
and BLACKSMITH ASSOCIATES,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO DEFENDANTS'
MOTION TO STRIKE LISTING CASE FOR TRIAL
1. Plaintiffs admit that they filed the Complaint in this
medical malpractice suit on or about November 21, 1995. The
Defendant failed to diagnose Mr. Ford's throat cancer. plaintiffs
attach a photocoPY of the expert reports from Dr. Edward Zivic (a
family physician) and Dr. Dennis Kraus (a throat cancer specialist)
as Plaintiffs' Exhibit A. Dr. zivic is of the opinion that the
Defendant was negligent in failing to make this diagnosis. Dr,
Kraus also is of the opinion that the Defendant was negligent, and
further opines that the delay in diagnosis played a substantial
factor in harming Mr. Ford. plaintiffs further attach a photocoPY
of the report of plaintiff's treating surgeon, Dr. Roger Levin, as
Plaintiffs' Exhibit B.
Dr. Levin is of the opinion that the
Defendant was negligent and that his negligence played a
substantial factor in harming Mr. Ford.
Basically, had the
diagnosis and appropriate referral been made in a timely fashion,
130B20!JKW
Mr. Ford's cancer would not have spread, he would not have needed
surgery or an extensive surgery, and he would still have a
functional voice, which he currently does not, and will never
regain.
2. Plaintiffs admit that the Defendants answered the
Complaint in January of 1996.
3. Plaintiffs admit that the Defendants propounded
Interrogatories and Request for Documents, to which they provided
responses promptly.
4. Plaintiffs admit that Dr. Blacksmith's deposition was
delayed substantially because of his illness.
5. Plaintiffs admit that they have provided Defendants with
everything that was asked for in discovery and that the Defendants
were provided with the report of Dr. Kraus on May 1, 1997, with the
economic report of Mr. Leister on January 19, 1998, with the report
of Dr. Zivic on January 29, 1998, and with the report of Dr. Levin
on March 19, 1998. Plaintiffs further admit that Defendants'
Interrogatories were answered on November 18, 1996 and that the
Defendants were provided with the Plaintiffs' tax returns and
social security decision on February 24, 1997. Plaintiffs further
admit that the defense was provided with the records of Plaintiff's
treating physicians and Hershey Medical Center on September 24,
1996. Plaintiffs further admit that the defense was provided with
an additional copy of Dr. Levin's records from Hershey Medical
Center on April 1, 1997. Plaintiffs further admit that on May 1,
1997, the Defendants were put on notice of Plaintiffs' intention to
2
list the case for trial. Plaintiffs further admit that the defense
was even provided with the curriculum vitae of Dr. Kraus on May 30,
1997, despite the fact that this is not required under our rules of
discovery. Plaintiffs further admit that 011 September 4, 1997, the
defense was once again provided with a copy of their tax returns
and W2 forms that were received from the Internal Revenue Service.
Plaintiffs further admit that on September 12, 1997, the defense
was provided with Mr. Ford's complete Social Security file.
Plaintiffs further admit that on March 19, 1998, the defense was
provided with not only a copy of Dr. Levin's letter, but yet
another copy of Dr. zivic's report and the economic report of
Mr. Leister, and were advised that Plaintiffs intended to list the
case for trial. A photocopy of undersigned counsel's April 2, 1998
correspondence to defense counsel is attached as Plaintiffs'
Exhibit c.
6. Plaintiffs admit that the deposition of Dr. Roger Levin
was scheduled for April 8, 1998. The remainder of the allegations
are denied. Plaintiffs, not defense counsel, arranged for the
deposition of Dr. Levin. Dr. Levin was Plaintiff's treating
physician following the Defendant's negligence. Dr. Levin operated
on Mr. Ford and has continued to monitor his condition. His
deposition was scheduled for use at trial. At defense counsel's
request, the date of the deposition was set for April 8, 1998.
3
This deposition was never noticed as a discovery deposition.
Defense counsel never requested a discovery deposition of Dr.
Levin. A defense medical examination was never requested by
defense counsel.
7. Denied. When defense counsel was contacted concerning
the scheduling of Dr. Levin's testimony so that his testimony could
be taken by the plaintiffs for use at trial, defense counsel
requested that the deposition be scheduled for April 8, 1998 or
April 15, 1998. Defense counsel never requested a discovery
deposition. Defense counsel never requested a defense medical
examination.
8. Denied. Defense counsel has been provided with all
documents requested, and defense counsel knows well who the
witnesses are to this case. We all can misplace things, and it is
assumed that is what occurred in this case at defense counsel's
office. Referring to Plaintiffs' Exhibit C, the April 2, 1998
correspondence, records have been provided time and time again.
9. Uenied. This is case is ready for trial. Dr. Levin's
deposition may not be taken by the Defendants under our rules of
discovery. Defense counsel has been provided with Dr. Levin's
report. No medical examination has ever been requested and a
decision to have one conducted at this point is too late and should
be denied.
