The opinion of the court was delivered by: (judge Caputo)
Presently before the Court are several motions for summary judgment by the defendants in this action, including the Motion for Summary Judgment of Defendant Dr. Alan Esper (Doc. 229); the Motion for Summary Judgment of Defendants Prison Health Services, Inc. ("PHS") and Dr. Mark Baker (Doc. 234); and the Motion for Summary Judgment of Defendants Wexford Health Sources, Inc. ("Wexford") and Physician's Assistant Debra O'Leary (Doc. 237). Plaintiff Jessica Hankey, Administratrix of the Estate of Ryan Rohrbaugh, voluntarily withdraws several claims which are the subject of motions for summary judgment. The Court will dismiss the withdrawn claims. As to the remaining claims, the Court will deny the Motion for Summary Judgment of Defendant Dr. Esper and that of Defendants Wexford and P.A. O'Leary. The Court will grant in part and deny in part the Motion for Summary Judgment of Defendants PHS and Dr. Baker.
This Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction") and over her state law claims pursuant to 28 U.S.C. § 1367(a) ("supplemental jurisdiction").
Ryan Rohrbaugh, deceased, brought claims against Defendants under 42 U.S.C. § 1983 and Pennsylvania medical malpractice law. Rohrbaugh was incarcerated as the result of a parole violation from January to December of 2003. During his incarceration, he was diagnosed with melanoma, from which he ultimately died after his release from prison. After his death on June 7, 2006, Jessica Hankey, individually and as Administratrix of Rohrbaugh's estate, was substituted as Plaintiff. (Doc. 166.)
Rohrbaugh was first incarcerated for a parole violation at York County Prison on January 4, 2003. (PHS/Baker Statement of Facts ¶ 3, Doc. 236)*fn1 (hereinafter "PHS Statement"). At the time of his incarceration there, PHS was the third party health care provider at York County Prison. (Id. ¶ 1.) On May 8, 2003, Rohrbaugh was transferred to the State Correctional Institution-Camp Hill ("SCI-Camp Hill"). (Id. ¶ 5.) During his time at SCI-Camp Hill, Wexford was the third party health care provider at the prison. (Wexford/O'Leary Statement of Facts ¶ 8, Doc. 238) (hereinafter "Wexford Statement").
On May 13, 2003, P.A. O'Leary performed a routine physical examination of Rohrbaugh as part of his intake at SCI-Camp Hill. During the exam, she reviewed the results of blood and urine tests that had been performed upon his arrival at the prison. She noted that certain results from the tests were outside normal parameters. On June 12, 2003, she ordered the tests re-performed. The new tests came back within normal parameters. (Id. ¶¶ 22-29.) Also during the May 13 intake examination, P.A. O'Leary noted that Rohrbaugh had a mole on his back that appeared abnormal in the sense that it was "raised," "irritated," and "pigmented." (Id. ¶ 30.) Rohrbaugh testified at deposition that P.A. O'Leary advised him to sign up for "sick call" to have the mole removed. (Rohrbaugh Dep. at 80, Aug. 22, 2005, Ex. 2, Doc. 239.) There is uncertainty in the record as to whether Rohrbaugh ever sought further medical treatment at SCI-Camp Hill. Wexford and P.A. O'Leary assert that prison medical records reveal that decedent never sought any treatment at the prison. (Wexford Statement ¶ 36.) Rohrbaugh testified that he did sign up for sick call and was seen by a nurse as well as a doctor prior to leaving the prison. (Rohrbaugh Dep. at 83-84, Aug. 22, 2005, Ex. 2, Doc. 239.) It is undisputed, however, that no further medical steps were taken regarding his mole at SCI-Camp Hill.
