IN THE COURT OF COMMONPLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`BERNARD J. SWITALSKI, ITI,
`Administrator of the Estate of
`Beverly Ann Switalski, Deceased,
`
`CIVIL DIVISION
`
`CASE NO.: GD12-4715
`
`Plaintiff,
`
`VS.
`
`CODE: 007-Medical
`Professional Liability Action
`
`MICHAEL J. VOGINI D.O., INC.,
`a corporation, and MICHAELJ.
`VOGINI, D.O.,
`
`Defendants.
`
`TYPE OF PLEADING: Plaintiff's Pre-Trial
`Statement
`
`FILED ON BEHALFOF: Plaintiff
`
`NAME, ADDRESS AND TELEPHONE
`OF COUNSEL OF RECORD:
`John A. Caputo
`100 RossStreet
`Pittsburgh, PA 15219
`(412) 246-4775
`
`ATTORNEY’S STATE ID#16370
`
`A JURY TRIAL IS DEMANDED
`
`13-oteestebeeet
`
`}
`
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`Leona
`
`pet tee
`
`

`

`PLAINTIFF’S PRE-TRIAL STATEMENT
`
`AND NOWcomesthe plaintiff BERNARD J. SWITALSKLI,III, Administrator of the
`
`Estate of Beverly Ann Switalski, Deceased, by his attorneys JOHN A. CAPUTOand
`
`CHRISTOPHERS. HALLOCKandfiles the following Pre-Trial Statement pursuantto the
`
`Rules:
`
`I.
`
`FACTUAL NARRATIVE
`
`Plaintiff's decedent, Beverly Ann Switalski, died at the age of 47 years old on May2,
`
`2006, from acute drug toxicity as a result of Dr. Michael Vogini repeatedly engagingin acts that
`
`fell below the standard of care for a physician prescribing medication in Pennsylvania. Ms.
`
`Seibert is survived by her son, Bernard J. Switalski, and by her mother, Eileen Redshaw.
`
`Decedent maintained a close family relationship prior to her passing.
`Dr. Vogini had been Ms. Switalski’s PCP for approximately the last twenty-five (25)
`
`yearsofherlife. However, the available medical records begin in 2004. Dr. Vogini’s notes
`
`indicate that he had treated Ms. Switalski for various conditions andalso fora fall that occurred
`
`in 2004 and resulted in chronic neck pain and low back pain. Multiple evaluationsfailed to
`
`reveal a source for her ongoing symptomology, and she was diagnosed with fibromyalgia.
`
`Ms. Switalski continued to have monthlyoffice visits with Dr. Vogini throughout 2005,
`
`and up until her death on May 2, 2006. The records indicate that multiple prescriptions were
`
`written following those appointments. Ms. Switalski’s last office visit with Dr. Vogini occurred
`
`on April 28, 2006. She reported being depressed and complainedofdiffuse pain and nausea at
`
`that time. Dr. Vogini, in turn, wrote her prescriptions for Compazine, Risperdal, Soma, Xanax,
`
`Buspirone, Lomotil, Diflucan, Tagamet, Topamax, Hycodansyrup and Dilaudid. Ms. Switalski
`
`

