Preview
@ @ 45 139 a
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1580CV00130
DAVID KIELSON AND GAIL KIELSON
Plaintiffs
V. DEFENDANTS, ALBERT LIM, D.O.
AND PIONEER VALLEY
BRIAN D. JOHNSON, M.D., ANESTHESIA, LLC’S ANSWER TO
ALBERT LIM, D.O., LINDA PRESTON, PLAINTIFFS’ SECOND AMENDED
M.D.; AND PIONEER VALLEY COMPLAINT AND JURY DEMAND
ANESTHESIA, LLC
Defendants
The defendants, Albert Lim, D.O. and Pioneer Valley Anesthesia, LLC, hereby answer
plaintiffs’ Second Amended Complaint as follows:
FIRST DEFENSE
PARTIES
1. The defendants are without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in paragraph 1.
2. The allegations set forth in paragraph 2 pertain to a defendant other than these
defendants and therefore no answer is required.
3. The defendants admit the allegations set forth in paragraph 3.
4. The allegations set forth in paragraph 4 pertain to a defendant other than these
defendants and therefore no answer is required.
5. The defendants admit that Dr. Lim is a physician who provided medical care to
the plaintiff, David Kielson, and that the service of the Complaint was accepted by Mirick,
Con
\ HAT
APR YA 2017
Client Matter’24762/00014/A3667099 DOCKO’Connell, DeMallie & Lougee, LLP, 100 Front Street, Worcester, MA 01608-1477. Unless
expressly admitted herein, the defendants deny the allegations set forth in paragraph 5.
JURISDICTION AND VENUE
6. The allegations set forth in paragraph 6 contain contentions of law, to which no
answer is required. Further responding, Dr. Lim currently resides in California. The defendants
do not dispute the jurisdiction of this Court.
7. The defendants do not dispute the venue of this Court. The defendants deny the
remaining allegations in paragraph 7.
FACTUAL BACKGROUND
8. The defendants admit the allegations set forth in paragraph 8.
9. The allegations in paragraph 9 purport to summarize medical records, which
speak for themselves, therefore, no answer is required. To the extent that paragraph 9 is deemed
to contain allegations of fact, they are denied.
10. The allegations in paragraph 10 purport to summarize medical records, which
speak for themselves; and therefore, no answer is required. To the extent that paragraph 10 is
deemed to contain allegations of fact, they are denied.
11. The defendants deny the allegations set forth in paragraph 11.
12. The defendants deny the allegations set forth in paragraph 12.
13. The defendants deny the allegations set forth in paragraph 13.
14. The defendants deny the allegations set forth in paragraph 14.
15. The defendants deny the allegations set forth in paragraph 15.
16. The defendants deny the allegations set forth in paragraph 16.
Client Matteri24752:00014/A3667099 DOCK 217. The allegations of paragraph 17 concern a defendant other than these defendants,
and therefore, no answer is required.
18. The defendants deny the allegations set forth in paragraph 18.
19. The defendants deny the allegations set forth in paragraph 19.
COUNT I
Negligence/Informed Consent
20. The defendants repeat and reallege their answers to paragraphs 1 — 19 of
plaintiffs’ Second Amended Complaint, and hereby incorporate them by reference.
21. The defendants deny the allegations set forth in paragraph 21, including
sub-paragraph (A). Sub-paragraph (B) pertains to a defendant other than these defendants;
therefore, no answer is required as to sub-paragraph (B).
22. The defendants deny the allegations set forth in paragraph 22.
COUNT II
Medical Negligence
23. The defendants repeat and reallege their answers to paragraphs | — 22 of
plaintiffs’ Second Amended Complaint, and hereby incorporate them by reference.
24. The defendants deny the allegations set forth in paragraph 24, including
sub-paragraphs (A) and (B).
24 [sic]. The allegations of paragraph 24 [sic] concern a defendant other than this
defendant, and as such, no answer is required.
25. The defendants deny the allegations set forth in paragraph 25.
DAMAGES
26. The defendants repeat and reallege their answers to paragraphs | ~ 25 of
plaintiffs’ Second Amended Complaint, and hereby incorporate them by reference.
Client Mater/24762/00014/A3667099 DOCK 327. The defendants deny the allegations set forth in paragraph 27.