10. Denied. Defendants have learned nothing new in well over
a year as to Plaintiffs' allegations and abilities to prove this
case. They knew from the outset that Dr. Blacksmith failed to
4
EOWARO J. ZIVIC. M. O.
"01 ,."ANKITOWN "OAO
~ITT..U..aH. ,.A. 1112"
T1."."HOHI 7"':Z.70
Michael J. Navitsky
ANGINO & ROVNER
4503 North Front street
Harrisburg, Pa. 17110-1708
RE: Russell Ford
January 23, 1998
Dear Mr. Navitsky:
At your request, I have reviewed the deposition of Mr.
Russell Ford, Dr. Gary L. Blacksmith Jr., the medical records
of Dr. Blacksmith and the Hershey Medical Center. Based on
this review I have made the following observations and reached
the following conclusions.
Mr. Ford was a 48 year old white male with a long history
of significant alcohol and tobacco abuse, placing him at
significant risk for the development of oropharyngeal, upper
respiratory, or pulmonary carcinomas. In reviewing Dr.
Blacksmith's records, the significant time frame, I feel,
relative to the care of Mr. Ford revolves around the eight month
period from December 1993 through July 1994. I found the care
he rendered to Mr. Ford from 1983 to December of 1993 proper,
correct, and in keeping with the accepted standard of care for
the community.
As noted in Mr. Ford's records, he developed symptoms of
an upper respiratory-bronchial problem for which he sought
medical treatment in December of 1993. He antedates this history
of a cough for approximately two months. He was seen in February
and twice in March, and for all intents and purposes, despite
varying antibiotic treatments, did not significantly improve,
nor did his symptomotology change. Particularly worrisome in
the review of the records is the question of hemoptysis. The
second visit in March, I feel, was a particularly -critical visit
relative to the care of Mr. Ford. We have a problem relative
to upper respiratory symptomotology which had previously resolved
without incident now not responding to accepted adequate therapy.
The uncertainty of a particularly dangerous symptom, namely
hemoptysis, in a heavy smoker places the physician in a position
to investigate for the possibility of life threatening problems,
specifically, does the patient have an early cancer growing
somewhere causing this.
At this stage I feel Mr. Ford should have had studies done
to investigate the cause of his refractory problem. A chest
x-ray should have been done and if this failed to demonstrate
the reason for the chronicity of this problem, specialty
consultation should have been obtained. Also, on the March
PLAINTIFF'S
EXHIBIT
Pr
EDWARO J. ZIVIC. M. D.
22, visit a change is noted in the quality of Mr. Ford's voice.
To assume that your clinical judgment is sufficient as to
determining the cause of this without properly investigating
the cause of this change is courting disaster, and further delays
proper therapy for whatever condition is causing Mr. Ford's
problem.
He was then seen with the same problem in April, May, June
and July. I feel that by not properly investigating the etiology
of the symptoms following the second visit in March, Dr.
Blacksmith's care fell below the accepted standards of the
community. To not investigate following the April, May and
June visit, I feel, is unconscionable behavior on the part of
a physician and I feel sets a new standard for disregarding
significant important signs and symptoms which could be life
threatening. This delay in therapy may ultimately prove to
be a death sentence for Mr. Ford. Certainly I recognize as
all physicians do that there is no guarantee regarding the
treatment of cancer, but it is accepted without question that
the earlier any tumor is found and treated, the greater the
chance of curing the patient without performing mutilating
disfiguring surgery, as was necessary in order to attempt to
affect a cure for Mr. Ford. Had he been properly investigated
following the visit in March, I would not be reviewing this
record for unaccepted quality of care.
In summary, I feel Dr. Blacksmith was negligent and that
his care fell below accepted standards of care for a family
practitioner in that he failed to perform proper studies and
seek proper consultation for complaints that reflected that
a serious potentially life threatening situation existed, and
the failure to investigate these complaints in a timely fashion
constitute in my professional opinion medical negligence.
EJZ/jmc
Sincerely,
~?;::' ?
Edward J. Zivic M.D.
,/
Dennil H, KrauI, M.D,
1275 York AWlnue New York. New York 10021
(212) 639 5621 . Fax (212) 717.3302
December 12, 1996
Mr. Michael J. Navitsky
4503 North Front Street
Harrisburg, PA 17110-1708
RE: Russell Ford
Dear Mr. Na'litsky:
As we have discussed, I have reviewed the medical records pertammg to the care of Mr.
