The opinion of the court was delivered by: William W. Caldwell United States District Judge
The pro se plaintiff, Darryl Booker, has filed a complaint against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, for alleged medical malpractice occurring from 1997 through 2006 while he was confined in several federal correctional institutions.
On or about September 26, 2006, Plaintiff had a heart attack while he was incarcerated at USP-Canaan, Waymart, Pennsylvania, leading a few days later to quadruple bypass surgery. He alleges that if prison medical personnel had properly diagnosed him based on the complaints he presented beginning in 1997 (among them, shortness of breath and chest pain), he would have been able to take better care of his heart and would not have suffered the heart attack.
The United States has filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), or in the alternative, a motion for summary judgment. In moving to dismiss, Defendant argues that Pennsylvania law controls this FTCA claim and that Booker has failed to comply with Pa. R. Civ. P. 1042.3(a)(1) by not filing a certificate of merit (COM). In an action putting at issue the conduct of a licensed professional, the COM in part affirms that another professional has supplied a written statement "that the care, skill or knowledge" at issue in the complaint "fell outside acceptable professional standards." In moving for summary judgment, Defendant argues that the record shows that no prison medical personnel were negligent.
We agree with Defendant that the complaint must be dismissed because Plaintiff has failed to comply with Rule 1042.3(a)(1).*fn1 However, we will grant Plaintiff thirty days to file a COM. If he fails to do so, we will dismiss the complaint. Thus, we need not address the summary judgment motion at this time.
Plaintiff filed his original complaint on October 25, 2007, and his amended complaint on November 26, 2007. The amended complaint alleges the medical care Plaintiff received at the federal prisons where he has been incarcerated since 1997 and the various complaints he allegedly made relevant to his heart condition. As also alleged in the amended complaint, Plaintiff was incarcerated at the following prisons for the periods indicated:
(1) from 1997 to 2000 at FCI-Ray Brook, Ray Brook, New York; (2) from 2000 to 2001 at FMC-Rochester, Rochester, Minnesota; (3) from 2001 to 2002 at USP-Terra Haute, Terra Haute, Indiana; (4) from 2002 to 2005 at FCI-Butner, Butner, North Carolina; (5) from 2005 to 2006 at FCI-Allenwood, White Deer, Pennsylvania; and (6) during 2006 at USP-Canaan, Waymart, Pennsylvania.
As noted, Plaintiff alleges that the medical care he received at all these institutions contributed to his heart disease and the heart attack he eventually suffered on or about September 26, 2006, but we provide some detail on the allegations concerning his stay at FCI-Allenwood and USP-Canaan.
Plaintiff alleges that he received some treatment at FCI-Butner on March 21, 2003, and next alleges that over two years later he was transferred to FCI-Allenwood on May 4, 2005. (Am. Compl. ¶¶ 66-67). On that day, among other things, he complained of shortness of breath that had been getting worse for the previous three months. A chest x-ray and EKG were ordered. Plaintiff was re-examined on June 22, 2005, but there was no report on the chest x-ray and no EKG had been performed, nor had Plaintiff received the proper "acute" care. (Id. ¶¶ 68-69).
In 2006, Plaintiff was transferred to USP-Canaan. In January 2006, an EKG was done showing "profound 'T-wave' changes reflecting ischemia in the heart muscle," (id. ¶ 71), and Plaintiff "showed 'angina' symptoms," (id.), but no emergency action was taken, although it was justified. (Id.). "On April 7, 2006 EKG showed inferior T-wave changes very serious, positive for ischemia." (Id. ¶ 72). On August 12, 2006, Plaintiff complained of right side chest pain, and the EKG showed "significant inferior T-wave changes," "more extensive ischemia involving other parts of the heart." (Id. ¶ 74). Plaintiff was given Motrin.
On September 25, 2006, Plaintiff complained of chest pain, stating that it had been occurring several times in the prior two weeks. An EKG dated September 24 (but undoubtedly taken on September 25) revealed "severe ischemia." The next day, September 26, Plaintiff complained of shortness of breath and chest-pain pressure. An EKG revealed a myocardial infarction, and Plaintiff was sent to a local hospital. On September 29, Plaintiff had quadruple bypass surgery. (Id. ¶ 76). On July 6, 2007, ...