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McCool v. Dep't of Corrections of the Commonwealth of Pennsylvania

July 29, 2009

JOHN ROBERT MCCOOL, APPELLANT
v.
DEPARTMENT OF CORRECTIONS OF THE COMMONWEALTH OF PENNSYLVANIA, AND ITS AGENTS, JEFFREY BEARD; CATHERINE MCVEY AND DONALD SKUNDA



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

ORDER

AND NOW, this 28th day of October, 2009, it is hereby ORDERED as follows:

(1) The opinion in the above matter, filed July 29, 2009, is hereby AMENDED as shown in the highlighted language of the attached opinion.

(2) The opinion in the above matter shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported as amended by this Order.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

JUDGE LEAVITT

John Robert McCool, an inmate at the State Correctional Institution at Forest (SCI-Forest), appeals an order of the Court of Common Pleas of the 37th Judicial District (Forest County Branch) (trial court) that dismissed his medical malpractice complaint on grounds of sovereign immunity and failure to state a cause of action. We affirm, albeit on grounds additional to those relied upon by the trial court.

In his complaint, McCool alleged that he received negligent medical care while at SCI-Forest, where he has been incarcerated since August of 2005. McCool alleges that his conditions, mastocytosis*fn1 and esophageal dysphagia,*fn2 which have caused "massive scarring" and difficulty swallowing, were not appropriately addressed at SCI-Forest.

Complaint

¶10. On February 2, 2007, McCool suffered an esophageal blockage that prevented him from swallowing foods or liquids. He reported the blockage to medical staff, who responded that he would have to sign up for "sick-call" the next day. Complaint

¶12. The next afternoon, McCool was rushed to a hospital where he underwent emergency surgery, described by McCool as a "near death experience." Complaint

¶15. At the hospital, McCool was diagnosed as suffering from "esophageal stricture" and was given a treatment program. Complaint ¶14.

On March 19, 2008, McCool filed the instant complaint against the Pennsylvania Department of Corrections (Department); Jeffrey Beard, Department Secretary; Catherine McVey, Department Director of the Bureau of Health Care;*fn3 and Donald Skunda, Director of Prison Health Care Services at SCI-Forest. McCool was granted permission to proceed in forma pauperis. On May 19, 2008, McCool petitioned for leave to file an amended complaint. The same day, he filed a motion to join additional defendants: Prison Health Care Services at SCI-Forest;

B. Dombrowsky, Corrections Unit Manager at SCI-Forest; S. Dombrowsky, Corrections School Principal at SCI-Forest; and three employees of Prison Health Care Services, Nurse Joan Delie, Nurse Rhonda Sherbine and Doctor Maxa. On May 28, 2008, McCool filed certificates of merit, in accordance with PA. R.C.P.

No. 1042.3(a)(3), attesting that expert testimony would not be necessary to prosecute his claims of professional malpractice.

On June 4, 2008, the trial court, sua sponte, dismissed McCool's complaint under authority of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. ยงยง6601-6608; denied McCool's request to join additional defendants employed in the prison's health care services department; and denied McCool's application to file an amended complaint. Thereafter, in its PA. R.A.P. 1925(a) opinion, the trial court explained that it based its dismissal of McCool's claim on the two affirmative defenses raised by the defendants, sovereign immunity and lack of notice. In addition, the ...


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