`

`filled prescriptions for 60 Dilaudid 8-mgtablets and an additional 120 ml of Hycodan syrup on
`
`May1, 2006. She was found dead in her homethe following day.
`
`The medical examiner determined the mannerof death to be accidental and the cause to
`
`be “acute combined drugtoxicity of: Phentermine, Diphenhydramine, Dextromethorphan,
`
`Carisoprodol, Meprobamate, Prochlorperazine, Ropiramate, Alprazolam, Diazepam,
`
`Hydrocodone and Hydromorphone.” All of the prescriptions bottles found at Ms. Switalski’s
`
`home hadbeen prescribed by Dr. Vogini.
`
`The Pennsylvania Attorney General’s office brought charges against Dr. Vogini due, in
`
`part, to his causing Ms. Switalski’s death. An investigation was conducted and Dr. Vogini was
`
`indicted on sixteen (16) counts. Dr. Vogini ultimately entered a plea of Nolo Contendere to the
`
`Count of Drug Delivery Resulting in Death and pleaded guilty to fifteen (15) Countsalleging
`
`violations of the Controlled Substance, Drug, Device and Cosmetic Act. Dr. Vogini is currently
`
`serving a term of six-to-twelve (6-12) years in a PennsylvaniaState prison.
`
`In the course of the AG office’s investigation, evidence was uncovered that Dr. Vogini
`
`had been engaging in the practice of exchanging prescription medications for sexual favors with
`
`several female patients and former patients that had developed a dependency. Sheila Sageris
`
`one of those individuals. Bernadette Dwyertestified that in late 2005, she becamefriends with
`
`Sheila Sager, a licensed practical nurse (LPN) who wasinvolved in a sexualrelationship with
`
`Dr. Vogini. Eventually, Sager moved into Dwyer’s homein early 2006. Dr. Vogini came to
`
`Dwyer’s hometo see Sager in late January 2006. Dwyer was aware that Sager was having a
`
`sexual relationship with Dr. Vogini and knew that he was comingto the hometo have sex with
`
`Sager. Dwyertestified that Dr. Vogini proceeded to visit their house and have sex with Sagerin
`
`

`

`exchange for prescription medications. Sagartestified that she continued to receive prescriptions
`
`despite the belief that she had developed a dependence to them.
`
`In addition to revealing proof that Dr. Vogini had been engagingin the entirely improper
`
`practice of exchanging sexual favors for prescription medications with numerous women,the
`
`investigation also uncovered evidence that Dr. Vogini was attempting to coverup hisillicit
`
`behavior by writing prescriptions in the namesof individuals that were not receiving the drugs.
`
`For example, prescriptions were written in the nameofplaintiff, Bernard Switalski, but the drugs
`
`were then supplied to Ms. Switalski.
`
`Plaintiff initiated this action following Ms. Switalski’s death. On or about, May 15,
`
`2013, a notice of intentionto file a Praecipe to Enter Default Judgment was served on defendant.
`
`On June 7, 2013, as a result of defendant’s failure to file a responsive pleading,plaintiff filed the
`
`Praecipe to Enter Default Judgment.
`
`Dr. Vogini’s actions violated numeroustreatment principles accepted by any reasonable
`
`segmentof the medical profession. Plaintiff's is seeking compensatory damagesfor the loss of
`
`all those damagesrecoverable by beneficiary under the MCARE Actincludingthe loss of
`
`services, assistance, companionship, protection, love and affection, solace, comfort, society,
`
`guidance and the anguish and emotional loss. Plaintiff is also seeking punitive damages as a
`
`result of defendant’s outrageous behavior.
`
`Il.
`
`‘SPECIAL DAMAGES
`
`There are no special damages whichplaintiff will display.
`
`

`

`Il. WITNESSES
`
`Plaintiff may call any of the following witnesses:
`
`A,
`
`Asto liability:
`
`Bernard J. Switalski, III, plaintiff
`
`Kimberly Moroney
`
`Brenda Steele
`
`David Diethorn
`
`Eileen Redshaw
`
`Sheila Sager
`
`Bernadette Dwyer
`
`Daria Dillon
`
`Cheryl Vizzo
`
`Stephen M. Thomas, M.D
`
`B.
`
`Asto damages:
`
`Bernard J. Switalski, III, plaintiff
`
`Kimberly Moroney
`
`BrendaSteele
`
`David Diethorn
`
`Eileen Redshaw
`
`IV.
`
`EXPERT REPORTS
`
`The reports of the following expert witnesses are attached:
`
`

`

`1)
`
`2)
`
`Stephen M. Thomas, M.D. dated March 10, 2014.
`
`Stephen M. Thomas, M.D.dated May 7, 2010, to be submitted by supplement.
`
`V.
`
`EXHIBITS
`
`1)
`
`2)
`
`3)
`
`4)
`
`5)
`
`6)
`
`7)
`
`8)
`
`Decedent’s Death Certificate;
`
`Autopsy Report;
`
`Toxicology Report;
`
`Affidavit of Probable Cause;
`
`Indictment;
`
`Plea Bargain;
`
`Record of conviction
`
`Photos of decedent and her family.
`
`VI.
`
`VOIR DIRE STATEMENT
`
`Beverly Switalski died from an overdose of pain medications on May2, 2006. Each of
`
`the eleven drugs that were in her system and that caused her death wasprescribed by her PCP,
`
`Dr. Vogini. Beverly had been a patient of Dr. Vogini’s for approximately 25 years and she had
`
`been treating for chronic neck and low back pain as a result ofa fall that occurred in 2004,in
`
`addition to other commonailments. Dr. Vogini regularly overprescribed Ms. Switalski
`
`numerous pain medications and she developed a dependenceto them.
`
`Once she had become dependenton the prescription medications Dr. Switalski had been
`
`prescribing, he took advantage of her and began writing prescriptions in exchange for sexual
`
`