Russell Ford. You had provided me with records from the patient's multiple out-patient
visits with Dr. Blacksmith, ini1ial consultation by Dr. Russell Macaluso, and his entire
records from Hershy Medical Cen1er. As I have discussed, the focus of my review is
whether a delay in diagnosis existed in the management of the patient's care while being
evalua1ed by Dr. Gary Bla::ksmith. The patient was initially evaluated for complaint of
cough on 1211/93. The patien1 was treated for acute bronchitis with Ceftin 250 mg 1 PO
BID #10 with 1 refill. He was advised to n01ify the office if there was no improvemen1 in
his condition. On 2/22/94, the pa1ient continued 10 complain of cough and discomfon
over the posterior pharynx. There was notation of his continued use of tobacco
products. The pa1ient was treated with Amoxicillin250 mg I PO TID#30 and instructed
to consume large quan1i1ies of fluids. He was advised to return in several months. The
patient returned prior to his scheduled appointment on 3/8/94 complaining of symp10ms
which were interpreted as acute bronchitis. There was a question of blood tinged
sputum. On 3/22/94, the patient continued to complain of slight nasal quality to his
speech and he was treated with a combination of Beconase AQ 1 spray in each nostril
BID and PCE 500 mg 1 PO BID #24. On 4/12/94, the patient continued to complain of
discomfon over the pos1erior pharynx and a produc1ive yellow sputum. He was treated
with Augmenten 250 mg 1 PO Q8 hours. He was advised to return in 1-2 months. The
patient was then seen on 5/10/94. His major complain1 was of discomfon over the
paranasal sinuses. Dr. Blacksmith continued to note a sligh1 nasal quality to his speech.
He was again encouraged to use Vancenase AQ and a decongestant. The patient was
evaluated on 6/9/94 complaining of persistent sputum. He was trea1ed with Augmenten
500 mg Q8 #21 with 1 refill, Bromfed capsules and advised 10 continue to use the
Vancenase. He was instruc1ed 10 contac1 the office should there be reoccurrence of his
symp10ms. The patient was seen for the last time by Dr. Blacksmith on 7/21/94 for
upper respiratory tract infection. There continued to be a nasal quality to his speech. Al
this juncture, the patien1 was advised to have an ENT consultation.
The major issues which have arisen in reviewing this case is whether a delay in diagnosis
alened the patien1's outcome. The treating physician was aware of the patient's 60 pack
M, NavilSky
12/12/96
Page 2
year history of tobacco use and heavy alcohol use consisting of a 6 pack per day. In
such a patient, the continued persistence of pulmonary and upper respiratory tract
infections would cenainly raise the ques1ion of whether additional consultation would be
in order. Specifically. there is no record of a chest x-ray being obtained, consideration
of sputum cytology, or either pulmonary or ololaryngology consultation. The possible
presence of blood on 3/8/94 should have cenainly raised these issues. Coupled with the
change in voice quality on 3/22/94. this is the time that 1 would focus on addi1ional
consultation being appropriate.
Thus, there is approximately a 4 month delay from th~ time of the patient's most peninent
symp10ms on 3/8/94 and 3/22/94 to the time he was advised to undergo otolaryngology
consultation on 7/21/94. This 4 month period provided the supraglonic cancer an
opponunity to progress, For the purpose of this discussion, 1 separa1e supraglonic
cancer into early (T.. T2) vs. late (T3. T4) lesions. Early lesions are often amenable 10 a
single form of treaunent consisting of either radiation therapy or surgery. Radia1ion can
be performed in a way which wiIlspare the larynx. Similarly. panial excision (supraglonic
laryngectomy) may be performed in a way thai preserves the vocal cords. More
advanced lesions often require multimodal therapy. Options consist of total laryngeclOmy
w/wo radiation therapy, hyperfractionated radiation therapy, or chemotherapy and
radiation therapy.
Within a reasonable degree of medical cenainty. the medical management in this case
increased the patient'S risk of harm from this disease. Given the 8 month history of
persistence of symptoms, 1 feel there was a deviation from standard medical practice in
the management of this patient. He required additional evaluation based on his
symptoms.
1 hope this has adequately reviewed the patien1' s case material. Please do not hesitate
to contact me ifadditional information is required, BeS1 wishes,
Sincerely yours"
I
J~.
Head and Neck Surgery
Director, Speech and Hearing
s
Center
DHKfam
PLAINTIFF'S
EXHIBIT
f3
..
PennState ueisinger
Heal1h System
/
February 4, 1998
Stellon of ()1()lar~'nIlOloR.\ .
Htad and !'.rr~ SUl1tf~
M.C. HIl'l1
P.O, Uu, H~1I
Ilmh.). I'A 1711)).IIH~1I
717 531 H~~~ Tel
717531 bllo() fa,
Michael J. Navitsky
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, P A 17110-1708
RE: FORD,RUSSELL
MSHMC#328361
Dear Mr. Navitsky:
I am writing this letter on behalf of my patient, Russell Ford, who you arc representing
in a claim against Dr. Gary Blacksmith. As you know, I have been the surgical
oncologist involved with Russell's larynx cancer care. This letter will serve as the
summary of my care for Russell to date. I have also included my most recent office
notes.
