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