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John Milliner v. David Diguglielmo

June 8, 2011

JOHN MILLINER,
PLAINTIFF,
v.
DAVID DIGUGLIELMO, ET AL., DEFENDANTS.



MEMORANDUM

Plaintiff John Milliner, a prisoner incarcerated at the Pennsylvania State Correctional Institution at Graterford ("SCI-Graterford"), has filed an action under 42 U.S.C. § 1983, alleging that numerous defendants were deliberately indifferent to his medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Milliner's Third Amended Complaint ("the complaint") also includes statelaw claims for medical malpractice and common law negligence.*fn1 The complaint alleges, as a general matter, that Milliner severely injured his back when he fell from the top bunk of his cell and that he received inadequate medical care for the pain and complications resulting from that fall. Milliner further alleges that he underwent a flawed spinal surgery that left him temporarily paralyzed from the neck down.

Before the court are motions to dismiss Milliner's complaint, filed on behalf of (1) defendants David DiGuglielmo, Julie Knauer, and Myron Stanishefski ("the Administrative Defendants"), dkt. 64; (2) Raymond Machak, P.A., John Zaro, M.D., Richard Stefanic, M.D., Caleb Nwosu, D.O., and Prison Health Services, Inc. ("the Medical Defendants"), dkt. 66; and (3) defendants Caroll Osgood, M.D., and Altoona Hospital ("the Altoona Defendants"), dkt. 78. Milliner has filed responses to each of these motions.

I. Factual Background*fn2

In October of 2006, Milliner-an inmate at SCI-Graterford-fell awkwardly from the top bunk of his cell. The fall caused him extreme pain in his lower back and other parts of his body. Over the course of the next year, Milliner was seen by several doctors and a physician's assistant. He was prescribed various pain-relief medications and he eventually underwent an MRI. The MRI revealed "several cervical disc herniations, protrusions, and bulges as well as significant compression of the cervical spinal cord and possible edema on and myleomalacia of the cord itself." Compl. ¶ 41.

Based on this MRI, Milliner was referred to a neurosurgeon at Altoona Hospital, Dr. Carroll Osgood. Compl. ¶ 42. Dr. Osgood performed a flawed spinal surgery on Milliner and, "[a]s a result of the surgery, Plaintiff was left completely paralyzed from the neck down." Compl. ¶ 44. Milliner was eventually able to regain movement in some parts of his body.

In the year and a half following this "botched" surgery, Milliner received substandard care. He was initially housed in an institution that was not equipped to handle his post-surgical treatment, and even after he was transferred to a better-equipped institution, he continued to receive inadequate care. On March 26, 2009, it was recommended that Milliner undergo a second surgery. Throughout the course of Milliner's ordeal, he submitted several grievances to the prison's administrators, but all grievances were denied. As a result of the inadequate treatment described above, Milliner suffers from several disabilities, including: a lack of full range of motion with all of his limbs, constant numbness in both hands, loss of balance, chronic pain, convulsions, and an inability to perform everyday tasks.

On October 14, 2008, Milliner filed a civil rights action in this court. The operative complaint alleges that the defendants' acts and omissions amounted to (1) deliberate indifference to his serious medical needs, (2) medical malpractice, and/or (3) ordinary negligence.*fn3 The following sections address the specific claims leveled against each defendant.

II. Standard of Review under Rule 12(b)(6)

In order to survive a motion to dismiss for failure to state a claim, a complaint need only include "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus plaintiffs must include "sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing a 12(b)(6) motion, "the facts alleged [in the complaint] must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Reasonable inferences must be drawn in favor of the plaintiff. Id.

Deliberate indifference to medical needs

"Deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 182--83) (citation omitted)). This standard "requires deliberate indifference on the part of the prison officials and it requires the prisoner's medical needs to be serious." West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978).*fn4 Deliberate indifference is established where "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). But "negligence in the administration of medical treatment to prisoners is not itself actionable under the Constitution . . . ." Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979); see also Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F. 2d 326, 346 (3d Cir. 1987) ("[M]ere allegations of malpractice do not raise issues of constitutional import."). Moreover, "[c]courts will 'disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment . . . [which] remains a question of sound professional judgment.'" Id. (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).

The deliberate indifference standard is met under a variety of circumstances, including (1) where "prison authorities deny reasonable requests for medical treatment . . . and such denial exposes the inmate to undue suffering or the threat of tangible residual injury," (2) "where knowledge of the need for medical care [is coupled with] . . . intentional refusal to provide that care," (3) where "prison officials . . . , with deliberate indiferrence to the serious medical needs of the inmate, opt for an easier and less efficacious treatment of the inmate's condition," and (4) where "necessary medical treatment is delayed for non-medical reasons." Lanzaro, 834 F.2d at 346 (internal quotation marks omitted).

