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IN THE UNITED STATED DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

AUDRINA MINTO A/K/A ARTURO MINTO
Plaintiff,

V.

KATHY L. RUMER, D.O., F.A.C.O.S; CIVIL ACTION NO, 2:18-cv-02800

DELAWARE VALLEY AESTHETICS, PLLC
D/B/A RUMER COSMETIC SURGERY

Defendants.

 

ANSWER TO PLAINTIFF’S COMPLAINT WITH AFFIRMATIVE DEFENSES OF
DEFENDANTS KATHY L. RUMER, D.O. AND
DELAWARE VALLEY AESTHETICS, PLLC D/B/A RUMER COSMETIC SURGERY

Defendants, Kathy L. Rumer, D.O. and Delaware Valley Aesthetics, PLLC d/b/a Rumer

Cosmetic Surgery, respond to Plaintiff's Complaint as follows:
JURISDICTION AND VENUE

1—2. Denied. These allegations state legal conclusions and are denied generally.
Furthermore, Answering Defendants are without sufficient information to form a belief as to the
allegations with respect to the Plaintiffs state of residency. Strict proof thereof, if relevant, is
demanded at the time of trial.

3-—5. Denied. These allegations state legal conclusions and is denied generally.

PARTIES
6. Denied. After reasonable investigation, Answering Defendants are without

sufficient information to form a belief as to the allegations set forth in this paragraph of the

Plaintiff's Complaint. Strict proof thereof, if relevant, is demanded at the time of trial.

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7. Admitted in part; denied in part. It is admitted only that Dr. Rumer is a physician
specializing in cosmetic, plastic and gender reassignment surgery who is licensed to practice
medicine in the Commonwealth of Pennsylvania. It is specifically denied that Answering
Defendant was in any way negligent or violated the standard of care.

8. Admitted in part, denied in part. Answering Defendant Delaware Valley
Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery is a corporation existing under the laws of the
Commonwealth of Pennsylvania. It was the employer of Dr. Rumer at the time material to the
allegations contained in Plaintiff's Complaint. The remainder of the allegations and/or averments
of this paragraph of Plaintiff's Complaint constitute conclusions of law and are denied generally.

oe Admitted.

FACTS

10. Denied. These allegations state legal conclusions and are denied generally.

11. Admitted in part; denied in part. It is admitted only that Dr. Rumer is a physician
specializing in cosmetic, plastic and gender reassignment surgery who is licensed to practice
medicine in the Commonwealth of Pennsylvania. It is specifically denied that Answering
Defendant was in any way negligent or violated the standard of care. The remainder of the
allegations and/or averments of this paragraph of Plaintiff's Complaint constitute conclusions of
law and are denied generally.

12. Admitted in part, denied in part. Answering Defendant Delaware Valley
Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery is a corporation existing under the laws of the
Commonwealth of Pennsylvania. It was the employer of Dr. Rumer at the time material to the
allegations contained in Plaintiff's Complaint. The remainder of the allegations and/or averments

of this paragraph of Plaintiff's Complaint constitute conclusions of law and are denied generally.

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13. Admitted in part; denied in part. It is admitted only that Dr. Rumer is a physician
specializing in cosmetic, plastic and gender reassignment surgery who is licensed to practice
medicine in the Commonwealth of Pennsylvania. It is specifically denied that Answering
Defendant was in any way negligent or violated the standard of care. The remainder of the
allegations and/or averments of this paragraph of Plaintiff's Complaint constitute conclusions of
law and are denied generally.

14-15. Denied. These allegations state legal conclusions and are denied generally.
By way of further response, all allegations as to agency, apparent agency, servancy, employment,
physicians and/or other medical personnel as alleged as to Answering Defendant is denied and
strict proof thereof is demanded at trial.

16-31. Denied. To the extent these allegations and/or averments are based on
Plaintiff's condition and/or course of treatment as set forth in the medical records, the same
speak for themselves. To the extent these allegations and/or averments are inconsistent with or
contrary to said records, the same are denied with strict proof thereof demanded at the time of
trial of this matter if material. By way of further response, Answering Defendant acted in
accordance with the applicable standard of care at all times material to the allegations contained
in Plaintiffs Complaint.

