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Brownstein v. Gieda

August 13, 2009

ROBERT BROWNSTEIN, PLAINTIFF
v.
ANTHONY GIEDA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE SCRANTON POLICE DEPARTMENT, POLICE CHIEF DAVID ELLIOT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE SCRANTON POLICE DEPARTMENT, THE CITY OF SCRANTON, THE SCRANTON POLICE DEPARTMENT, DIANE CHINDEMI, JANE DOE, PHLEBOTOMIST OF COMMUNITY MEDICAL CENTER AND COMMUNITY MEDICAL CENTER HEALTHCARE SYSTEMS, DR. VINCENT POLLINO, LT. JOSEPH SMURL, COMMUNITY MEDICAL CENTER HEALTH CARE SYSTEM, AND COMMUNITY MEDICAL CENTER, D/B/A CMC HOSPITAL, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court is Defendant Community Medical Center, Community Medical Center Healthcare system, Joseph Smurl, Diane Chindemi and Christine Condo's (captioned as "Jane Doe") and Defendant Dr. Vincent Pollino's notices of intention to enter judgment of non pros on plaintiff's professional liability claims (Docs. 24, 24) and plaintiff's motions for a determination that a certificate of merit is unnecessary. (Docs. 30-31).

Background

This case arises from the September 4, 2006 transport of plaintiff by Scranton, Pennsylvania police and ambulance to the Community Medical Center in that city. (Complaint (hereinafter "Complt.") (Doc. 1) at ¶ 28). According to the plaintiff's complaint, he was transported by Network Ambulance to the hospital and by Scranton Police Car #18 after authorities believed he was having seizures or medical convulsions while in custody at the Scranton Police Station. (Id.). Plaintiff alleges that officers believed he was faking and did not have a problem requiring emergency medical treatment. (Id.). The plaintiff was not subject to any search warrant or other court order. (Id. at ¶ 29).

When plaintiff arrived at the hospital, hospital personnel, including Defendants Vincent Pollino, MD, Diane Chindemi, RN, Lt. Joseph Smurl, and Police Officer Anthony Gieda all sought to have blood drawn from plaintiff's body. (Id. at ¶ 30). Plaintiff, who was conscious, refused this medical treatment and expressed to hospital staff his desire not to be treated. (Id. at ¶ 31). Despite these protests, hospital staff and the Scranton Police restrained the plaintiff, forcibly holding him down while his protests against the unwanted treatment continued. (Id. at ¶ 32). Defendants Gieda and Pollino then held plaintiff down as they and other hospital personnel applied four-point leather restraints to his arms and legs and tied him across the chest to an emergency room gurney. (Id. at ¶ 33). As plaintiff continued to put up physical and verbal resistance, an individual removed blood from his body. (Id. at ¶ 34). During a preliminary hearing in plaintiff's criminal matter, Defendant Gieda admitted that no court order or search warrant compelled plaintiff to submit to this testing. (Id. at ¶ 35). Officer Gieda also admitted that plaintiff never consented to the treatment. (Id.). Plaintiff alleges that defendants Gieda, Smurl and other CMC staff caused bruises and other injuries through their efforts to restrain him. (Id. at ¶ 38). Such restraint also caused plaintiff severe emotional distress. (Id.). Plaintiff alleges that Defendant Jane Doe (now identified as Christine Condo), a phlebotomist employed by CMC exacerbated the assault and battery on the plaintiff by drawing blood while other defendants held him down. (Id. at ¶ 41). CMC, Defendant Chindemi and Defendant Pollino then provided plaintiff's test results to Defendant Gieda without court order or plaintiff's consent, violating his privacy rights. (Id. at ¶ 42).

Plaintiff further alleges that defendants, recognizing they had violated his rights, conspired to justify their behavior by bringing false disorderly conduct charges against him. (Id. at ¶ 43). As a result of these charges, plaintiff faced up to one year in jail and a $2,500 fine. (Id.). Plaintiff avers that this arrest lacked probable cause and was unjustified. (Id. at ¶ 44). The charges forced plaintiff to retain an attorney. (Id. at ¶ 46). He was also required to attend a preliminary hearing, pre-trial conference, and habeas corpus hearing. (Id. at ¶ 47). A judge in the Lackawanna County, Pennsylvania Court of Common Pleas eventually dismissed the charges against plaintiff. (Id. at ¶ 59).