Mr. Ford initially presented to me on August 2, 1994 after referral by Dr. Russell
Macaluso, an otolaryngologist in Carlisle. Mr. Ford, at that time, had been told that he
had a cancer of his larynx by endoscopic evaluation although a endoscopic biopsy had
not yet been perfonned. He had several medical problems complicating this history
including coronary artery disease, angina, and tobacco and alcohol abuse. He was
clinically staged, in the office and on the basis of his imaging studies, as a T3NOMO,
stage 3,Iarynx cancer (supraglottic). The history. at my initial evaluation, was that Mr.
Ford initially noted symptoms back in December of 1993 nine months prior to my
evaluation. His symptoms included a mild sore throat and he was treated for an upper
respiratory infection. Thcre was an apparent change in his symptoms in March of 1994
when he had a questionable history of hemoprysis. There was also some voice change
consistent with a "hot potato" voice. He had also begun to lose weight and.despite
being an obese man, had lost thirty pounds prior to my evaluation in August.
Ultimately, he was referred to an ENT. Dr. Macaluso, who flexibly endoscope the
patient in the office and identified this large. partially obstructing, supraglottic tumor. I
am unclear of the date that Dr, Macaluso saw the patient and 1 do not have any records
as to what care was provided to the patient in the interim between March 10. 1994 and
his evaluation in my office in August.
He was referred for a cardiology evaluation given his history of angina and previous
coronary artery disease. He reportedly had a catheterization done in 1986 which
showed one partially occluded vessel and was not felt to be an angioplasty candidate.
He did admit to having angina on exertion. During his cardiology work-up a stress test
was perfonned. He was unable to perfonn a treadmill exercise and so a Dipyridamole
Thallium study was perfonned. This, fortunately, showed appropriate hemodynamic
response, nonnal myocardial perfusion and no ischemic EKG changes. and he was
cleared for surgery. On August 5. 1994 he underwent a local tracheostomy and direct
laryngoscopy and biopsy. This came back with a diagnosis of squamous carcinoma as
expected, and he was staged as a T3NOMO, stage 3, larynx cancer based on pre-
epiglottic space invasion. After discussing the risks and benefits with surgical therapy
IOSI!I'II". WIlUJJ.O
'I1!Uy.. HYMAN
DNID 1. Ll/TZ
WICIlAIlL IlIlllSllt
I'AMIIL\ 0. SJMIAH
IICHAID A.IADI Qf"R
Angino
DRovner
N1lllLIl C. OLSON
WICIIAI!L I. NAlo'mICY
IOSI!ftl N. IlOIUA
DlJANIl s, IAUICX
/AMIlS DoClIfl1
llo\YID .. WJSNIISKI
USl1!D IN
11IEBFSrLAWYF1S
-IN-
AMERICA
aJCIWlD C. ANOINO
NIIIL J, ROVNI!Il
April 2, 1998
Gary T. Lathrop, Esquire
Thomas, Thomas & Hafer, LLP
305 North Front street
P.O. Box 999
Harrisburg, PA 17108-0999
In Re: Ford v. Blacksmith. et al
Dear Gary:
Thank you for your letter of March 30, 1998. It is most
certainly an honor to have Pete Curry join us in this case.
On February 16, 1998, you spoke with my secretary, Jessie,
concerning the deposition of Dr. Levin. You requested that the
deposition take place either on April 8 or 15, 1998. She worked
very hard with Dr. Levin's office to rearrange schedules so that
the deposition could take place as requested on April 8, 1998. It
was promptly scheduled and noticed. There was no discussion about
you first scheduling a "discovery deposition."
I am aware of no case in pennsylvania which would authorize
you to take a discovery deposition of an expert. While I think
this would be beneficial and works well in other states, this, to
my knowledge, is not the law in Pennsylvania.
I am also not aware of any case in Pennsylvania which holds
that a treating physician's deposition cannot take place without
the Defendant first conducting a discovery deposition. In any
event, if this was your intent, and there was some legal basis for
authorizing such a deposition, it could and should have been
addressed in February.
I sent you the Hershey Medical Center chart as well as
Dr. Macaluso's chart on September 24, 1996. I do not intend to
recopy either of these charts unless you need them again. I have
never objected to you issuing a subpoena to obtain yet another copy
of either chart.
82410{JKW
PLAINTIFF'S
EXHIBIT
C.
4503 NORTH FRONT STREET. HARRISBURG, PA 17110.170B
.(717)~1
FAX (7
Page Two
Gary T. Lathrop, Esquire
April 2, 1998
I am enclosing the last copy that I will send you of the
Ford's W2 forms, which were sent to me by the Internal Revenue
service back in January of 1997. As I previously reported to you,
we needed to obtain these from the Internal Revenue service. This
information was given to you back on September 4, 1997.
Fact witnesses include my clients and the Defendant. Both
have been deposed. I cannot think of any other fact witnesses at
this time. Can you?