28. The defendants deny the allegations set forth in paragraph 28.
The defendants deny that plaintiffs are entitled to the demand for judgment following
paragraph 28.
SECOND DEFENSE
The Second Complaint fails to state a claim against the defendants upon which relief can
be granted.
THIRD DEFENSE
The negligence of the plaintiffs contributed to their injuries in this case, and recovery in
this action should be barred or diminished in accordance with the provisions of Massachusetts
General Laws, Chapter 231, §85.
FOURTH DEFENSE
The injuries allegedly sustained by the plaintiffs were caused by the act or acts of persons
for whose conduct the defendants were not responsible.
FIFTH DEFENSE
By way of affirmative defense, the defendants state that the plaintiffs’ recovery for
medical expenses is limited pursuant to the provisions of Massachusetts General Laws, Chapter
231, §60G.
SIXTH DEFENSE
By way of affirmative defense, the defendants state that the plaintiffs failed to mitigate
damages, and therefore the defendants are relieved from liability for those portions of damages,
which reasonably could have been mitigated.
Cliem Mattex/24762/00014/43667099 DOCK 4SEVENTH DEFENSE
By way of affirmative defense, the defendants state that the plaintiffs’ recovery for pain
and suffering, and other items of general damages, if any, is limited to not more than $500,000 as
provided by Massachusetts General Laws, Chapter 231, §60H.
EIGHTH DEFENSE
The defendants state that if the injured party underwent the medical procedures or
received the medical care alleged, he did so after he was fully informed and cognizant of any
risks and uncertainties involving said procedures and that the injured party exercised informed
consent to the performance of said procedures.
NINTH DEFENSE
If there was a contract between the plaintiff and the defendants, which the defendants
expressly deny, the same failed for lack of consideration and the plaintiffs are barred from
recovery.
TENTH DEFENSE
In further answering, the defendants state that this action is barred by the plaintiffs’
failure to comply with M.G.L. ¢.231, §60L.
ELEVENTH DEFENSE
The plaintiffs’ causes of action were not filed within the time provisions of the applicable
statute of limitations and should be dismissed.
TWELVTH DEFENSE
By way of affirmative defense, the defendants state that the plaintiffs’ injuries were the
result of intervening and superseding acts or omissions for which these defendants were not
responsible.
Client Matter/24762/00018143667099 DOCK 5THIRTEENTH DEFENSE
By way of affirmative defense, the defendants state that the plaintiffs failed to mitigate
damages and therefore the defendants are relieved from liability for those portions of damages,
which reasonably could have been mitigated.
WHEREFORE, the defendants, Albert Lim, D.O. and Pioneer Valley Anesthesia, LLC,
demand that the plaintiffs’ Second Amended Complaint be dismissed, and that judgment thereon
be entered in favor of the defendants, together with costs.
JURY DEMAND
THE DEFENDANTS, ALBERT LIM, D.O. AND PIONEER VALLEY
ANESTHESIA, LLC, HEREBY DEMAND A TRIAL BY JURY OF ALL OF THE
ISSUES.
ALBERT LIM, D.O. AND
PIONEER VALLEY ANESTHESIA, LLC
By their attorneys,
j cLiX [ Lise
Joan O. Vorster, Esq., BBO #550375
Kristine M. Canepa, Esq., BBO #638314
Mirick, O’Connell, DeMallie & Lougee, LLP
100 Front Street
Worcester, MA 01608-1477
Phone: (508) 791-8500
Fax: (508) 791-8502
Dated: April an 2017
Client Marce’24762/00018/A3667099 DOCK 6CERTIFICATE OF SERVICE
I, Joan O. Vorster, hereby certify that I have this day served a copy of the foregoing
document, by mailing a copy, first class mail, postage prepaid, to:
Scott A. Sanes, Esq.
Law Office of Scott A. Sanes
785 Main Street
Great Barrington, MA 01230
Michael H. Burke, Esq.
Bulkley Richardson
1500 Main Street, Suite 2700
P.O. Box 15507
Springfield, MA 01115-5507
Dated: April & » 2017
Client Matter/24762/0001-4/43657099 DOCX
Kenneth J. Gogel, Esq.
2 Mattoon Street
Springfield, MA 01105
William J. Dailey, III, Esq.