`

`favors. A criminal investigation that was later conducted revealed evidence that Dr. Vogini had
`
`been a history of engagingin similar conduct with multiple current and former female patients.
`
`VII.
`
`PROPOSED ADDITIONAL VOIR DIRE
`
`l.
`
`Do you have an opinion regarding whetheran individualthat is serving a criminal
`
`conviction should also be held financially responsible for their conduct?
`
`2.
`
`The evidence will show that Ms. Switalski died from a proven over prescription
`
`of pain medications by her doctor. Would you hesitate to award money damagesfor her death
`
`simply because she developed a dependence on those pain medications?
`
`Plaintiff reserves the right to supplementthis Pre-Trial Statements per the Rules of Civil
`
`Procedure.
`
`Respectfully submitted,
`
`LAW OFFICES OF JOHN A. CAPUTO
`
`BY
`
`s
`
`Johy A. Caput
`Christopher S. Hallock
`Attorneys for Plaintiff
`
`

`

`Osh poe 40L Ade dS hess
`
`1 ave
`
`t AML
`
`earhuw
`
`In Hoang
`
`Pain & Disability Management Consultants, P.C.
`oes
`105 Braunlich Dr. (McKnight Plaza)
`Suite 410
`Pittsburgh, PA 15237
`
`Telephone: 412-635-2920
`Facsimlle: 412-635-9677
`
`March 10, 2014
`
`Law Offices of John A. Caputo
`100 Ross Street, Suite 104
`Pittsburgh, PA 15219
`
`Attention: Christopher S. Hallock, Esquire
`
`RE:
`
` Switalski v. Vogini
`
`Dear Mr. Hallock:
`
`| received you request for a narrative report regarding Dr. Michael Vogini’s treatment of Ms.
`Beverly Switalski.
`| previously reviewed medical record compiled by Dr. Vogini regarding his
`treatment of Ms. Switalski, as well as the Allegheny County Medical Examiner Death Investigation
`Case Report, Certificate of Death, Autopsy Report and Forensic Lab Reports regarding Beverly
`Switalski's death. | authored a report, dated May 7, 2010, regarding Dr. Vogini’s treatment of Ms.
`Switalski and ofhers, including his role in Ms. Switalski’s death.
`
`History:
`
`Ms, Beverly Switalski was a 47-year-old woman, whotreated with Dr. Voginifor a variety of
`complaints over the last 25 years of herlife. The available medical record began in 2004 with
`letters from Dr. Vogini to Ms. Switalski’s attorney regarding a possible pesticide exposure. Dr.
`Vogini alleged that in addition to her prior problemsof anxiety, depression and asthmatic
`bronchitis, she had developed irritable bowel syndrome. She also reportedly sustained a fall which
`resulted in chronic neck pain and low back pain. Multiple evaluations, including cervical and lumbar
`MRIstudies,failed to reveal a source for her ongoing pain complaints. The diagnosis of
`fibromyalgia was appended to herdiffuse, nonlocalized pain complaints,
`
`Dr. Vogini prescribed a wide variety of medications for Ms. Switalski, These included controlled and
`non-controlled substances. Mostof the drugs that Dr. Vogini prescribed were psychoactive agents;
`that is to say that the site of action was in the central nervous system. The medical record reflected
`that Ms. Switalski was prone to falls which tended to precede exacerbation of her pain complainis.
`Throughout 2005 Ms. Switalski had monthly office visits with Dr. Vogini at which he documented
`
`