Rohrbaugh was transferred to the State Correctional Institution-Albion ("SCI-Albion") on August 4, 2003. (PHS Statement ¶ 8.) As of August 30, 2003, PHS was the third party health care provider at the prison. (Id. ¶ 9.) On September 4, Rohrbaugh was seen by a physician's assistant regarding a painful mole. A biopsy was scheduled for September 8, but Rohrbaugh did not come to the appointment. He received the re-scheduled biopsy on September 27. The prison medical department received the results on October 6, which revealed the presence of malignant melanoma. Dr. Esper, a general surgeon not employed by the prison, was consulted to see Rohrbaugh at the on-site general surgery clinic. Dr. Esper evaluated him on October 15, and recommended he undergo a wide excision of the melanoma. Dr. Esper performed the excision at an area hospital on November 4. (Id. ¶¶15-26.) On November 6, the pathological impression of the excision was, according to prison records:
1) Superficial spreading malignant melanoma. Clark's level V, 6 mm thick with mild lymphohistiocytic inflammatory infiltrate;
2) All surgical margins of excision negative for malignant neoplasm;
Dr. Esper saw Rohrbaugh again on November 19, 2003. At that time, Dr. Baker, medical director of SCI-Albion, spoke to both Dr. Esper and Rohrbaugh about referring the latter to a medical oncologist. (Id. ¶¶ 28, 29.) According to Dr. Baker's deposition testimony and progress notes, Dr. Esper recommended a consultation with an oncologist, but Rohrbaugh, who understood he was soon to be released, preferred to seek follow-up treatment after leaving prison. (Baker Dep. at 36-40, Jan. 18, 2008, Ex. H, Doc. 236.) Also according to Dr. Baker's testimony and progress notes, he met with Rohrbaugh again on December 5-after confirming with his parole officer Rohrbaugh's anticipated release within two (2) to eight (8) weeks-to advise him to seek further treatment after release and to give him a copy of his pathology report of November 6, a letter from Dr. Esper regarding the surgery, and a prescription for a possible follow-up metastatic work-up. (Id. at 54-55.)
Rohrbaugh was released from prison on December 22, 2003. He sought care related to his melanoma approximately seven (7) weeks after his release. He later had a recurrence of the cancer and was ultimately diagnosed with metastatic disease, from which he died on June 7, 2006. (PHS Statement ¶¶ 36, 37, 39, 40.)
Rohrbaugh filed the present action on January 19, 2005. (Doc. 1.) An amended complaint was later filed with leave of the Court on September 6, 2005. (Docs. 112, 113.) A number of defendants named in the amended complaint have been voluntarily dismissed since that time. (Docs. 213, 214, 216, 227.) Though the amended complaint re-states claims raised in the original complaint against SCI-Camp Hill and SCI-Albion, the Court previously held that the prisons enjoy immunity under the Eleventh Amendment to the U.S. Constitution and are not properly named defendants in this action. (Doc. 73.) In accordance with this ruling, Rohrbaugh omitted the two (2) prisons from the caption of his amended complaint. (Doc. 113.) The Court presumes, therefore, that the amended complaint's claims against SCI-Camp Hill and SCI-Albion were included in error.
The remaining Defendants are Wexford, P.A. O'Leary, Dr. Baker, Dr. Esper, and PHS. Defendants Wexford, P.A. O'Leary, Dr. Baker, and PHS filed answers to the amended complaint with affirmative defenses and cross-claims. (Docs. 116, 118.) Dr. Esper filed a motion to dismiss (Doc. 124) which was granted in part and denied in part (Doc. 131). He then filed an answer with affirmative defenses and a cross-claim. (Doc. 134.)
Plaintiff's amended complaint raises a medical malpractice claim against each remaining Defendant*fn2 as well as a § 1983 claim for violation of the Eighth Amendment to the U.S. Constitution against each, with the exception of Dr. Esper. (Doc. 113.) There are three motions for summary judgment pending before the Court. Dr. Esper moves for summary judgment as to the medical malpractice claim against him. (Doc. 229.) Defendants PHS and Baker together move for summary judgment as to the medical malpractice and § 1983 claims against them. (Doc. 234.) Defendants Wexford and P.A. O'Leary together move for summary judgment as to the medical malpractice and § 1983 claims against them. (Doc. 237.) These motions are fully briefed*fn3 and ripe for disposition.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law.
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57.
The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
I. Medical Malpractice Claims
"In order to establish a prima facie case of malpractice, the plaintiff must establish (1) a duty owed by the physician to the patient (2) a breach of duty from the physician to the patient (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm."Mitzelfelt v. Kamrin, 584 A.2d 888, 891 (Pa. 1990). "A plaintiff is also required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of ...