Medical Malpractice

To state a claim for medical malpractice under Pennsylvania law, a plaintiff must show (1) a duty owed to a patient by a physician; (2) a breach of that duty by the physician; (3) the breach of that duty was the proximate cause of, or a substantial factor in bringing about the harm suffered; and (4) the damages suffered by the patient were a direct result of the harm. Quinby v. Plumsteadville Family Practice, 907 A.2d 1061, 1070 (Pa. 2006).

The Pennsylvania Supreme Court has described the applicable standards of care, for specialists and non-specialists, as follows:

A physician who is not a specialist is required to possess and employ in the treatment of a patient the skill and knowledge usually possessed by physicians in the same or a similar locality, giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable man.

The standard of care for a specialist acting within his or her specialty is higher.

He or she is expected to exercise that degree of skill, learning and care normally possessed and exercised by the average physician who devotes special study and attention to the diagnosis and treatment of diseases within the specialty.

Joyce v. Boulevard Physical Therapy & Rehab. Ctr., P.C., 694 A.2d 648, 654 (Pa. 1997) (internal quotation marks omitted).

Negligence

Unlike a medical malpractice claim, "claims of ordinary negligence . . . raise issues that are within the common knowledge and experience of the fact-finder." Smith v. Friends Hosp., 928 A.2d 1072, 1075 (Pa. Super. 2007). "Therefore, a court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or medical malpractice: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience." Id.

IV. The Medical Defendants*fn5

The Medical Defendants include Raymond Machak, Dr. John Zaro, Dr. Richard Stefanic, Dr. Caleb Nwosu, and Prison Health Services, Inc. ("PHS"). All of the individual Medical Defendants worked at SCI-Graterford and contracted with the Department of Corrections and/or PHS. PHS contracted with the Department of Corrections to provide health care services to inmates. Compl. ¶ 9.

Milliner alleges that all of the individual Medical Defendants are liable under theories of deliberate indifference, medical malpractice, and ordinary negligence.*fn6 He alleges that PHS is also liable for deliberate indifference, and under the state-law doctrines of corporate negligence and vicarious liability.

A. Raymond Machak

According to the complaint, Machak is "responsible for providing medical care to inmates and/or aiding physicians with medical care of inmates." Compl. ¶ 6. As a physician's assistant, Machak appears to serve as a "first responder" who visits an inmate anytime the inmate puts in a "sick call request." The complaint alleges that Machak responded to at least four of Milliner's sick call requests. See Compl. ¶¶ 20, 23, 27, 31. After the first visit, Machak prescribed fourteen days worth of pain medication. The medication was discontinued after three days for unknown reasons not attributed to Machak. After the second visit, Machak placed Milliner on the list for a doctor's appointment. The complaint does not state what action, if any, was taken after the third and fourth visits, except to state that, on those two occasions, Machak failed to conduct a physical exam or to put Milliner on the list to be seen by a doctor.

Milliner stresses Machak's failure, on all four sick calls, to physically examine Milliner. By itself, however, that omission is insufficient to demonstrate deliberate indifference. Machak visited Milliner's cell one to two days after each request. He prescribed medication after the first request, and referred Milliner to a doctor after the second request. Moreover, although Machak did not refer Milliner to a doctor after the third and fourth sick calls, Milliner was already being seen by various physicians periodically around the time of the third and fourth calls. Given that Machak was responsive to Milliner's complaints and that Milliner was receiving considerable attention from physicians, Machak's failure to physically examine does not amount to deliberate indifference. Instead it amounts to a mere disagreement with the extent of review provided by Machak. Accordingly, the federal claims will be dismissed, without prejudice, as to Machak.

B. Dr. John Zaro

Dr. Zaro-the first physician to assess Milliner's condition-saw Milliner on November 6, 2006. The complaint alleges that "Dr. Zaro stated to Plaintiff that his continued pain was the result of arthritis. Dr. Zaro's arthritis determination was based upon his review of an X-ray of Plaintiff that was taken in March 2005, more than 1 1/2 years before Plaintiff's injury on October 14, 2006." Compl. ΒΆ 24. Dr. Zaro then ordered ten days' worth of medication and advised Milliner that he would follow-up within a five-week period. But neither Dr. Zaro nor any other physician saw Milliner within five weeks. After Milliner submitted another sick call request, Dr. Zaro saw Milliner on December 28, 2006, approximately seven weeks after Dr. Zaro's first visit. During that visit, ...


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