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`March 10, 2014
`
`minimal physical examinations and wrote multiple prescriptions. There was no evidencein the
`medical records reviewed that the prescribed drugs were beneficial in relieving the patient's
`plethora of complaints. She wasreferred to the St. Margaret's Pain Clinic where she was seenin
`evaluation on March 18, 2005. The evaluation confirmed the diagnosisoffibromyalgia and
`suggested that she may be experiencing “analgesic rebound headaches.”It was notable thatthe
`amounts of analgesic medications that she was receiving from Dr. Vogini were markedly
`understated in her contacts with other physicians.
`
`in the calendar year 2006, Ms. Switalski saw Dr. Voginiin his office approximately monthly prior to
`her death on May 2, 2006. She complained of headaches, nausea,low back pain and depression.
`OnApril 25, 2006 Dr. Vogini wrote prescriptions for Vicodin ES, Hydrocodoneelixir and Risperdal.
`Ms. Switalski’s last office visit with Dr. Vogini occurred on April 28, 2006. She was reportedly
`depressed and complaining ofdiffuse pain and nausea. He wrote her prescriptions for Compazine,
`Risperdal, Soma, Xanax, Buspirone, Lomotil, Diflucan, Tagamet, Topomax, Hycodan syrup and
`Dilaudid. Ms. Switalski filled prescriptions for 60 Dilaudid (Hydromorphone) 8-mg tablets and an
`additional 120 mL Hycodan syrup on May 1, 2006. On May 2, 2006 Ms. Switalski was found dead
`in her home. The Medical Examiner determined the cause of death was “acute combined drug
`toxicity of: Phenteramine, Diphenhydramine, Dextromethorphan, Carisoprodol, Meprobamate,
`Prochlorperazine, Topiramate, Alprazolam, Diazepam, Hydrocodone and Hydromorphone.” The
`report of the investigation noted thatall of the prescnption bottles at Ms. Switalski’s home were
`prescribed by Dr. Vogini. Most noteworthy were the numbers ofpills remaining from her
`Hydromorphoneprescription (38/60), Carisoprodol (38/90), Buspirone (44.33/90) and Alprazolam
`(41.5/90). Both the rate at which she was using her medications and the numberofdifferent
`medications prescribed by Dr. Vogini represented contributing factors in her death.
`
`Bernard Switaiski was the son of Beverly Switalski. Review of his medical record was telling in the
`evaluation of the treatment received by Ms. Beverly Switalski. Mr. Switalski’s records contained a
`childhood vaccination record, an office visit at the age of 12 years, a driver's physical examination
`at the age of 16 years, an episode of wart removal at age 17 years. He presented to Dr. Vogini
`complaining of headache again in 2002. A laceration of the right middle finger was treated with in
`2003. The patient sustained a work injury in which he suffered a nasalfracture and saw Dr, Vogini
`in follow-up on two occasions. A sinus headache prompteda visit. These patient contacts would
`legitimize the prescriptions whose copies were contained in the patient chart. The pharmacylogs,
`however, contain numerous prescriptions for controlled substances written in the name of Bernard
`Switalski by Dr. Vogini. These include prescriptions for Percocet, Hydrocodone, Codeine,
`Diazepam and Alprazolam. There is no evidence that Mr. Switalski ever received any of these
`drugs. Given the established practice by which Dr. Vogini wrote for prescriptions in the names of
`others,it is not presumptive to believe that another person was the recipient of these controlled
`substances. On May 1, 2006, Bemard Switalski’s chart contains an annotation of a phonecall from
`Beverly Switalski asking that Dr. Vogini call a prescription in for Bemard for Vicodin as the “Dr. said
`he would do it when she was at ofc (sic) earlier.” This clearly shows the interaction that generated
`the prescription request was that between Dr. Vogini and Ms. Switalski. Therefore, at least on the
`date immediately before her death, Ms. Switalski was obtaining a controlled substance prescription
`from Dr. Vogini in the name of Mr. Berard Switalski. There is every reason to believe thatthis
`represents the continuation of a behaviorthat had been going on for several years.
`
`