Jason M. Morales, Esq.
Sloane and Walsh, LLP
Three Center Plaza
Boston, MA 02108
J t
Le "ek : “G6
Joan O. Vorster, Esq.
u
Preview
@ @ 45 139 a COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 1580CV00130 DAVID KIELSON AND GAIL KIELSON Plaintiffs V. DEFENDANTS, ALBERT LIM, D.O. AND PIONEER VALLEY BRIAN D. JOHNSON, M.D., ANESTHESIA, LLC’S ANSWER TO ALBERT LIM, D.O., LINDA PRESTON, PLAINTIFFS’ SECOND AMENDED M.D.; AND PIONEER VALLEY COMPLAINT AND JURY DEMAND ANESTHESIA, LLC Defendants The defendants, Albert Lim, D.O. and Pioneer Valley Anesthesia, LLC, hereby answer plaintiffs’ Second Amended Complaint as follows: FIRST DEFENSE PARTIES 1. The defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 1. 2. The allegations set forth in paragraph 2 pertain to a defendant other than these defendants and therefore no answer is required. 3. The defendants admit the allegations set forth in paragraph 3. 4. The allegations set forth in paragraph 4 pertain to a defendant other than these defendants and therefore no answer is required. 5. The defendants admit that Dr. Lim is a physician who provided medical care to the plaintiff, David Kielson, and that the service of the Complaint was accepted by Mirick, Con \ HAT APR YA 2017 Client Matter’24762/00014/A3667099 DOCKO’Connell, DeMallie & Lougee, LLP, 100 Front Street, Worcester, MA 01608-1477. Unless expressly admitted herein, the defendants deny the allegations set forth in paragraph 5. JURISDICTION AND VENUE 6. The allegations set forth in paragraph 6 contain contentions of law, to which no answer is required. Further responding, Dr. Lim currently resides in California. The defendants do not dispute the jurisdiction of this Court. 7. The defendants do not dispute the venue of this Court. The defendants deny the remaining allegations in paragraph 7. FACTUAL BACKGROUND 8. The defendants admit the allegations set forth in paragraph 8. 9. The allegations in paragraph 9 purport to summarize medical records, which speak for themselves, therefore, no answer is required. To the extent that paragraph 9 is deemed to contain allegations of fact, they are denied. 10. The allegations in paragraph 10 purport to summarize medical records, which speak for themselves; and therefore, no answer is required. To the extent that paragraph 10 is deemed to contain allegations of fact, they are denied. 11. The defendants deny the allegations set forth in paragraph 11. 12. The defendants deny the allegations set forth in paragraph 12. 13. The defendants deny the allegations set forth in paragraph 13. 14. The defendants deny the allegations set forth in paragraph 14. 15. The defendants deny the allegations set forth in paragraph 15. 16. The defendants deny the allegations set forth in paragraph 16. Client Matteri24752:00014/A3667099 DOCK 217. The allegations of paragraph 17 concern a defendant other than these defendants, and therefore, no answer is required. 18. The defendants deny the allegations set forth in paragraph 18. 19. The defendants deny the allegations set forth in paragraph 19. COUNT I Negligence/Informed Consent 20. The defendants repeat and reallege their answers to paragraphs 1 — 19 of plaintiffs’ Second Amended Complaint, and hereby incorporate them by reference. 21. The defendants deny the allegations set forth in paragraph 21, including sub-paragraph (A). Sub-paragraph (B) pertains to a defendant other than these defendants; therefore, no answer is required as to sub-paragraph (B). 22. The defendants deny the allegations set forth in paragraph 22. COUNT II Medical Negligence 23. The defendants repeat and reallege their answers to paragraphs | — 22 of plaintiffs’ Second Amended Complaint, and hereby incorporate them by reference. 24. The defendants deny the allegations set forth in paragraph 24, including sub-paragraphs (A) and (B). 24 [sic]. The allegations of paragraph 24 [sic] concern a defendant other than this defendant, and as such, no answer is required. 25. The defendants deny the allegations set forth in paragraph 25. DAMAGES 26. The defendants repeat and reallege their answers to paragraphs | ~ 25 of plaintiffs’ Second Amended Complaint, and hereby incorporate them by reference. Client Mater/24762/00014/A3667099 DOCK 327. The defendants deny the allegations set forth in paragraph 27. 