COUNT I. NEGLIGENCE
AUDRINA MINTO, a/k/a ARTURO MINTO v. KATHY L. RUMER, D.O., F.A.C.0.8

32. | Answering Defendants incorporate by reference each of their responses to the
preceding paragraphs of the Complaint as though the same were fully set forth herein at length.

33 —35. Denied. To the extent that the allegations in these paragraphs are

conclusions of law, no responsive pleading is required. By way of further response, Answering

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Defendants acted in accordance with the applicable standard of care at all times material to the
allegations contained in Plaintiff's Complaint.

WHEREFORE, Answering Defendants, Kathy L. Rumer, D.O. and Delaware Valley
Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery, hereby demand judgment in their favor and
against Plaintiff together with costs, fees, and other such relief as this Honorable Court deems
just and equitable under the circumstances.

COUNT II. NEGLIGENCE

AUDRINA MINTO, a/k/a ARTURO MINTO v. DELAWARE VALLEY AESTHETICS,
PLLC d/b/a RUMER COSMETIC SURGERY

36. Answering Defendants incorporate by reference each of their responses to the
preceding paragraphs of the Complaint as though the same were fully set forth herein at length.

37-39. Denied. To the extent that the allegations in these paragraphs are
conclusions of law, no responsive pleading is required. By way of further response, Answering
Defendants acted in accordance with the applicable standard of care at all times material to the
allegations contained in Plaintiffs Complaint.

WHEREFORE, Answering Defendants, Kathy L. Rumer, D.O. and Delaware Valley
Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery, hereby demand judgment in their favor and
against Plaintiff together with costs, fees, and other such relief as this Honorable Court deems
just and equitable under the circumstances.

DEMAND FOR JURY TRIAL

40. Answering Defendants incorporate by reference each of their responses to the

preceding paragraphs of the Complaint as though the same were fully set forth herein at length.

41. Denied. These allegations state legal conclusions and are denied generally.

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WHEREFORE, Answering Defendants, Kathy L. Rumer, D.O. and Delaware Valley
Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery, hereby demand judgment in their favor and
against Plaintiff together with costs, fees, and other such relief as this Honorable Court deems
just and equitable under the circumstances.

RELIEF REQUESTED

Denied. These allegations state legal conclusions and are denied generally.

WHEREFORE, Answering Defendants, Kathy L. Rumer, D.O. and Delaware Valley
Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery, hereby demand judgment in their favor and
against Plaintiff together with costs, fees, and other such relief as this Honorable Court deems
just and equitable under the circumstances.

AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiff failed to state a cause of action upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE

Plaintiff's claims are barred in whole, or in part, by a virtue of the doctrine of
Contributory Negligence.

THIRD AFFIRMATIVE DEFENSE

Plaintiff's claims are barred in whole, or in part, by the Doctrine of Comparative
Negligence, and thus, any claim must be reduced, as a result of his comparative negligence.

FOURTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred by the applicable Statute of Limitations. Plaintiff's claims

are barred, in whole, or in part, by the Doctrine of Assumption of the Risk.

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FIFTH AFFIRMATIVE DEFENSE
At all times material hereto, Answering Defendants provided treatment to the Plaintiff in
accordance with the applicable standard of medical care at the time and place of treatment, and
no conduct of Answering Defendants herein was the proximate cause of the alleged injuries or
damages to the Plaintiff.
SIXTH AFFIRMATIVE DEFENSE
If Answering Defendants were negligent in any respect as alleged in the Plaintiff's
Complaint, all such allegations being specifically denied, said Answering Defendants’
negligence was passive and the injury sustained by the Plaintiff was the result of an intervening
act of a third person or persons which was the superseding cause of the injuries, and therefore,
Answering Defendants are not liable.
SEVENTH AFFIRMATIVE DEFENSE
If Plaintiff suffered injuries as alleged, the same being specifically denied, the injuries
were caused by persons, including persons, entities, occurrences, instrumentalities or events
unrelated to and/or not under the control of Answering Defendants.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred and/or limited by the provisions of the Pennsylvania
Healthcare Services Malpractice Act, as amended. In accordance with Section 602 of the
Healthcare Malpractice Acts, Plaintiff shall have no right to recover for any amount which was
paid by a public collateral source of compensation or benefits.
NINTH AFFIRMATIVE DEFENSE

Pa. R.C.P. 238 relating to delay damages is unconstitutional on its face and as applied.