`

`Wor LO 40L4 atu.
`
`SLL090NI0r7¢
`
`rer
`
`reac U4 OO
`
`RE: Switalski v. Vagini
`
`Page 3
`
`Mareh 10, 2014
`
`Daria Dilton was anotherpatient of Dr. Vogini whose “care” impacts upon the analysis of the
`“treatment” of Beverly Switalski. The information available shows that Ms, Dillon and Ms. Switalski
`wereclose friends. They occasionally hadlived in the same dwelling and there has been evidence
`that they were both involved with Dr. Vogini outside of the doctor-patientrelationship. The most
`importantinformation in that regard is in the potential source of the Phentermine found in Beverly
`Switalski's system at the time of her death. Ms. Dillon was according to the medical recordsa slight
`woman weighing 130-140 pounds. The prescription logs show that Dr. Vogini began prescribing
`Phentermine for Ms. Dillon in March 2003. This is a drug thatis indicated for short-ferm treatment
`for weight loss, clearly not the indication in Ms.Dillon. Phentermine and other Amphetamine-like
`drug may be usedin the treatment of narcolepsy or some psychiatric disorders, usually by
`specialist physicians.
`In Ms. Dillon's case Dr. Vogini prescribed the drug for three years before he
`noted the diagnosis of narcolepsyin the medical record. In my opinion, this represents
`documentation after the fact. Thatis to say that Dr. Vogini placed this diagnosis in the record in an
`attemptto justify this unjustifiable prescription of the controlled substance. Thus while the drug
`Phentermine was neverprescribed to Beverly Switalski,its prescription to Daria Dillon represented
`the means by which Ms. Switalski obtained one of the drugs that was found in her body and was
`contributory to her death.
`
`Conclusions:
`
`Dr. Vogini's prescribing behavior was inappropriate. {tis a matter-of-fact that Ms. Switalski woufd
`have nat had accessto the types and quantities of drugs that she took leading to her demise
`without the direct action of Dr. Vogini. Dr. Vogini prescribed controlled substancesfor Ms. Switalski
`in a mannerthat was not in accordance with treatment principles accepted by any responsible
`segmentof the medical profession. Specifically, the chronic use of Hydrocodoneelixir, the
`combination of multiple short-acting opioid analgesics (Hydrocodone, Oxycodone and
`Hydromorphone) and the concurrentprescription of multiple central nervous system depressant
`drugs in the setting where no clear therapeutic benefit was ever established are indicative of the
`abandonmentof such treatmentprinciples.
`
`When askedto sign Ms. Switalski’s death certificate, Dr. Vogini respondedthat he thought the
`patient may have been suicidal and he was thus uncomfortable signing the death certificate. This
`response revealed something of his state of mind.if Dr. Vogini thought Ms. Switalski was
`potentially suicidal, he gave noinkling ofit in his prescribing behavior. Indeed, the number and type
`of drugs that were prescribed was well in excess of what would have been necessary for her to
`have committed suicide. His prescribing behavior showed that he had little concern aboutthe
`possibility of suicidal ideation prior to her death.
`
`The findings at the autopsy of Beverly Switalski are reflective of the mannerin which she died. The
`finding of a hostof controlled substances and other medications in her bodyat the time of her
`death is explicatory of the Coroner's determination of "acute combined drug toxicity.” The clinical
`understanding of how Ms. Switalski addictively used these medications, as well as the clinical
`toxicities of the drugs, is necessary in grappling with the overall mechanism of her death. Of the
`plethora of drugs that were present in Ms. Switalski's system at the time of her death only
`Phenteramine wasat a ‘toxic” level. Several aspects of this measurement must be noted.First, all
`‘toxic levels” are determined individually. Thatis to say that the serum level of any drug is deemed
`
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`toxicbyitself,notinthepresenceofsnotherdrugs.Second,thewayinwhichaddictsuse
`
`present.
`
`|
`
`drugsis in an attemptto “balance” the high, resulting in even greatertoxicity. Thatis to say that a
`depressant drug (or seven)is attempted to be counteracted by a stimulant drug,like Phenteramine.
`This results in rising blood levels of the stimulant at the peak level of the depressants;rising blood