28. The defendants deny the allegations set forth in paragraph 28. The defendants deny that plaintiffs are entitled to the demand for judgment following paragraph 28. SECOND DEFENSE The Second Complaint fails to state a claim against the defendants upon which relief can be granted. THIRD DEFENSE The negligence of the plaintiffs contributed to their injuries in this case, and recovery in this action should be barred or diminished in accordance with the provisions of Massachusetts General Laws, Chapter 231, §85. FOURTH DEFENSE The injuries allegedly sustained by the plaintiffs were caused by the act or acts of persons for whose conduct the defendants were not responsible. FIFTH DEFENSE By way of affirmative defense, the defendants state that the plaintiffs’ recovery for medical expenses is limited pursuant to the provisions of Massachusetts General Laws, Chapter 231, §60G. SIXTH DEFENSE By way of affirmative defense, the defendants state that the plaintiffs failed to mitigate damages, and therefore the defendants are relieved from liability for those portions of damages, which reasonably could have been mitigated. Cliem Mattex/24762/00014/43667099 DOCK 4SEVENTH DEFENSE By way of affirmative defense, the defendants state that the plaintiffs’ recovery for pain and suffering, and other items of general damages, if any, is limited to not more than $500,000 as provided by Massachusetts General Laws, Chapter 231, §60H. EIGHTH DEFENSE The defendants state that if the injured party underwent the medical procedures or received the medical care alleged, he did so after he was fully informed and cognizant of any risks and uncertainties involving said procedures and that the injured party exercised informed consent to the performance of said procedures. NINTH DEFENSE If there was a contract between the plaintiff and the defendants, which the defendants expressly deny, the same failed for lack of consideration and the plaintiffs are barred from recovery. TENTH DEFENSE In further answering, the defendants state that this action is barred by the plaintiffs’ failure to comply with M.G.L. ¢.231, §60L. ELEVENTH DEFENSE The plaintiffs’ causes of action were not filed within the time provisions of the applicable statute of limitations and should be dismissed. TWELVTH DEFENSE By way of affirmative defense, the defendants state that the plaintiffs’ injuries were the result of intervening and superseding acts or omissions for which these defendants were not responsible. Client Matter/24762/00018143667099 DOCK 5THIRTEENTH DEFENSE By way of affirmative defense, the defendants state that the plaintiffs failed to mitigate damages and therefore the defendants are relieved from liability for those portions of damages, which reasonably could have been mitigated. WHEREFORE, the defendants, Albert Lim, D.O. and Pioneer Valley Anesthesia, LLC, demand that the plaintiffs’ Second Amended Complaint be dismissed, and that judgment thereon be entered in favor of the defendants, together with costs. JURY DEMAND THE DEFENDANTS, ALBERT LIM, D.O. AND PIONEER VALLEY ANESTHESIA, LLC, HEREBY DEMAND A TRIAL BY JURY OF ALL OF THE ISSUES. ALBERT LIM, D.O. AND PIONEER VALLEY ANESTHESIA, LLC By their attorneys, j cLiX [ Lise Joan O. Vorster, Esq., BBO #550375 Kristine M. Canepa, Esq., BBO #638314 Mirick, O’Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608-1477 Phone: (508) 791-8500 Fax: (508) 791-8502 Dated: April an 2017 Client Marce’24762/00018/A3667099 DOCK 6CERTIFICATE OF SERVICE I, Joan O. Vorster, hereby certify that I have this day served a copy of the foregoing document, by mailing a copy, first class mail, postage prepaid, to: Scott A. Sanes, Esq. Law Office of Scott A. Sanes 785 Main Street Great Barrington, MA 01230 Michael H. Burke, Esq. Bulkley Richardson 1500 Main Street, Suite 2700 P.O. Box 15507 Springfield, MA 01115-5507 Dated: April & » 2017 Client Matter/24762/0001-4/43657099 DOCX Kenneth J. Gogel, Esq. 2 Mattoon Street Springfield, MA 01105 William J. Dailey, III, Esq. Jason M. Morales, Esq. Sloane and Walsh, LLP Three Center Plaza Boston, MA 02108 J t Le "ek : “G6 Joan O. Vorster, Esq. u