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Miszler v. Shoemaker

March 20, 2009


The opinion of the court was delivered by: Judge Vanaskie


Plaintiff Bernard Victor Miszler has moved for a new trial in this civil rights action following this Court's grant of a motion for judgment as a matter of law on the ground that the evidence was insufficient to support a finding that the alleged deliberate failure of the warden of the Susquehanna County Correctional Facility ("SCCF") to assure that Plaintiff received a prescribed antibiotic medicine for a 48-hour period was the cause in fact of an infection first observed two weeks after Plaintiff's discharge from the prison. Having carefully considered Plaintiff's contentions and the arguments advanced by defense counsel, the motion for a new trial will be denied.


This is a civil rights action brought solely under 42 U.S.C. § 1983 for alleged deliberate indifference to Plaintiff's serious medical needs during a 48-hour period while he was incarcerated at the SCCF. Mr. Miszler named as Defendants Jeffrey J. Shoemaker, the Chief Probation Officer for Susquehanna County; Sheri Chapel, a Probation Officer for Susquehanna County; Charles J. Aliano, Lance Benedict, Robert Calvin Dean, Gary Marcho, and Lee Smith, members of the Susquehanna County Prison Board; Susquehanna County; and William Brennan, Warden of SCCF. By Memorandum and Order filed on June 4, 2007, all Defendants, with the exception of Warden Brennan, were granted summary judgment. In November of 2007, the case proceeded to trial as to Warden Brennan only.

The evidence revealed that on August 20, 2002, while participating in a work release program offered by Susquehanna County, Mr. Miszler sustained a serious crush injury of his right femur. An open reduction of the resulting fracture was performed by Dr. Chiavacci at the Community Medical Center in Scranton, Pa. Dr. Chiavacci also repaired a torn right quadriceps muscle.

Dr. Chiavacci ordered antibiotic treatment while Mr. Miszler remained in the hospital. For reasons that are not apparent from the record, however, the antibiotics were suspended for a 36-hour period during Mr. Miszler's hospitalization.

Mr. Miszler was discharged from the hospital on August 27, 2002. Over his objections, he was returned to the SCCF that morning. At the time of his discharge, Mr. Miszler was given prescriptions by Dr. Chiavacci for three medications: Percocet, Lovenox, and Keflex, which is a brand name for Cephalexin, an antibiotic. Specifically, Dr. Chiavacci prescribed 500 mg capsules of Cephalexin, to be taken four times a day. When Mr. Miszler arrived at SCCF, his wife provided Warden Brennan with Dr. Chiavacci's prescriptions.

Mr. Miszler was confined at SCCF from August 27 to August 29, 2002. He claims that he did not receive any Keflex during the approximate 48 hours that he remained at SCCF. On August 29, 2002, Mr. Miszler was granted a medical furlough by the Court of Common Pleas for Susquehanna County, and was released from SCCF. On the way home, the Keflex prescription was filled.*fn1

On September 3, 2002, Mr. Miszler was examined by Dr. Chiavacci, who reported that Mr. Miszler was "doing well," and that the "wound looked good." No notation of possible infection was made at that time. Staples used to close the incision were removed during the September 3rd visit. (Metzger Trial Testimony, Dkt. Entry 52, at 12.)*fn2

Mr. Miszler was next seen by Dr. Chiavacci on September 13, 2002, two weeks after his release from jail and more than one week after the prescribed period for the course of antibiotic medication had expired. At that time, a small necrotic area was observed at the incision site. Dr. Paul Metzger, an orthopedic surgeon who served as Plaintiff's expert witness, testified that this small necrotic area, coupled with observed warmth and erythema, were "the first signs of possible wound infection." (Id.) Dr. Chiavacci prescribed another round of antibiotics.

At another medical examination that occurred on September 16, 2002, drainage from the surgical incision was noted. Dr. Metzger explained that at that point Dr. Chiavacci relinquished the care of Plaintiff to a plastic surgeon. (Id.)

On October 7, 2002, Mr. Miszler was readmitted to the hospital, where he underwent debridement of the right thigh wound. On November 18, 2002, a skin graft was placed over the infected area, and the wound healed.

Mr. Miszler claims that he sustained a loss of quadriceps strength and disfigurement of the right thigh area as a result of the infection first observed on September 13, 2002. He claims that deliberate indifference of Warden Brennan to his medical condition during his two-day stay at SCCF in late August, 2002, resulted in the infection and necessitated the debridement and skin graft procedures.*fn3

At the trial, the recorded testimony of Dr. Metzger was presented. Dr. Metzger testified that "the wound started to turn sour somewhere around the thirteenth of September, which is a little bit unusual for a wound to start to turn sour like that." (Metzger Tr., Dkt. Entry 52, at 12.) Dr. Metzger also observed, however, that crush injuries "behave in a different fashion." He also testified that, in his experience, crush type injuries are more prone to infection. (Id. at 14.) Asked to opine "to a reasonable degree of medical certainty," as to whether withholding antibiotics ...

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