APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-1863)
Before Rosenn, Garth and Sloviter, Circuit Judges.
Jimmy Lee Hamilton, the appellant, suffers from a recurrent growth on his penis known as an intraurethral condyloma acuminatum of Buschke and Lowenstein. Such condylomas resemble in appearance large warts. He first developed this growth while serving in the Marines. It reappeared shortly before he was incarcerated in the Pennsylvania State Correctional Institution at Graterford. The military doctors were rather more attentive to his problem than those at Graterford. Indeed, in the two months he spent at Graterford, Hamilton's repeated requests for treatment resulted only in Excedrin being provided, when it is acknowledged that the proper treatment is prompt surgical excision. Thus, Hamilton brought suit charging that his lack of treatment constituted cruel and unusual punishment in violation of the Eighth Amendment. To this claim he added a state claim of medical malpractice.
At the completion of the presentation of evidence to the jury, the district court directed a verdict on the Eighth Amendment claim in favor of Dr. Edmund Gaffney, Medical Director at Graterford, who was the sole remaining defendant at the time of trial. Hamilton appeals this ruling. The malpractice claim was submitted to the jury, which returned a verdict in Hamilton's favor of $2,500. Dr. Gaffney cross-appeals from this verdict. The doctor claims that under Pennsylvania's Health Care Services Malpractice Act, 40 Pa.Stat.Ann. § 1301.101 to § 1301.1006 (Supp.1979), and this court's recent decision in Edelson v. Soricelli, 610 F.2d 131 (3d Cir. 1979), the district court was without subject matter jurisdiction to entertain the malpractice claim, since that claim had not first been submitted to a Pennsylvania malpractice arbitration panel. Submission of malpractice claims to arbitration panels, prior to such claims being asserted in any court action, is required by the Health Care Services Malpractice Act. See 40 Pa.Stat.Ann. § 1301.309. This court held in Edelson that the Pennsylvania arbitration requirement for malpractice claims was binding on the federal courts in the exercise of their diversity jurisdiction, under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 66, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
We hold that the district court did not err in directing a verdict in favor of Dr. Gaffney on Hamilton's Eighth Amendment claim. We agree, however, with Dr. Gaffney on his cross-appeal that the district court had no jurisdiction to hear Hamilton's pendent malpractice claim.
Jimmy Lee Hamilton was convicted of criminal charges in the Pennsylvania state courts and was confined in the Montgomery County Prison on May 20, 1975. The condyloma about which the instant controversy revolves began to develop shortly before Hamilton was sent to Montgomery, but he sought no treatment for it before his incarceration. On January 12, 1976, Hamilton was transferred from Montgomery to the Pennsylvania State Correctional Institution at Graterford. Shortly after his transfer, on January 15, 1976, Hamilton was examined for the first time by Dr. Gaffney. Dr. Gaffney examined the condyloma, and told Hamilton that he would order a consultation by an outside urologist. In accordance with prison procedures, Dr. Gaffney then ordered this consultation. He did so by filing an order for urological consultation with the prison's medical administrator. Unfortunately, this consultation never took place.
Over the course of the next two months, Hamilton complained regularly about his problem and the absence of treatment to staff doctors and other prison personnel. His complaints went unanswered. Hamilton, however, made none of these complaints to Dr. Gaffney. Hamilton did see Dr. Gaffney a second time, shortly before Hamilton was transferred from Graterford to the Pennsylvania State Correctional Institution at Dallas on March 8, 1976. At this time, Hamilton complained that he had never had the consultation that Dr. Gaffney had ordered. Surprised at learning that no consultation had taken place, Dr. Gaffney went directly to the chief medical administrator of the prison and issued an oral direction for the consultation. Hamilton was transferred out of Graterford, however, before the consultation could take place. A few weeks after Hamilton's transfer to Dallas, he was examined by a urologist. The condyloma was surgically removed four days later.
Hamilton brought suit against various officials of the Montgomery County Prison System, the State Correctional Institution at Graterford, and the State Correctional Institution at Dallas. He presented two claims: that the failure to provide prompt medical treatment constituted cruel and unusual punishment in violation of the Eighth Amendment; and, that this same failure constituted medical malpractice. This latter claim invoked the court's pendent jurisdiction.
A settlement was reached with the Montgomery County officials and they were dismissed from the suit. Hamilton then consented to the dismissal of all the remaining Graterford and Dallas defendants, with the exception of Dr. Gaffney. A jury trial was held on Hamilton's contentions over the course of two days. As noted, the district court granted Dr. Gaffney's motion for a directed verdict on the Eighth Amendment claim at the close of testimony, ruling "that there is no evidence which would be sufficient to go to the jury on any violation of constitutional rights." The malpractice claim was submitted to the jury, and it returned a $2,500 verdict for Hamilton.
Cross-appeals were then filed by the parties. Hamilton challenges the directed verdict on the Eighth Amendment claim, while Dr. Gaffney challenges the submission of the malpractice claim to the jury. We address these contentions in turn, finding merit in Dr. Gaffney's cross-appeal, but no merit in Hamilton's Eighth Amendment contention.
The parties agree on the legal principles applicable to Hamilton's charge that the lack of treatment at Graterford constituted cruel and unusual punishment in violation of the Eighth Amendment. The standard is defined by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976): the Eighth Amendment proscribes only "deliberate indifference to serious medical needs." Id. at 104, 97 S. Ct. at 291. We must determine, then, whether Hamilton has adduced sufficient evidence of Dr. Gaffney's deliberate indifference to Hamilton's serious medical needs to survive a motion for a directed verdict.
A directed verdict, like a summary judgment, should not lightly be granted. Outside its proper sphere, a directed verdict results in the impermissible substitution of fact finding by the trial court for fact finding by the jury. We recently described the standard of review of a directed verdict as follows:
Because this is an appeal from a directed verdict for the defendant, we must examine the record in a light most favorable to the plaintiff, and review the specific evidence in the record and all inferences reasonably capable of being drawn therefrom. We must determine whether, as a matter of law, the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief. If the evidence is of such character that reasonable men, in the impartial exercise of their judgment may reach different conclusions, the case should be submitted to the jury. Since a directed verdict motion deprives a party of jury fact-determination, it should be granted sparingly and circumspectly. Nevertheless the federal courts do not follow the rule that a scintilla of evidence is enough. The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party.
Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978) (citations and internal quotations omitted).
Despite the rigorous review to which a directed verdict is subject on appeal, it is evident here that the district court did not err in granting Dr. Gaffney's motion for a directed verdict on Hamilton's Eight Amendment claim.
Estelle v. Gamble enunciates a two part test: the medical needs must be serious, and the defendant's response must be deliberate indifference. We do not question that Hamilton has offered sufficient evidence to permit a jury to find that his medical needs were serious, and that he could thereby survive a directed verdict as to one half of the Estelle standard.*fn1 But we cannot say the same with respect to the requirement that there be evidence of Dr. Gaffney's deliberate indifference. Hamilton's proofs are critically deficient in providing a basis on which a jury could reasonably ...