Plaintiff filed his complaint in this court on September 2, 2008. The complaint contains sixteen counts. Count I names Defendants Gieda, Scranton Police Chief David Elliot, the City of Scranton and the Scranton Police Department on charges that defendants violated plaintiff's constitutional right to be free of excessive force and unlawful search and seizure. Count II raises a claim for intentional infliction of emotional distress against Officer Gieda, Chief Elliot, the City of Scranton, The Scranton Police Department, Diane Chindemi, Jane Doe, Vincent Pollino, Lt. Joseph Smurl, the CMC and the Community Medical Center Healthcare System. Count III is a claim for assault against the same defendants. Count IV alleges battery against those defendants. Count V is a claim for malicious prosecution and abuse of process against Defendants Gieda, Elliot, City of Scranton and the Scranton Police Department. Count VI raises a claim of negligent infliction of emotional distress against all of the defendants. Count VII alleges false arrest against Defendants Gieda, Elliot, the City of Scranton, The Scranton Police Department, Smurl, CMC and Community Medical Center Healthcare System. Count VIII is a false imprisonment claim against all of the defendants. Count IX charges all of the defendants with invasion of privacy through the disclosure of confidential medical information. Count X alleges that Defendants Gieda, Elliott, the City of Scranton and the Scranton Police Department invaded plaintiff's privacy by casting him in a false light. Count XI, raised against the City and the Police Department, contends that plaintiff's injuries were caused by an official policy and/or practice of the city. Count XII avers that Defendants CMC and CMC Health System committed corporate negligence in allowing plaintiff's injuries to occur. Count XIII alleges vicarious liability against those same defendants. Count XIV claims that Defendants Chindemi, Doe, Pollino, CMC Healthcare System and CMC failed to obtain informed consent from plaintiff before treating him. Count XV asserts that the city defendants violated plaintiff's rights under the Pennsylvania Constitution. Count XVI alleges a civil conspiracy among all the defendants to violate plaintiff's rights.

After being served with the complaint, defendants filed motions to dismiss. The parties briefed the motions, and the court issued a decision that granted those motions in part and denied them in part. (See Doc. 47). Of import to the instant motion the court dismissed plaintiff's claims for lack of informed consent against the individual defendants, as well as for corporate negligence based on a lack of informed consent. Defendants Community Medical Center Health Care System, Community Medical Center, Diane Chindemi and Christine Condo ("Jane Doe") filed a similar notice. (Doc. 24). Plaintiff then filed two motions seeking a determination that a certificate of merit was unnecessary for his claims. (Docs. 30-31).

Jurisdiction

Plaintiff brings the instant complaint pursuant to 42 U.S.C. § 1983. The court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court has jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article II of the United States Constitution.").

Legal Standard

Under Pennsylvania law, "[a] certificate of merit must be filed either with the complaint or within sixty days after the filing of the complaint in any action asserting a professional liability claim 'based upon the allegation that a licensed professional deviated from an acceptable professional standard.'" Smith v. Friends Hospital, 928 A.2d 1072, 1074-75 (Pa. Super. Ct. 2007) (quoting PA. R. CIV. P. 1042.3). Federal courts have found that this rule constitutes state substantive law and thus applies in federal courts in Pennsylvania pursuant to Erie R.R. v. Tompkins, 304 U.S. 64 (1938). See Scaramuzza v. Sciolla, 345 F. Supp. 2d 508, 510 (E.D. Pa. 2005) (citing Chamberlain v. Giampap, 210 F.3d 154, 158-61 (3d Cir. 2000), which held that an analogous New Jersey statute was substantive law); Velazquez v. UPMC Bedform Mem'l Hosp., 328 F. Supp. 2d 549 (W.D. Pa. 2004). Courts may dismiss cases when a plaintiff fails to file a required certificate of merit. See, e.g., Stroud v. Abington Mem. Hosp., 546 F. Supp. 2d 238, (E.D. Pa. 2008); Bresnahan v. Schenker, 498 F. Supp. 2d 758, 762 (E.D. Pa. 2007); McElwee Group, LLC v. Mun. Auth of Elverson, 476 F. Supp. 2d 472, 475 (E.D. Pa. 2007) (holding that "failure to submit the certificate is a possible ground for dismissal by the district court, when properly presented to the court in a motion to dismiss).

Here, the parties do not dispute that the defendants seeking the certificate are licensed professionals. The question in this case is thus whether the plaintiff's complaint sounds in professional negligence or malpractice, thus requiring that plaintiff file a certificate. "Medical malpractice is defined as the 'unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services." Ditch v. Waynesboro Hospital, 917 A.2d 317, 321-22 (Pa. Super. Ct. 2007) (quoting Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003)). As in an ordinary negligence case, a plaintiff must prove duty, breach, harm and causation. Id. at 322. Courts distinguish medical malpractice from ordinary negligence in two ways: "'[f]irst, medical malpractice can occur only within the course of a professional relationship. Second, claims of medical malpractice necessarily raise questions involving medical judgment.'" Id. (quoting Grossman v. Barke, 868 A.2d 561, 570 (Pa. Super. Ct. 2005)). Thus, to determine whether a claim involves medical malpractice, a court must ask: "'(1) whether the claim pertains to an action ...


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