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Henderson v. Pollack

January 31, 2008

TONY HENDERSON, PLAINTIFF
v.
LAWRENCE S. POLLACK, DEFENDANT



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

The pro se plaintiff, Tony Henderson, filed this action against defendant, Lawrence S. Pollack, D.O., alleging that Dr. Pollack intentionally mistreated him for a work-related injury, thereby causing injury to his back. Dr. Pollack was treating Plaintiff as his doctor under the Pennsylvania Workers' Compensation Act. Plaintiff invokes 42 U.S.C. § 1983 in his complaint and seeks compensatory and punitive damages.

We are considering two motions to dismiss filed by Defendant under Fed. R. Civ. P. 12(b)(6).*fn1 Defendant presents three arguments. First, Plaintiff has no civil-rights claims because section 1983 requires action under color of state law, and Dr. Pollack is not a state actor. Second, all claims, whether state or federal, are barred by the applicable statutes of limitations. Third, any state-law claims for medical malpractice must be dismissed for failure to comply with the Pennsylvania rule requiring a certificate of merit be filed to support any professional liability claims.

II. Standard of Review

In considering a motion to dismiss, we must accept as true the factual allegations in the complaint, In re Exxon Mobil Corp. Sec. Litig., 500 F.3d 189, 190 n.1 (3d Cir. 2007), and construe any inferences to be drawn from the allegations in the plaintiff's favor. Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). The court is not limited to evaluating the complaint alone; it can also consider documents attached to the complaint, other documents that are indisputably authentic, and matters of public record. Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006).

III. Background

Plaintiff's complaint alleges the following. On November 3, 2004, he was injured when a table with 600 pounds of sheet metal flipped onto him at work. (Doc. 1, Compl., p. 2.) He was sent to the Industrial Resource Center for evaluation. The center's assessment sheet, dated November 3, 2004, indicates he suffered a left shoulder injury and that Plaintiff reported he "felt a pulling" in the left shoulder "which progressively worsened." (Doc. 1, Ex. A1.) The sheet also indicated he felt a "burning pain, rad's to L neck" and that Plaintiff could not raise his left arm above 45 degrees.

The center conducted a follow-up exam on November 10, 2004. According to the assessment sheet, Plaintiff complained of "left shoulder stiffness & pain radiating to upper and lower back areas." (Id., Ex. A2.)

Plaintiff was referred to Memorial Hospital in York, Pennsylvania, and Dr. Pollack, who has a "place of business" on Fifth Avenue in York, saw him on November 11, 2004. (Id., pp. 1-2.) Plaintiff told Dr. Pollack he was experiencing "severe pain in his neck and lower back and a numbness in the right arm" and alleged that Dr. Pollack told him that it did not "matter what you feel in your neck and lower back." (Id.). Defendant also allegedly stated that "[you] don't understand how Worker Compensation Insurance works and I am only going to see you for your shoulder injury." (Id.) According to Plaintiff, even after he told Dr. Pollack that he did not have a shoulder injury and that he could not raise his arms because of the pain in his upper back, Defendant "still refus[ed] to diagnose the cause of the pain and injury, "[s]tating that Plaintiff did not understand the rules that doctors have to follow when it came to Worker Compensation." (Id.) Instead, Defendant ordered an MRI arthrogram of the left shoulder, which was taken on November 17, 2004. It revealed no rotator cuff tear. (Doc. 1, Ex. A3.)

On November 30, 2004, Plaintiff met with Dr. Pollack and told him and a nurse that his pain had worsened, that it was becoming harder to walk and raise his arms, and that he was experiencing numbness in his right leg. (Compl., p. 2.) Plaintiff alleges that Dr. Pollack said "it could just be in your head" and he "refuse[ed] to diagnose the injury." (Id.)

On December 9, 2004, Plaintiff met with Dr. Pollack for the third time and alleges that a nurse (who was also his case coordinator, apparently for workers' compensation) told him that Dr. Pollack thought Plaintiff was not truthful about his pain. (Id.) Again, Plaintiff told Dr. Pollack that his pain was increasing and that it felt like it was coming from his upper and lower back. (Id.) Defendant prescribed medication for the pain and "order[ed]" Plaintiff to continue working. (Id.)

On December 30, 2004, Plaintiff saw Dr. Pollack and expressed the same complaints, but Defendant told him that "he could not change doctors until he was seen by Defendant for 90 days." (Id.) Defendant prescribed a different pain medication and instructed Plaintiff to enter a work-hardening program. (Id.) Plaintiff began the program on January 1, 2004, and the staff told him that Dr. Pollack informed them that his injury was to the left shoulder, even though the MRI had shown otherwise. (Id.) According to Plaintiff, he attended five out of the nine sessions in the program but could not complete it because it was too painful. (Id., p. 3.)

Plaintiff's final visit with Dr. Pollack took place on January 20, 2005. (Id.) Dr. Pollack allegedly informed him that "he was inconsistent with complaints." (Id.) ...


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