`levels of a drug produces greaterfoxicity/than a stable drug level. Third, there is no means by
`which anyone could predict the totality ofthe complex drug-patient and drug-drug interactions that
`were occurring in Beverly Switalski at the
`time of her death. The number of combinations and
`permutations is staggering. What was known, what is known and what should have been
`accounted for was the level ofdanger into which the patient was plunged bythe prescription
`pattem that knowingly exposed her fo these combinations and permutations of drug-patient and
`drug-drug interactions. Furthermore, while the blood levelof Hydromorphone was “within the
`therapeuticrange,” it was quite high especial in lightoftheotherdepressantand stimulantdrugs
`BeverlySwitalski died as the resultofsoba nervoussystem depression in the presenceofadrug
`
`that waslikely to produce a cardiac arrhythmiain toxic doses. Whena patientis "narcotized,” as
`Beverly Switalski, one of the primary effetts is to slow the rate of respiration, resulting in a rise in
`the arterial carbon dioxide. This rise in
`carbon dioxide is assured and the effectis to sensifize the
`heart to arrhythmia. The depressionof respiration also leads to a fall in the amount of oxygen in the
`blood further pushing the patient toward death. Wheninto this milieu one introducesa toxic level of
`Phentermine, which producestoxicity thrbugh cardiac arrhythmia,the die was cast. Anhythmia
`ensued and the patient died rapidly, unable to breathe, her lungs rapidly filled with fluid as she
`occasionally gasped against a closed airway.
`The allegation that Dr. Vogini was also having sex with Ms. Switalski arose during the course of the
`investigation. In the Affidavit of Probable Cause, Ms. Nora Redshaw, the motherof Beverly
`Switalski, confirmed that Ms. Switalski had
`been sexually involved with Dr. Vogini. This had been
`told to her by her daughter and by Ms. Sheila Sager, a former employee and sexualliaison of Dr.
`Vogini. Ms. Redshaw also informed the investigators that she had beentold by Ms. Sagerthat
`
`Sagerhad alsobeen sexuallyinvolved vt Dr. Vogini inexchangefortheprescriptionofcontrolled
`
`substances. The introduction of sexual favors into the doctor-patient relationship necessarily voids
`that relationship and places any actions gutside of the good faith course of Dr. Vagini’s
`professional practice.
`
`In summary, Dr. Michael Vogini repeatedly engaged in acts whichfell below the standard overdose
`care for a physician in the Commonwealth of Pennsylvania. His prescription of controlled
`substances to Beverly Switalski wasin viblation of the Controlled Substances and Device Act,
`governing the behavior of physicians pratticing in the Commonwealth. In prescribing medications
`for Beverly Switalski, Dr. Voginifailed to &ctin good faith in the course of his professional practice,
`acted outside of the scopeofthe doctor/datient relationship andfailed to act in accordance with
`treatmentprinciples accepted by any responsible segmentof the medical profession. His actions
`were in direct opposition to Ms. Switalski's best medicalinterests, taking advantage ofhis
`privileged position as a physician. His
`actions were the proximate cause of Ms. Switalski's death
`on May 2, 2006.
`
`

`

`63/1G/2614
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`RE: Switalski v. Vogini
`
`Page §
`
`March 10, 2014
`
`If
`The opinionsstatedin this report are stated within a reasonable degree of medical certainty.
`there are any questions concerning the contents of this report, please feel free to contact me at my
`office.
`
`Truly yours,
`
` tephen M. Thomas, M.D.
`
`Diplomate, American Board of Anesthesiology
`Certification in the Subspecialty of Pain Medicine
`Diplomate, American Board of Pain Medicine
`Fellow ofInterventional Pain Practice, WIP
`CompetencyCertification in ControlledSubstance Management, ABIPP
`
`Competency Certification in Coding Compliance and Practice Management, ABIPP
`
`|
`
`

`

`CERTIFICATE OF SERVICE
`
`I, the undersigned, do herebycertify that a true and correct copy of the within Plaintiff's
`Pre-Trial Statement wassent via first class mail on the [ 7
`day of March, 2014 to the
`
`following individual:
`
`Michael J. Vogini, D.O.
`Inmate #KJ-6513
`SCI — Mercer
`81 Butler Pike
`Mercer, PA 16137
`
`LAW OFFICES OF JOHN A. CAPUTO
`
`
`
`Attorneyfor Plaintiff
`
`