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BERMAN v. U.S.

February 28, 2002

JEFFREY BERMAN, PLAINTIFF,
V.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Nealon, District Judge.

MEMORANDUM and ORDER

The plaintiff originally filed the instant complaint pursuant to the Federal Torts Claim Act (FTCA), 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1346(b), in the United States District Court for the Eastern District of Pennsylvania on June 10, 1996. (Doc. 1, Eastern District of Pennsylvania). By Order dated September 11, 1996, the Eastern District approved a stipulation by plaintiffs counsel and the United States Attorney's Office that the action be transferred to the Middle District of Pennsylvania under 28 U.S.C. § 1404(a) and (b). (Doc. 7, Eastern District of Pennsylvania). In his complaint, plaintiff seeks to recover damages against the defendant for failure to render timely, adequate and proper medical treatment.

The parties submitted pretrial memorandums on July 27, 2000 (Docs. 46 & 47), followed by a joint statement of undisputed facts on August 7, 2000 (Doc. 58). Trial commenced before the undersigned on August 8, 2000, and concluded on August 23, 2000. During the course of trial, the court heard live testimony from the following witnesses: Jeffrey Berman, Judith Berman, David Leidig, Dr. John Barry, Dr. Anthony Colletta, and Dr. Larry Sollenberger. In addition to live testimony, the court received deposition testimony from Dr. Vladimir Petorak, Dr. Arthur Keiper, Dr. Nayeem Akhtar, Dr. Daniel Romero, Dr. Thomas Colley, Dr. Anthony Cubb, Dr. Charles Wilson, Dr. Patrick Trinkle, Dr. Robert Jacobsen, David Combs, Richard Haas, Pamela Hemphill, Roland Williams, and Diane Flahart. Subsequently, the parties submitted separate findings of fact and conclusions of law, as well as responses thereto. (Docs.84-88). For the reasons which follow, the plaintiff will be awarded damages in the amount of $178,294.

Legal Standard

The FTCA allows federal prisoners to pursue suits against the United States in an effort to recover for personal injuries sustained during confinement by reason of negligence of government employees. United States v. Muniz, 374 U.S. 150, 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); 28 U.S.C. § 1346(b). The primary purpose of the FTCA is to "remove sovereign immunity of the United States from suits in tort, and with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); 28 U.S.C. § 1346(b). Under the FTCA, "the law of the place where the alleged act or omission occurred is to be applied." Turner v. Miller, 679 F. Supp. 441, 443 (M.D.Pa. 1987); 28 U.S.C. § 1346(b). Because most of the conduct giving rise to the petitioner's claim occurred at USP-Lewisburg, Pennsylvania state law will apply.*fn1

The United States Bureau of Prisons has a duty to provide adequate medical care to a prisoner. Yosuf v. United States, 642 F. Supp. 415, 427 (M.D.Pa. 1986). In order to succeed on the present claim, plaintiff must show by competent medical evidence that the conduct of the medical personnel treating him fell below the standards of reasonable medical practice under the circumstances and proximately caused his injuries. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550, 552 (1989). A physician is liable for failure to exercise ordinary skill, care and diligence which results in injury to the patient. Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971). Furthermore, "the plaintiff generally must present an expert who will testify, to a reasonable degree of medical certainty, that the acts of the defendants deviated from the acceptable medical standards, and that the deviation constituted a substantial factor in causing the plaintiffs injury." McCabe v. Prison Health Services, 117 F. Supp.2d 443, 456 (E.D.Pa.) (citing Mitzelfelt, 584 A.2d at 892). There is only one exception to the requirement of expert witness testimony in medical malpractice claims: where the matter is "`so simple, and lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons.'" Id. (quoting Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196, 201 (1980)).

The record is not completely clear as to who had the responsibility, the physicians or the prison staff, to supply appropriate bags; to arrange for and oversee the dilatations; to schedule appointments; and to remain in communication with outside physicians. In any event, the standard of care fell below acceptable standards whether analyzed under the definition of medical malpractice or general negligence law applicable in a prison context. Moreover, the testimony of Dr. Colletta, as well as that of Dr. Petorak and Dr. Wilson, provided the expert evidence and established the causal link between the breach of duty and the injuries sustained by the plaintiff.

