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Richard W. Illes, Sr., M.D. v. Dr. Barry Beaven et al

December 10, 2012

RICHARD W. ILLES, SR., M.D. PLAINTIFF
v.
DR. BARRY BEAVEN ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

This matter involves the medical treatment Plaintiff, Richard Illes, Sr., M.D., received while temporarily housed at the State Correctional Institution at Camp Hill ("SCI-Camp Hill"). Plaintiff brings claims for constitutional violations as well as state law medical malpractice and breach of confidentiality. Presently before the court are motions to dismiss the amended complaint filed by Defendants Dr. Christian Kcomt, Colleen Newfield, Sheila McGinnis, and Dr. David Underwood.

II. Background

In a motion to dismiss under Fed. R. Civ. P. 12(b)(6), we must take all factual allegations in the complaint as true. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). Plaintiff sets out the following facts in his complaint. Plaintiff, an inmate at the State Correctional Institution at Albion ("SCI-Albion"), was temporarily housed at SCI-Camp Hill from August 5, 2010 through August 31, 2010. Plaintiff had a history of severe degenerative joint disease and had been diagnosed with chronic pain syndrome, neuropathic pain, and chronic radiculopathy. The doctors at SCI-Albion treated these conditions with Celebrex, an anti-inflammatory agent, and Ultram, a pain medication. Plaintiff was also diagnosed with severe refractory depression for which he was being treated with Lexapro, an antidepressant. He was informed by a psychiatrist at SCIAlbion that he should take Lexapro for life. These three medications, Ultram, Celebrex, and Lexapro, are non-formulary, special order medications that required Plaintiff's physicians to state that they were absolutely necessary for Plaintiff, and that all other formulary medications could not be used because they were ineffective or caused serious side effects.

On August 6, 2010, Plaintiff was seen by Defendant Sheila McGinnis, a physician's assistant on staff at SCI-Camp Hill. McGinnis discontinued the Ultram and Celebrex and did not order any substitute pain medication. Plaintiff asserts that McGinnis did not perform any physical examination, review his medical records, or consult any of Plaintiff's regular treating physicians at SCI-Albion. Plaintiff explained to McGinnis that "all other formulary medications that could be used to treat his pain . . . had been found to be ineffective, and, or, had dangerous side-effects that precluded their use." (Doc. 57, ¶ 84). Dr. Underwood supervised McGinnis and co-signed her orders to discontinue the Ultram and Celebrex without performing any exams or reviewing Plaintiff's medical records. As a result of the discontinuation of the pain medications, Plaintiff had increased pain in his back, neck, leg, and shoulders, was unable to sleep, and suffered a recurrence of his gastritis and peptic ulcer disease.

Plaintiff made multiple sick call requests for these medications and was seen by Defendant Newfield, a physician's assistant at SCI-Camp Hill, on August 12, 2010 and August 19, 2010. Newfield consulted with Plaintiff at his cell door, within earshot of other inmates. Newfield informed Plaintiff that the Celebrex and Ultram would not be ordered. Plaintiff requested other narcotic pain medication, steroid injections, or to see a physician, but these requests were also denied by Newfield.

Though Plaintiff does not give an exact date, at some point during his stay at SCI-Camp Hill, Defendant Kcomt discontinued Plaintiff's anti-depressant medication, Lexapro. Prior to the discontinuation, Dr. Kcomt did not examine or interview Plaintiff or review Plaintiff's psychiatric records. Later, Plaintiff informed Dr. Kcomt of his history of severe refractory depression and a suicide attempt. As a result of the discontinuation of Lexapro, Plaintiff suffered increased depression, anxiety, headaches, lethargy, insomnia, increased degenerative joint disease, and neuropathic pain. Plaintiff also alleges that Dr. Kcomt violated his duty of confidentiality by requiring Plaintiff to discuss at his cell door his history of depression, his suicide attempt, and his need for anti-depressant medication.

On January 9, 2010, Plaintiff filed the instant action in the Court of Common Pleas of Cumberland County, alleging medical malpractice, breach of confidentiality, and violation of the Eighth Amendment. Defendants removed the action on March 1, 2012. On March 8, 2012, Defendant Kcomt filed a motion to dismiss and for summary judgment. On May 7, 2012, Plaintiff filed a motion for summary judgment for his claims against Dr. Underwood. On July 10, 2012, we granted in part and denied Kcomt's motion and denied Plaintiff's motion for summary judgment. On July 20, 2012, Plaintiff filed an amended complaint. Presently before the court are two motions to dismiss filed by Defendants McGinnis, Newfield, Underwood, and Kcomt.

III. Discussion

A. Standard of Review

Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id.at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation. Twombly, 550 U.S. at 555 (quoted case omitted).

In resolving a motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoted case omitted).

B. Medical Malpractice Claim Against Underwood, Newfield, and McGinnis*fn1 (Count I)

Defendants argue that Plaintiff fails to state a claim for medical malpractice. To establish a medical malpractice claim in Pennsylvania, a plaintiff must present an expert witness who will testify "to a reasonable degree of medical certainty, that the acts of the physician deviated from accepted medical standards, and that such deviation was the proximate cause of the harm suffered." Hakeem v. Salaam, 260 Fed. App'x 432, 434 (3d Cir. 2008) (nonprecedential) (citing Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 891 (Pa. 1990)). An expert witness is not required "when the matter is so simple or the lack of care so obvious as to be within the range of experience and comprehension of non-professional persons." Id. (citing Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 n. 1 (Pa. 1997)).

Pennsylvania Rule of Civil Procedure 1042.3 requires a medical malpractice complainant to file a certificate of merit within sixty days of filing the complaint. See PA. R. CIV. P. 1042.3; Liggon-Redding v. Sugarman, 659 F.3d 258, 259 (3d Cir. 2011). The certificate requires the plaintiff to attest to one of the following:

(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or

(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or

(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

PA. R. CIV. P. 1042.3(a). The Third Circuit has found that the certificate of merit requirement is a substantive rule that must be applied in federal courts exercising diversity jurisdiction. See Liggon-Redding, 659 F.3d at 264-65. Here, Plaintiff filed his own certificates of merit, indicating that expert testimony of an appropriate licensed professional is ...


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