Please give my best regards to Pete and I suggest that he
enter an appearance in this case. Please let me know if I should
direct future correspondence to him. This case has been listed for
the CUmberland County term, which begins on May 18, 1998.
A thorough review of this file reveals that on september 24,
1996, I sent you the records of Dr. Macaluso and Hershey Medical
center. On November 18, 1996, I answered your interrogatories. On
February 24, 1997, I sent you Mr. and Mrs. Ford's tax returns and
the social security decision. On April 1, 1997, I provided you
with Dr. Levin's records from Hershey Medical Center. On May 1,
1997, I enclosed Dr. Kraus' report and advised you that I intended
to list the case for trial. On May 30, 1997, I provided you with
Dr. Kraus' curriculum vitae. On september 4, 1997, I once again
provided you with my clients' tax returns and W2 forms that I
received from the Internal Revenue Service. On september 12, 1997,
I provided you with my client's social security file. On
January 19, 1998, I provided you with our economic report from
Mr. Leister. On January 29, 1998, I provided you with our report
from Dr. Zivic. On March 19, 1998, I provided you with a copy of
Dr. Levin's letter as well as another copy of Dr. Zivic's report
and Mr. Leister's report and advised you that I was listing the
case for trial.
Dr. Levin is Mr. Ford's treating physician and he has also
agreed to serve as a medical expert against Dr. Macaluso. I will
try to reschedule his video-deposition because Pete is just now
getting involved in the case. The deposition must, however, take
place prior to the cumberland county May trial term.
Alternatively, I will determine if Dr. Levin could testify live at
trial.
Mr. Ford's cancer would not have spread, he would not have needed
surgery or an extensive surgery, and he would still have a
functional voice, which he currently does not, and will never
regain.
2. plaintiffs admit that the Defendants answered the
complaint in Jalluary of 1996.
3. Plaintiffs admit that the Defendants propounded
Interrogatories and Request for Documents, to which they provided
responses promptly.
4. plaintiffs admit that Dr. Blacksmith's deposition was
delayed substantially because of his illness.
5. Plaintiffs admit that they have provided Defendants with
everything that was asked for in discovery and that the Defendants
were provided with the report of Dr. Kraus on May 1, 1997, with the
economic report of Mr. Leister on January 19, 199B, with the report
of Dr. Zivic on January 29, 199B, and with the report of Dr. Levin
on March 19, 199B. Plaintiffs further admit that Defendants'
Interrogatories were answered on November lB, 1996 and that the
Defendants were provided with the Plaintiffs' tax returns and
social security decision on February 24, 1997. Plaintiffs further
admit that the defense was provided with the records of Plaintiff's
treating physicians and Hershey Medical Center on September 24,
1996. Plaintiffs further admit that the defense was provided with
an additional copy of Dr. Levin's records from Hershey Medical
Center on April 1, 1997. Plaintiffs further admit that on May 1,
1997, the Defendants were put on notice of Plaintiffs' intention to
2
list the case for trial. Plaintiffs further admit that the defense
was even provided with the curriculum vitae of Dr. Kraus on May 30,
1997, despite the fact that this is not required under our rules of
discovery. Plaintiffs further admit that on September 4, 1997, the
defense was once again provided with a copy of their tax returns
and W2 forms that were received from the Internal Revenue Service.
plaintiffs further admit that on September 12, 1997, the defense
was provided with Mr. Ford's complete social Security file.
Plaintiffs further admit that on March 19, 199B, the defense was
provided with not only a copy of Dr. Levin's letter, but yet
another copy of Dr. Zivic's report and the economic report of
Mr. Leister, and were advised that plaintiffs intended to list the
case for trial. A photocoPY of undersigned counsel's April 2, 199B
correspondence to defense counsel is attached as Plaintiffs'
Exhibit c.
6. plaintiffs admit that the deposition of Dr. Roger Levin
was scheduled for April B, 199B. The remainder of the allegations
are denied. Plaintiffs, not defense counsel, arranged for the
deposition of Dr. Levin. Dr. Levin was plaintiff's treating
physician following the Defendant's negligence. Dr. Levin operated
on Mr. Ford and has continued to monitor his condition. His
deposition was scheduled for use at trial. At defense counsel's
request, the date of the deposition was set for April B, 199B.
3
This deposition was never noticed as a discovery deposition.
Defense counsel never requested a discovery deposition of Dr.
Levin. A defense medical examination was never requested by
defense counsel.
7. Denied. When defense counsel was contacted concerning
the scheduling of Dr. Levin's testimony so that his testimony could
be taken by the Plaintiffs for use at trial, defense counsel
requested that the deposition be scheduled for April 8, 1998 or
April 15, 1998. Defense counsel never requested a discovery
deposition. Defense counsel never requested a defense medical
examination.