Factual Narrative

The following factual narrative shall constitute findings of fact in accordance with Federal Rule of Civil Procedure 52(a).

As the result of a childhood illness, plaintiff, Jeffrey Berman, had his colon, rectum, large intestine, and portions of his small intestine removed at the age of 8. (Doc. 58, ¶ 1). In order to continue to eliminate waste, the surgeons constructed an ileostomy, which is an opening in the abdomen through which the end of the remaining small intestine would be exposed. The waste would empty through the hole in the abdomen called the stoma into a small plastic bag attached to the ileostomy. The waste is caustic and, if it comes into contact with the skin, it can cause inflammation and scarring which can create a stricture, a tight circumferential scar that can inhibit the flow of the waste. To function properly, it is essential that the ileostomy remain open. This requires a process known as dilatation, which entails the insertion of a lubricated instrument of graduated circumference, known as a dialator, into the ileostomy. Dilatation is not normally recommended in the absence of stricture. (Colletta Tr. at p. 21). The plaintiff, however, was directed by his doctors to dilatate due to his young age when his ileostomy was created. It was believed that regular dilatations would forestall any tendency to stricture based on his growth. (Doc. 86, p. 3, § 7) (Coletta Tr. at 18). The defendant does not challenge the plaintiffs representation that he faithfully followed the prescribed treatment and care for his condition prior to his incarceration.

Berman was incarcerated on May 7, 1990, following a conviction in the United States District Court for the Eastern District of Pennsylvania. He eventually arrived at FPC Lewisburg on September 8, 1993. While incarcerated prior to September of 1993, the plaintiff was allowed to follow his pre-incarceration care, which included self dilatations at regular intervals, the use of sufficient numbers of properly sized closed end bags (7-10 per day)*fn2, and salves and ointments for skin care. Nevertheless, plaintiff experienced some problems with his condition prior to Lewisburg, viz., July 3, 1990 — frequent episodes of stomal bleeding and irritation (Defendant Exhibit 5); December 27, 1990 — little bleeding from ileum (Defendant Exhibit 10); September 25, 1991 — ileostomy dysfunction/obstruction (Defendant Exhibits 11 & 12); and April 17, 1992 — pain, stomal irritation, and ileostomy dysfunction/obstruction (Defendant Exhibit 15).

All of the care products needed by the plaintiff were sent to Lewisburg from the prior institution. Except for the problems hereinbefore described, when the plaintiff arrived at Lewisburg on September 8, 1993, his ileostomy was relatively healthy. It deteriorated significantly while at Lewisburg and Fort Worth. The cause of this deterioration would have to be: (a) a natural consequence of his condition; (b) failure by plaintiff to take care of himself or take advantage of available treatment; (c) failure of prison officials to provide reasonable care; (d) improper treatment by outside physicians; or (e) all of the above in different proportions. Moreover, it must be pointed out that plaintiff was not a run-of-the-mill prison patient with the usual complaints — he had a rare condition and, thus, prison officials should have been more alert to, and concerned with, the type of treatment he required.

Lewisburg — September 8, 1993 to February 10, 1994

Berman became concerned after his arrival at Lewisburg because dilatations were not being performed. Although Berman was able to self dilatate prior to his arrival at Lewisburg, it was not permitted by Lewisburg officials out of a concern for potential liability. As a result, within two weeks of the plaintiffs arrival, Dr. Daniel Romero, staff physician at Lewisburg, referred Berman to an outside gastroenterologist, Dr. Vladimir Petorak, on September 22, 1993. (Doc. 84, p. 2, ΒΆ 7) (Defendant Exhibit 29). Dr. Petorak recommended weekly dilatations (Defendant Exhibit 29), which would take place in his office even though he informed prison officials that Berman was quite capable of performing them on his own. The first dilatation was performed by Dr. Petorak on September 24, 1993. (Doc. 84, p. 2 8). Weekly dilatations would continue to take place at Dr. Petorak's office until February 10, 1994, when Lewisburg officials, David Combs, Physician's Assistant Roland Williams, and Prison Physician Dr. Arthur Keiper, advised the ...


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