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Tretter v. Shiptoski

United States District Court, Middle District of Pennsylvania

April 21, 2015

SHERRI TRETTER, Admin. of the Estate of WILLIAM BENDER, Plaintiff
BRIAN SHIPTOSKI, et al., Defendants



Presently ripe for disposition is a motion (Doc. 36) for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) filed on behalf of remaining Commonwealth defendants Scharff, Houser, Robinson, Wolfe and Zaremba[1] and a motion (Doc. 18) to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of Shiptoski, Schorschinsky, Stanish, Kosierowski, Diaz, Sterling and PHS Correctional HealthCare (“PHS”). For the reasons set forth below, the court will grant the motions in part and deny the motions in part.

I. Allegations of the complaint

Plaintiff Sherri Tretter (“plaintiff”), brings this action in her capacity as the Administratrix of the Estate of William Bender (“Bender”) a state inmate who was incarcerated at the State Correctional Institution at Frackville prior to his death. Allegedly, beginning in January of 2009, Bender began complaining to each of the defendants of pain in his groin and a swollen left testicle. (Doc. 1, ¶ 32). “Between January 2009 and August 6, 2009 . . . PHS, the physician defendants and the nursing defendants were on notice of Mr. Bender’s need for immediate medical attention and, with deliberate indifference, failed to take steps to ensure that he received the necessary care and treatment.” (Id. at ¶ 57).

On February 17, 2009, Bender was seen by defendants Scharff and Wolfe but neither defendant documented his complaint of swollen testicles and no treatment was offered. (Id. at ¶ 35). On March 11, 2009, he was seen by defendant Robinson who failed to document Bender’s repeated complaints of swollen testicles and failed to provide any treatment. (Id. at ¶ 36). “Despite the symptoms presented by Mr. Bender, defendants failed to undertake prompt and appropriate medical care and attention and/or failed to ensure that prompt and appropriate medical care and attention was provided to Mr. Bender. Instead, Mr. Bender was ignored and told that he would not be provided treatment. Further, he was not given an evaluation until August 6, 2009.” (Id. at ¶ 49).

On August 6, 2009, defendant Sterling noted that Bender’s right testicle could not be located and his left testicle moved posteriorly and documented a “grapefruit size mass” in his left testicle. (Id. at ¶¶ 38 59). Defendant Houser noted a scrotal growth and defendant Shiptoski recorded Bender’s swollen scrotal area and indicated that it had been swollen for the past eight months. (Id. at ¶¶ 39-40). An August 22, 2009 ultrasound revealed a “left testicle absent and left hemiscrotum enlarged and filled with large complex mass . . . Clinical correlation is suggested and further evaluation with MRI.” (Id. at ¶ 60). Defendant Stanish “signed off on the radiologist report.” (Id. at ¶ 61). On August 24, 2009, defendant Schorschinsky made a referral for a urologic consult. (Id. at ¶ 62).

No follow-up treatment was provided. On February 9, 2010, blood work was ordered by defendant Sterling following a triennial physical examination. (Id. at ¶ 65). On February 22, 2010, defendant Shiptoski noted a left inguinal hernia. (Id. at ¶ 66). The blood work “indicated the possibility of a liver carcinoma and showed an elevated LDH which is an indiction of acute chronic tissue damage.” (Id. at ¶ 68). A second round of blood work was completed and it, too, indicated carcinoma and chronic tissue damage. (Id. at ¶ 69).

On March 17, 2010, defendant Sterling referred Bender for a urologic consult to rule out hepatic carcinoma. (Id. at ¶ 70). On March 24, 2010, Bender reported to defendant Shiptoski that he was having difficulty urinating. Defendant Diaz scheduled him for an additional diagnostic study. (Id. at ¶ 71). A March 25, 2010 ultrasound revealed abnormalities in the liver and pancreas and recommended that a CT scan be performed. (Id. at ¶ 72). On March 26, 2010, defendant Shiptoski documented scrotal pain and discomfort. (Id. at ¶ 73).

On April 2, 2010, defendant Shiptoski ordered Tylenol for Bender. (Id. at ¶ 74). On April 4, 2010, Bender complained to defendant Zaremba of abdominal pain and reported that he had a hernia. (Id. at ¶ 75). On April 5, 2010, defendants Sterling and Stanish decided that because a liver mass was indicated, Bender should be transferred to St Catherine’s Medical Center Emergency Room. (Id. at ¶¶ 76-77). An ultrasound of his scrotum and a CT scan of his pelvis and abdomen revealed a “large left testicle calcification, no blood flow and multiple masses consistent with metatastic disease, most likely testicular carcinoma.” (Id. at ¶ 79). He was transported back to the prison and was administered two Vicodin and cleared to return to the cell block by defendant Zaremba. (Id. at ¶ 80). The following day, defendant Sterling documented Bender’s metatstatic cancer and approved his transport to Altoona Hospital. (Id. at ¶ 81). “On April 7, 2010, Mr. Bender underwent a left radical orchiectomy and was found to have multiple low attenuation lesions throughout his liver consistent with diffuse hepatic metatastic disease, extensive retroperitoneal adenopathy with multiple nodal masses present, and a large testicular mass, widespread pulmonary parenchymal metatases with extensive lymphovascular invasion.” (Id. at ¶ 83). He was diagnosed with Stage III malignant non-seminoma left testicle cancer that spread to his liver, abdomen and lungs. (Id. at ¶¶ 87-88). He began chemotherapy within a week of the surgery. (Id. at ¶ 84). He continued to undergo treatment until his death on July 8, 2011. (Id. at ¶ 86).

It is alleged that various policies of PHS, including inter alia, deliberate indifference to specialized medical care, deliberate indifference to and interference with necessary treatment with medical specialists, and deliberate indifference to follow-up medical care, directly and proximately violated Bender’s constitutional rights. (Doc. 1-1, at ¶¶ 186-92).

II. Motion for Judgment on the Pleadings

A. Standard of Review

When deciding a Rule 12(c) motion for judgment on the pleadings, a district court must view the facts and inferences to be drawn from the pleadings in the light most favorable to the non-moving party. Green v. Fund Asset Mgmt., L.P., 245 F.3d 214, 220 (3d Cir. 2001). The motion can be granted only if no relief could be afforded under any set of facts that could be provided. Turbe v. Government of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991); see also Cardio–Medical Associates, Ltd. v. Crozer–Chester Med. Ctr., 536 F.Supp. 1065, 1072 (E.D. Pa.1982) (“If a complaint contains even the most basic of allegations that, when read with great liberality, could justify plaintiffs claim for relief, motions for judgment on the pleadings should be denied.”). However, the court need not adopt conclusory allegations or statements of law. In re General Motors Class E Stock Buyout Sec. Litig., 694 F.Supp. 1119, 1125 (D. Del. 1988). Judgment on the ...

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