8. Denied. Defense counsel has been provided with all
documents requested, and defense counsel knows well who the
witnesses are to this case, We all can misplace things, and it is
assumed that is what occurred in this case at defense counsel's
office. Referring to Plaintiffs' Exhibit c, the April 2, 1998
correspondence, records have been provided time and time again.
9. Denied. This is case is ready for trial. Dr. Levin's
deposition may not be taken by the Defendants under our rules of
discovery. Defense counsel has been provided with Dr. Levin's
report. No medical examination has ever been requested and a
decision to have one conducted at this point is too late and should
be denied.
10. Denied. Defendants have learned nothing new in well over
a year as to Plaintiffs' allegations and abilities to prove this
case. They knew from the outset that Dr. Blacksmith failed to
4
EOWARD J. ZIVIC. M. O.
8808 If''ANKaTOWN ROAD
~ITT..URGH. ,,,. IIIZ'5
TaL....Ho....731-2870
Michael J. Navitsky
ANGINO & ROVNER
4503 North Front street
Harrisburg, Pa. 17110-1708
RE: Russell Ford
January 23, 1998
Dear Mr. Navitsky:
At your request, I have reviewed the deposition of Mr.
Russell Ford, Dr. Gary L. Blacksmith Jr., the medical records
of Dr. Blacksmith and the Hershey Medical Center. Based on
this review I have made the following observations and reached
the following con~lusions.
Mr. Ford was a 48 year old white male with a long history
of significant alcohol and tobacco abuse, placing him at
significant risk for the development of oropharyngeal, upper
respiratory, or pulmonary carcinomas. In reviewing Dr.
Blacksmith's records, the significant time frame, I feel,
relative to the care of Mr. Ford revolves around the eight month
period from December 1993 through July 1994. I found the care
he rendered to Mr. Ford from 1983 to December of 1993 proper,
correct, and in keeping with the accepted standard of care for
the community.
As noted in Mr. Ford's records, he developed symptoms of
an upper respiratory-bronchial problem for which he sought
medical treatment in December of 1993. He antedates this history
of a cough for approximately two months. He was seen in February
and twice in March, and for all intents and purposes, despite
varying antibiotic treatments, did not significantly improve,
nor did his symptomotology change. Particularly worrisome in
the review of the records is the question of hemoptysis. The
second visit in March, I feel, was a particularly ~ritical visit
relative to the care of Mr. Ford. We have a problem relative
to upper respiratory symptomotology which had previously resolved
without incident now not responding to accepted adequate therapy.
The uncertainty of a particularly dangerous symptom, namely
hemoptysis, in a heavy smoker places the physician in a position
to investigate for the possibility of life threatening problems,
specifically, does the patient have an early cancer growing
somewhere causing this.
At this stage I feel Mr. Ford should have had studies done
to investigate the cause of his refractory problem. A chest
x-ray should have been done and if this failed to demonstrate
the reason for the chronicity of this problem, specialty
consultation should have been obtained. Also, on the March
PLAINTIFF'S
EXHIBIT
Pt-
EDWARD J. ZIVIC. M. D.
22, visit a change is noted in the quality of Mr. Ford's voice.
To assume that your clinical judgment is sufficient as to
determining the cause of this without properly investigating
the cause of this change is courting disaster, and further delays
proper therapy for whatever condition is causing Mr. Ford's
problem.
He was then seen with the same problem in April, May, June
and July. I feel that by not properly investigating the etiology
of the symptoms following the second visit in March, Dr.
Blacksmith's care fell below the accepted standards of the
community. To not investigate following the April, May and
June visit, I feel, is unconscionable behavior on the part of
a physician and I feel sets a new standard for disregarding
significant important signs and symptoms which could be life
threatening. This delay in therapy may ultimately prove to
be a death sentence for Mr. Ford. Certainly I recognize as
all physicians do that there is no guarantee regarding the
treatment of cancer, but it is accepted without question that
the earlier any tumor is found and treated, the greater the
chance of curing the patient without performing mutilating
disfiguring surgery, as was necessary in order to attempt to
affect a cure for Mr. Ford. Had he been properly investigated
following the visit in March, I would not be reviewing this
record for unaccepted quality of care.
In summary, I feel Dr. Blacksmith was negligent and that
his care fell below accepted standards of care for a family
practitioner in that he failed to perform proper studies and
seek proper consultation for complaints that reflected that
a serious potentially life threatening situation existed, and
the failure to investigate these complaints in a timely fashion
constitute in my professional opinion medical negligence.
Sincerely,
EJZ/jmc
~/1/'
~~~.. ?
Edward J. Zivic M.D.
,.
Dennla H. Krau.. M.D.
1275 Yolk A\I8nue New'lbrk. New 'lbrk 10021
(212) 639 5621 . Fax (212) 717.3302
December 12. 1996
Mr. Michael J. Navitsky
4503 North Front Street
Harrisburg, PA 17110-1708
RE: Russell Ford
Dear Mr. Navitsky:
As we have discussed, I have reviewed the medical records pertammg to the care of Mr.
