APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 69-78).
Seitz, Chief Judge, Gibbons and Garth, Circuit Judges. Garth, Circuit Judge, dissenting.
This is an appeal from a lower court monetary judgment in favor of the plaintiff in a diversity action based on negligence. The action was initiated by a pro-se complaint of a former inmate in a prison operated by the Commonwealth of Pennsylvania. The plaintiff sued the superintendent of the prison in which he was confined and two physicians associated with the prison who had treated him for an injury sustained during his imprisonment. The plaintiff alleged that the medical treatment which he received with respect to his injury was negligent and that all three defendants were responsible for this negligent care. The lower court, which heard the case without a jury, found that the defendant physicians had been negligent and were liable to the plaintiff since they were not protected by sovereign immunity. The court, however, held that the defendant superintendent, by virtue of his office and duties, was immune from suit. The defendant physicians have appealed, alleging that they, as public officers, are also immune from suit.
Since we are of the opinion that the evidence supports the lower court's finding of negligence on the part of the physicians, the essential issue on this appeal is whether they are shielded from plaintiff's suit because they are officers of the Commonwealth of Pennsylvania.
The cause of action in this case arose out of a series of events commencing around 2:00 p.m. on January 24, 1968, at Graterford prison in Montgomery County, Pennsylvania, the correctional facility in which plaintiff was confined. At that time the plaintiff, who was unloading a truck, slipped on a piece of ice in the truck bed and fell, injuring his right wrist as he attempted to break his fall. Shortly thereafter, the plaintiff reported to the prison infirmary where he was examined by the defendant Dr. Anderson, who was the prison's full-time physician. At that time, Dr. Anderson diagnosed the wrist injury as a sprain.
The following day, the plaintiff was examined by the defendant, Dr. Place, who worked for the prison on a part time basis. After the examination by Dr. Place, the plaintiff's wrist was x-rayed. Almost a week later, on January 30, 1968, the x-ray report was made revealing that the navicular bone in the plaintiff's right wrist had been fractured. Despite the medical standard prevalent in Montgomery County in 1968, which the district court found to require that a patient with a broken bone be instructed to keep the injured area immobilized and that consultation with an orthopedic specialist be provided as soon as possible, the defendant physicians failed to inform plaintiff that his wrist was broken. They also chose to comply with a prison administrative rule then in effect which required there to be fifteen inmates in need of consultation with an orthopedic specialist -- regardless of the time any number less than fifteen had to wait -- before such a specialist could be brought into the prison.
Because of the negligence of the defendant physicians, the plaintiff was not even placed on the "list of fifteen" until February 8, 1968, a full two weeks after the navicular bone in his right wrist was fractured. As a result of the defendants' negligent decision to follow an administrative rule which directly contravened the standards for practice of their profession, the plaintiff did not actually see an orthopedic specialist until April 11, 1968, two and one half months after his injury.
On April 11, the orthopedic specialist placed a cast around the plaintiff's wrist. From that time until some time in August of the same year, the plaintiff wore a cast on his wrist. Throughout the entire period, the plaintiff continued to work as a mechanic since defendants did not execute a medical work release in his behalf. Moreover, the defendants did not recommend to the warden that the plaintiff should be relieved of his duties, despite a Pennsylvania statute in effect at that time which required:
In August, when the cast was removed from his wrist, the plaintiff was informed that the two segments of the navicular bone had failed to knit. The lower court concluded that the failure to heal could be attributed to the defendants' negligence in (1) failing to see to it that the plaintiff's wrist was immobilized at an early stage, (2) failing to immediately arrange consultation between plaintiff and an orthopedic specialist, (3) failing to execute a medical release in behalf of the plaintiff so that he would not be required to perform his duties as a mechanic, and (4) failing to comply with Section 372 of Title 61, Pa. Stat. Ann. (hereinafter "Section 372"). The lower court found that as a result of the defendants' negligence, the plaintiff had suffered a substantial impairment of the use of his right hand.
The defendants contend that this is in reality a suit against the Commonwealth and is accordingly controlled by early cases which hold that the Commonwealth and its agents are shielded from suit under the doctrine of sovereign immunity.*fn1 In advancing this contention, the defendants argue that this case falls within the rule enunciated in Biello v. Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973).
Biello involved a wrongful death action against the Pennsylvania Liquor Control Board and its individual members. In that case, the Supreme Court of Pennsylvania, having concluded that the individual defendants were "nominal parties to the record" and that the suit was, in effect, a suit against an agency of the Commonwealth, held that the Board was immune from suit since it was performing a governmental function. See also Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973).
We do not believe, as the defendants contend, that the individual defendants in this case, like those in Biello, are merely "nominal parties to the record" and that the present action is in reality a suit against the Commonwealth. We think that Biello can be distinguished from the case at bar because in Biello, none of the persons sued were individually the perpetrators of the acts that allegedly were the direct cause of the personal injuries which were the gravamen of the suit in that case. The plaintiff in Biello alleged that the Commonwealth, the liquor control board, its individual members, and the manager of a retail store were ...