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TENTH AFFIRMATIVE DEFENSE

Plaintiff's claims are barred and/or limited by Pennsylvania law and legislation regarding

joint and several liability.
ELEVENTH AFFIRMATIVE DEFENSE

To the extent that Plaintiff's alleged issues of informed consent as they apply to the
informed consent doctrine, the information provided to the Plaintiff was adequate, following the
accepted standards of care at all times, and satisfied the obligations of defendant, Dr. Rumer, in
compliance with Pennsylvania law.

TWELFTH AFFIRMATIVE DEFENSE

That the claims of Plaintiff are barred in whole or in part under the provisions of the

Medical Malpractice Act of 1996, No. 135.
THIRTEENTH AFFIRMATIVE DEFENSE

The Plaintiff’s claims and/or request for damages are barred or limited by the Provisions
of the Medical Care Availability and Reduction of Error Act (MCARE), 40 P.S. §1303.101, et
seq., as amended. Each and every defense within the MCARE Act is incorporated herein by
reference as though the same were fully set forth herein at length.

FOURTEENTH AFFIRMATIVE DEFENSE

Any award given the Plaintiff shall be offset by any public collateral source of
compensation or benefits pursuant to § 602 of the Health Care Services Malpractice Act and
Plaintiff's claims for medical expenses must be reduced by the total amount of any and all
medical expenses charged, but not actually paid by or on behalf of Plaintiff. Any amount of
medical expenses claimed by Plaintiff must be reduced by any expenses that are written off or

deducted by any healthcare provider.

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FIFTEENTH AFFIRMATIVE DEFENSE
Answering Defendants reserve the right to raise the defense of release if and when
appropriate.
SIXTEENTH AFFIRMATIVE DEFENSE
Answering Defendants reserve the right to amend these affirmative defenses and to raise
cross claims and/or counter claims or file third party/joinder complaints if and when the
information warranting the same becomes known through the course of discovery in this matter.
WHEREFORE, Answering Defendants, Kathy L. Rumer, D.O. and Delaware Valley
Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery, hereby demand judgment in their favor and
against Plaintiff together with costs, fees, and other such relief as this Honorable Court deems

just and equitable under the circumstances.

LLAGHER & MURTAGH

 

John P, Shuste&Fsquire

I.D. #44675 — shustedj(@ggmfirm.com
Chilton G. Goebel, HI, Esquire

I.D. #92811 — goebele(@ggmfirm.com

Lauren A. Green, Esquire

ID. #322622 — greenl@ggmfirm.com
Attorneys for Defendants

Kathy L. Rumer, D.O., F.A.C.O.S.
and Delaware Valley Aesthetics, PLLC
d/b/a Rumer Cosmetic Surgery

The Bellevue, 5" Floor

200 S. Broad Street

Philadelphia, PA 19102

T: 215-545-7700

F: 215-732-4182

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CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the within Answer and
Affirmative Defenses of Defendants, Kathy L. Rumer, D.O., F.A.C.O.S. and Delaware Valley

Aesthetics, PLLC d/b/a Rumer Cosmetic Surgery, was filed and served upon Plaintiffs counsel

on Sept V2. , 2018, by way of the court’s electronic filing and notification system.

GERMAN, GALLAGHER & MURTAGH

BY: ee
John P. ShuSted\\
Chilton G. Goebel, III
Lauren A. Green
Attorneys for Defendants
Kathy L. Rumer, D.O., F.A.C.O.S and
Delaware Valley Aesthetics, PLLC
d/b/a Rumer Cosmetic Surgery

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