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Parham v. Johnson

September 17, 1997

PAUL LAMONT PARHAM, APPELLANT

v.

MARSHALL JOHNSON, JR., MEDICAL DOCTOR; CHARLES J. KOZAKIEQICZ; TOM FORESTER, COMMISSIONER; JOSEPH MAZURKIEWICZ, PH.D.



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 90-cv-00726)

Before: COWEN, MCKEE, and JONES, *fn* Circuit Judges.

JONES, Circuit Judge.

Filed September 17, 1997

Argued: February 14, 1997

OPINION OF THE COURT

Paul Lamont Parham ("Parham") filed suit against his prison physician, Dr. Marshall Johnson ("Dr. Johnson"), claiming that Dr. Johnson was deliberately indifferent to his medical needs. The magistrate judge found that Parham's claim may have merit and ordered that counsel be appointed for Parham pursuant to 28 U.S.C. Section(s) 1915. This order was never adhered to. Two years later, Parham, still without counsel, petitioned the district court to appoint him an attorney. The district court acknowledged that Parham's claim had merit, but denied his request. Parham was then forced to try his claim pro se. The district court directed a verdict for Dr. Johnson because Parham failed to present an expert witness. Parham then filed a timely appeal and petitioned this court to appoint him counsel. This court granted his motion for counsel. *fn1

Upon review, we find that the magistrate judge's order should have been complied with and Parham should have had counsel below. Accordingly, we reverse and remand.

I.

On November 15, 1989, Parham experienced a high-pitched ringing noise in his left ear. Parham expressed this concern to Dr. Johnson and told him that it may be an actual ringing noise in the prison, but he was unsure. Dr. Johnson diagnosed Parham's condition as tinnitus. Tinnitus is a "subjective noise sensation heard in one or both ears." Mosby's Medical Dictionary 1559 (Kenneth N. Anderson ed., 4th ed. 1993). This condition is generally not diagnosed without a comprehensive diagnosis, Linda M. Luxon, Tinnitus: Its Causes, Diagnosis, and Treatment, 306 British Med. J. 1490 (1993); yet, Dr. Johnson diagnosed it after a simple exam.

To treat the tinnitus, Dr. Johnson prescribed Cortisporin ear drops. Cortisporin is an antibiotic solution for the treatment of "superficial bacterial infections of the external auditory canal . . . ." Physicians' Desk Reference ("PDR") 768 (43rd ed. 1989). *fn2 The warnings in the PDR indicate that Cortisporin "should be used with care when the integrity of the tympanic membrane is in question because of the possibility of ototoxicity . . . [and because] [s]tinging and burning have been reported when this drug has gained access to the middle ear." Id. Moreover, the manual says nothing about using Cortisporin for tinnitus. Dr. Johnson never referred to the PDR. In fact, his testimony was in direct contrast to the warnings in the PDR; he testified that if the Cortisporin gets in the inner ear a patient probably would not experience burning and stinging, but may experience dizziness.

Parham returned to Dr. Johnson several times after receiving this prescription and complained of burning and stinging sensations in his ear. Dr. Johnson, however, continued to prescribe Cortisporin. The PDR states that "[t]reatment should not be continued for longer than ten days." PDR at 768 (emphasis added). *fn3 It further provides that if "sensitization or irritation occurs, medication should be discontinued promptly." Id. Dr. Johnson inexplicably continued the treatment for 114 days.

On January 10, 1990, Parham returned to Dr. Johnson because his ear was now oozing with blood and his hearing was becoming impaired. The physician assistant noticed a laceration in Parham's tympanic membrane. Parham requested that he be allowed to see an ear specialist, but Dr. Johnson declined this request and continued treating Parham with the same prescription. Even when Parham lost total hearing in his left ear in February, Dr. Johnson refused to recommend a specialist and continued along the same course.

In January and February 1990, Parham saw Dr. Johnson at least five to six times. Each time Parham requested to be allowed to see an ear specialist, and each time Dr. Johnson declined his request.

Finally, towards the end of February, Dr. Johnson allowed Parham to see an ear specialist. On March 6, 1990, an ear specialist examined Parham and confirmed that he had severe hearing loss in his left ear. The ear specialist recommended a battery of tests.

After these events, Parham decided to file suit against Dr. Johnson and various other defendants. *fn4 Parham then filed five separate motions requesting that counsel be appointed. On January 6, 1992, the magistrate judge entered an order directing the clerk of court to appoint counsel for Parham. Two years later, the clerk still had not appointed counsel.

Parham once again petitioned the district court to appoint counsel for him. The district court recognized that Parham's claim was "arguably meritorious in fact and law," but denied his request for counsel. District Court Order, June 27, 1994. The district court reasoned that since no expert testimony was involved Parham could competently try the case without the assistance of counsel. Id.

Consequently, Parham tried the case pro se to a jury. At the end of the Parham's presentation of the evidence, the district court directed a verdict for Dr. Johnson. The district court stated that a reasonable juror could not find that Dr. Johnson was deliberately indifferent to Parham's medical problem. The district court reasoned that every time Parham sought attention from Dr. Johnson, Dr. Johnson listened to his complaint and responded to it. More importantly, the district court found that Parham did not present evidence of the causal connection between his pain and suffering and Dr. Johnson's actions. The district court held that in order to present sufficient evidence to withstand a directed verdict, Parham had to present the testimony of an expert witness to show "that your [Parham's] condition was caused by the treatment that Dr. Johnson gave to you or treatment which he failed to reasonably give to you; you haven't produced that kind of evidence." ...


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