Russell Ford. You had provided me with records from the patient's multiple out-patient
visits with Dr. Blacksmith. initial consultation by Dr. Russell Macaluso, and his entire
records from Hershy Medical Center. As I have discussed, the focus of my review is
whether a delay in diagnosis existed in the management of the patient's care while being
evaluated by Dr. Gary Blacksmith. The patient was initially evaluated for complaint of
cough on 1217/93. The patient was treated for acute bronchitis with Ceftin 250 mg 1 PO
BID #10 with 1 refill. He was advised to notify the office if there was no improvement in
his condition. On 2/22/94. the patient continued to complain of cough and discomfon
over the posterior pharynx. There was notation of his continued use of tobacco
products. The patient was treated with Amoxicillin250 mg 1 PO TID#30 and instructed
to consume large quantities of fluids. He was advised to return in several months. The
patient returned prior to his scheduled appointment on 3/8/94 complaining of symptoms
which were interpreted as acute bronchitis. There was a question of blood tinged
sputum. On 3/22/94, the patient continued to complain of slight nasal quality to his
speech and he was treated with a combination of Beconase AQ 1 spray in each nostril
BID and PCE 500 mg 1 PO BID #24. On 4/12/94, the patient continued to complain of
discomfon over the posterior pharynx and a productive yellow sputum. He was treated
with Augmenten 250 mg 1 PO Q8 hours. He was advised to return in 1-2 months. The
patient was then seen on 5/10/94. His major complaint was of discomfon over the
paranasal sinuses. Dr. Blacksmith continued to note a slight nasal quality to his speech.
He was again encouraged to use Vancenase AQ and a decongestant. The patient was
evaluated on 6/9/94 complaining of persistent sputum. He was treated with Augmenten
500 mg Q8 #21 with 1 refill. Bromfed capsules and advised to continue to use the
Vancenase. He was instructed to contact the office should there be reoccurrence of his
symptoms. The patient was seen for the last time by Dr. Blacksmith on 7/21/94 for
upper respiratory tract infection. There continued to be a nasal quality to his speech. At
this juncture, the patient was advised to have an ENT consultation.
The major issues which have arisen in reviewing this case is whether a delay in diagnosis
alened the patient's outcome. The treating physician was aware of the patient's 60 pack
..
PLAINTIFF'S
EXHIBIT
(3
/
PennState ueisinger
Health System
Srcthm uf (Utlhlf~ n~nlult\ .
1IC'lld IInd 't'c\.. ~u~rr~
Me 11t~11
p,n 14m X~II
Her'\hc~. PA 170.\,\.OK511
717 ~J1 K4~~ Tol
717 ~J1 hlbO 1'.\
February 4, 1998
Michael J. Navitsky
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, P A 17110-1708
RE: FORD,RUSSELL
MSHMC#328361
Dear Mr. Navitsky:
1 am writing this letter on behalf of my patient. Russell Ford, who you are representing
in a claim against Dr. Gary Blacksmith. As you know. I have been the surgical
oncologist involved with Russell's larynx cancer care. This letter will serve as the
summary of my care for Russell to date. I have also included my most recent office
notes.
Mr. Ford initially presented to me on August 2, 1994 after referral by Dr. Russell
Macaluso, an otolaryngologist in Carlisle. Mr. Ford. althattime, had been told that he
had a cancer of his larynx by endoscopic evaluation although a endoscopic biopsy had
not yet been performed. He had several medical problems complicating this history
including coronary artery disease. angina. and tobacco and alcohol abuse. He was
clinically staged. in the office and on the basis of his imaging studies. as a T3NOMO.
stage 3. larynx cancer (supraglottic). The history. at my initial evaluation. was that Mr.
Ford initially noted symptoms back in December of 1993 nine months prior to my
evaluation. His symptoms included a mild sore throal and he was treated for an upper
respiratory infection. There was an apparent change in his symptoms in March of 1994
when he had a questionable history of hemoptysis. There was also some voice change
consistent with a "hot potato" voice. He had also begun to lose weight and.despite
being an obese man, had lost thirty pounds prior to my evaluation in August.
Ultimately. he was referred to an ENT. Dr. Macaluso. who flexibly endoscope the
patient in the office and identified this large. partially obstructing. supraglottic tumor. I
am unclear of the date that Dr. Macaluso saw the patient and I do not have any records
as to what care was provided to the patient in the interim between March 10. 1994 and
his evaluation in my office in August.
He was referred for a cardiology evaluation given his history of angina and previous
coronary artery disease. He reportedly had a catheterization done in 1986 which
showed one partially occluded vessel and was not felt to be an angioplasty candidate.
