The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is Defendants, Matthew McLean, M.D. ("Dr.
McLean"), and Muscle Bone & Joint Center, P.C.'s ("MBJC")*fn1
Motion for Summary Judgment against Plaintiff Darrell Morton
("Morton").*fn2 For the reasons set forth below, the
Summary Judgment Motion will be denied.
Morton filed the instant Complaint on October 22, 2009 alleging a violation of his civil rights pursuant to 42 U.S.C. § 1983, and medical malpractice related to medical care that he received at Frankford Hospital and the Philadelphia Prison System beginning on July 1, 2008. Morton, an inmate at a county correctional institution named Curran-Fromhold Correctional Facility ("CFCF"), contends that on July 1, 2009 he was caused to slip and fall on a slippery floor surface inside of this facility. (Compl.¶ 19.) Morton states that on July 2, 2008, he was transported to Frankford Hospital with complaints of pain in his thighs and legs, and an inability to walk. (Id. ¶ 20.) Upon admission to Frankford, Morton was seen by Dr. Matthew Young.*fn3 X-rays were taken which revealed bilateral hip fractures. (Pl.'s Resp. Mot. Summ. J., Ex. I.) An MRI was also performed which confirmed the fractures. Morton was next seen by Dr. McLean. Dr. McLean asserts that based on the MRI results and Morton's clinical history he determined that emergency surgery was not necessary. Dr. McLean also asserts that it was his understanding from Morton's history that Morton had been walking on the fractures for months, and that his recent complaints of pain were due to muscle weakness, and not the fractures. (Def.'s Mot. Summ. J. at 4.) Dr. McLean concluded that "based upon Morton's youth, as well as the complexity of his medical condition," Morton would best benefit from a total hip replacement which was a procedure that he did not perform. He, therefore, discharged Morton back to the prison with instructions to "follow up with a University Center for definitive treatment." (Id.) Morton contends that at no time subsequent to his release from Frankford Hospital and return to CFCF was he ever transported to a university hospital for any type of consultation, nor did he receive any physical therapy from Prison Health Services, Inc. ("PHS"). (Compl. ¶¶ 27-28.) Morton also claims that he did not receive any diagnostic or radiology testing in the months of July and August 2008 (Id. ¶ 29.) He further avers that on or around July 16, 2008, a prison health progress note indicated that Morton should have an orthopedic follow up as soon as possible, and that no such follow up was scheduled for the months of July, August, or September 2008. (Id. ¶¶ 31-34.) Morton states that from July 2, 2008 until September 10, 2008, he was continuously vocal about his hip pain and symptoms which were documented by the prison medical staff, but he received no medical relief or treatment from PHS. (Id. ¶ 38.) Morton avers that he finally had an orthopedic consultation with Dr. Dennis McHugh, and that on October 27, 2008, he was admitted into Mercy Suburban Hospital where he underwent a hip procedure called a "bilateral bipolar hemi-arthroplastics" performed by Dr. McHugh. (Id. ¶¶ 39-40.) Morton asserts that all Defendants were informed by Frankford Hospital that he had urgent medical needs and required treatment yet, in violation of his Eighth Amendment constitutional rights, they repeatedly refused to treat him and send him to the recommended facilities for consultations, therapy, and diagnostic testing. (Id. ¶¶ 43-45.) Morton asserts that this delay in treatment caused permanent deformities and gait impairments, and that all Defendants acted with deliberate indifference to his serious medical needs. (Id. ¶¶ 48-54.)
On December 30, 2010, Defendants, City of Philadelphia (the "City"), Warden Clyde Gainey ("Warden Gainey"), America Service Group, Inc. ("America"), PHS, A.R. Caulk, M.D. ("Dr. Caulk'), Mohammed Haque, M.D. ("Dr. Haque"), James Arnone, M.D. ("Dr. Arnone"), and Eke Kalu, M.D. ("Dr. Kalu"), filed a Motion for Summary Judgment. Defendant Frankford Hospital also filed a Motion for Summary Judgment on this date. On February 15, 2011, this Court filed a Memorandum and Order denying the Motion in part and granting it in part. See Morton, 2011 WL 536540 at * 1. Specifically, the Motion was denied with respect to America, PHS, Dr. Caulk, Dr. Haque, Dr. Arnone, and Dr. Kalu.*fn4 The Motion was granted with respect to the City and Warden Gainey. (Id.) In addition, Frankford and Aria's Motion for Partial Summary Judgment was granted. Dr. McLean filed the instant Motion for Summary Judgment on May 24, 2010, and on May 31, 2011, Aria and Frankford filed a Motion to join in this Motion.
Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether . . . one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be 'genuine,' i.e., the evidence must be such 'that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F. Supp. 554, 561 n.14 (E.D. Pa. 1998).
Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). "More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996). If the court determines that there are no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322.
Dr. McLean's Motion is first denied on the basis of being untimely. This Court filed an Amended Scheduling Order on July 6, 2010 setting forth, among other deadlines, the deadline for filing any dispositive motions. (Doc. No. 41.) This date was set for December 30, 2010. On September 27, 2010, we granted Morton's Motion to extend the deadline for production of expert witnesses, but all other deadlines, including the deadline for filing of dispositive motions remained the same. (Doc. No. 48.) On December 15, 2010, this Court also granted Dr. McLean's and other Moving Defendants' request to extend the deadline for production of defense expert reports, however, all other deadlines again remained the same. (Doc. Nos. 60-61).
As noted above, all other Defendants in this case filed their Motions for Summary Judgment on the deadline date of December 30, 2010. (Doc. Nos. 62-63). As noted, we filed a Memorandum and Order on February 24, 2011, granting moving Defendants' Motion for Summary Judgment in part and denying it in part. See Morton, 2011 WL 536540 at * 1. Dr. McLean filed this present Motion on May 24, 2011- almost five months after the deadline this Court set for filing any dispositive motions. In this Motion, Dr. McLean offers absolutely no explanation for the untimeliness of this filing. We, thus, deny the Motion on the basis of being untimely.
In addition, to denying Dr. McLean's Motion for untimeliness, we will also deny it on its merits. Dr. McLean argues that Morton has failed to produce expert testimony against him that "establishes either a deviation from the standard of care, or a causal connection between the care rendered by Dr. McLean and ...