He did admit to having angina on exenion. During his cardiology work-up a stress test
was performed. He was unable to perform a treadmill exercise and so a Dipyridamole
Thallium study was performed. This. fortunately. showed appropriate hemodynamic
response. normal myocardial perfusion and no ischemic EKG changes. and he was
cleared for surgery. On August 5. 1994 he underwent a local tracheostomy and direct
laryngoscopy and biopsy. This came back with a diagnosis of squamous carcinoma as
cxpected. and he was staged as a T3NOMO. stage 3. larynx cancer based on pre-
epiglonic space invasion. After discussing the risks and benefits with surgical therapy
lOSIlPIIW. WIlLILID
11!IUlY I. KYMAN
IlNlD l.. wrz
WIOlAl!I. II. ItDSIJt
MWBIA 0. SHUWAN
aJCILWI to. SAIlI.Oa
Angino
D Rovner
US11!ll1ll
tIlJOU! C. OI.SOH
JoOCHAJ!L I. NAVTT'SICY
IOIIIPII W. /lllIUA
lIUAIlIll.1LUAICIt
IAMBS DoClIll1
DAVID I. WISNIlSXI
11IE 8FSr lAWYERS
-11I-
AMERICA
Il/CWUl C. ANOINO
NEIL I. ROVNER
April 2, 1998
Gary T. Lathrop, Esquire
Thomas, Thomas & Hafer, LLP
305 North Front street
P.O. Box 999
Harrisburg, PA 17108-0999
In Re: Ford v. BlaCKsmith. et al
Dear Gary:
ThanK you for your letter of March 30, 1998. It is most
certainly an honor to have Pete curry join us in this case.
On February 16, 1998, you spoke with my secretary, Jessie,
concerning the deposition of Dr. Levin. You requested that the
deposition take place either on April 8 or 15, 1998. She worked
very hard with Dr. Levin's office to rearrange schedules so that
the deposition could take place as requested on April 8, 1998. It
was promptly scheduled and noticed. There was no discussion about
you first scheduling a "discovery deposition."
I am aware of no case in Pennsylvania which would authorize
you to take a discovery deposition of an expert. While I think
this would be beneficial and works well in other states, this, to
my knowledge, is not the law in Pennsylvania.
I am also not aware of any case in Pennsylvania which holds
that a treating physician's deposition cannot take place without
the Defendant first conducting a discovery deposition. In any
event, if this was your intent, and there was some legal basis for
authorizing such a deposition, it could and should have been
addressed in February.
I sent you the Hershey Medical Center chart as well as
Dr. Macaluso's chart on September 24, 1996. I do not intend to
recopy either of these charts unless you need them again. I have
never objected to you issuing a subpoena to obtain yet another copy
of either chart.
B2410{JKW
PLAINTIFF'S
EXHIBIT
C
4503 NORTH FRONT STREET, HARRISBURG, PA 17110.1708
(71n 238-6791
FAX (7
Page Two
Gary T. Lathrop, Esquire
April 2, 199B
I am enclosing the last copy that I will send you of the
Ford's W2 forms, which were sent to me by the Internal Revenue
service back in January of 1997. As I previously reported to you,
we needed to obtain these from the Internal Revenue service. This
information was given to you back on September 4, 1997.
Fact witnesses include my clients and the Defendant. Both
have been deposed. I cannot think of any other fact witnesses at
this time. Can you?
Please give my best regards to Pete and I suggest that he
enter an appearance in this case. Please let me knoW if I should
direct future correspondence to him. This case has been listed for
the cumberland county term, which begins on May 1B, 199B.
A thorough review of this file reveals that on september 24,
1996, I sent you the records of Dr. Macaluso and Hershey Medical
Center. On November 1B, 1996, I answered your interrogatories. On
February 24, 1997, I sent you Mr. and Mrs. Ford's tax returns and
the social security decision. On April 1, 1997, I provided you
with Dr. Levin's records from Hershey Medical Center. On May 1,
1997, I enclosed Dr. Kraus' report and advised you that I intended
to list the case for trial. On May 30, 1997, I provided you with
Dr. Kraus' curriculum vitae. On september 4, 1997, I once again
provided you with my clients' tax returns and W2 forms that I
received from the Internal Revenue Service. On september 12, 1997,
I provided you with my client's social security file. On
January 19, 199B, I provided you with our economic report from
Mr. Leister. On January 29, 199B, I provided you with our report
from Dr. Zivic. On March 19, 199B, I provided you with a copy of
Dr. levin's letter as well as another copy of Dr. Zivic's report
and Mr. Leister's report and advised you that I was listing the
case for trial.
Dr. Levin is Mr. Ford's treating physician and he has also
agreed to serve as a medical expert against Dr. Macaluso. I will
try to reschedule his video-deposition because Pete is just now
getting involved in the case. The deposition must, however, take
place prior to the cumberland county May trial term.
Alternatively, I will determine if Dr. Levin could testify live at
trial.