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O'Leary v. Wexford Health Sources, Inc.

United States District Court, E.D. Pennsylvania

January 17, 2017



          John R. Padova, J.

         Plaintiff Shawn Patrick O'Leary has brought this action against Wexford Health Sources, Inc. (“Wexford”) and two doctors employed by Wexford, asserting claims regarding the medical care that Defendants provided to him while he was incarcerated at the State Correctional Institute at Chester, Pennsylvania (“SCI Chester”). Defendants have moved to dismiss O'Leary's First Amended Complaint. For the reasons that follow, the Motion is granted in part and denied in part.


         The First Amended Complaint alleges the following facts. From February 14, 2013 until November 18, 2014, O'Leary was committed to the custody of the Pennsylvania Department of Corrections (“DOC”) for a probation violation. (1st Am. Compl. ¶ 11.) O'Leary was housed at SCI Chester from May 22, 2013 until June 13, 2014, when he was transferred to the State Correctional Institute at Pittsburgh, Pennsylvania (“SCI Pittsburgh”). (Id.) During this time, Wexford was the health care provider for all DOC facilities, including SCI Chester. (Id. ¶ 4.) Wexford employed Defendant Raul Yankelvich, M.D. as a doctor at SCI Chester. (Id. ¶¶ 5-6.) Defendant Stephen Ritz, D.O. was at all relevant times the Corporate Medical Director and Corporate Utilization Management Director for Wexford, with medical overview authority for all of the DOC facilities, including SCI Chester. (Id. ¶ 7.)

         In 2009, O'Leary was involved in a motor vehicle accident and suffered an injury to his right hip joint. (Id. ¶ 36.) In September 2010, he underwent a right total hip replacement due to posttraumatic arthritis of his right hip. (Id.) On March 27, 2014, while he was incarcerated at SCI Chester, O'Leary began to experience pain, swelling, and the draining of pus in the areas of the surgical scar. (Id. at ¶ 12.) He went to SCI Chester's medical unit complaining of right hip pain, redness and swelling. (Id.) He was placed on the referral sheet for the next available doctor. (Id.)

         Two days later, on March 29, 2014, O'Leary was seen by Dr. A.M. Eubanks, who noted that O'Leary's right hip was swollen and tender and had some drainage. (Id. ¶ 13.) On March 31, 2014, O'Leary was treated by Dr. Yankelvich, who stated in O'Leary's progress notes that he was being treated with antibiotics. (Id. ¶ 14.) Dr. Yankelvich also requested a complete blood count, which was done that day; scheduled x-rays of O'Leary's right hip for April 2, 2014; and ordered that the dressing on O'Leary's wound be changed daily for seven days. (Id. ¶¶ 14-15.) On April 7, 2014, Dr. Yankelvich received the April 2, 2014 x-ray report, which showed a possible loosening of the femoral stem (the part of O'Leary's hip replacement that was inserted into his femur). (Id. ¶ 17.) On May 1, 2014, O'Leary reported to sick call and stated that the Elavil and naproxen that he had been prescribed were insufficient to treat his pain. (Id. ¶ 18.) On May 19, 2014, O'Leary again went to sick call and reported right hip swelling and pain and was told to wait for a consultation with an orthopedic specialist. (Id. ¶ 19.) The nurse who examined O'Leary on that occasion noted that the skin on his right hip was warm to the touch, he was having trouble walking, and he was using a cane. (Id. ¶ 20.) O'Leary was prescribed antibiotics. (Id.) O'Leary reported to sick call again on May 20, 2014. (Id.) The doctor recommended that O'Leary's right hip be x-rayed on May 21, 2014, and noted that he was working to obtain a consultation with an orthopedic specialist. (Id.) On May 22, 2014, the prison received the results of O'Leary's x-rays, which showed “loosening around the femoral stem, ” suggesting loosening of arthroplasty. (Id. at ¶ 21.) Dr. Yankelvich wrote in O'Leary's progress notes that he needed an emergency consultation with an orthopedic specialist. (Id. ¶ 22.) On May 23, 2014, Dr. Ritz approved Dr. Yankelvich's recommendation that O'Leary be taken to see an orthopedic specialist. (Id. ¶ 23.)

         On May 29, 2014, O'Leary was taken to the office of orthopedic specialist Evan K. Bash, M.D. for a consultation regarding his right hip. (Id. ¶ 25.) Dr. Bash wrote in his report that O'Leary had intermittent moderate to severe right hip pain that was worsening and was aggravated by movement, sitting, walking and standing. (Id. ¶ 25.) Dr. Bash concluded that O'Leary would “[r]equire[] implant removal and prostalac with 6 weeks IV antibiotics and revision prosthesis.” (Id.) On May 30, 2014, following this consultation, Dr. Yankelvich signed a Physician's Order Form that stated in part “[c]onsult with Orthopedics for Revision of right hip Arthroplasty.” (Id. ¶ 26.) On the same day, Dr. Yankelvich also signed a progress note for O'Leary which stated “Inmate examined - R. hip: redness, tenderness and minimal drainage from surgical scar - Inmate is being treated with Keflex as per consultant.” (Id. ¶ 28 (internal quotation marks omitted).) O'Leary had additional right hip surgical scar drainage on May 31, 2014 and was sent back to Dr. Bash on June 2, 2014. (Id. at ¶¶ 29-30.) Dr. Bash wrote in his June 2, 2014 status note that “[i]t would be in Shawn's best interest to have his right hip revision done at Temple by his original surgeon.” (Id. ¶ 30 (internal quotation marks omitted).)

         On June 13, 2014, O'Leary was transferred to SCI Pittsburgh. (Id. ¶ 31.) He was told by medical personnel employed by Wexford that he had been transferred because Wexford had a contract with hospitals in Pittsburgh. (Id.) On June 17, 2014, O'Leary was seen at SCI Pittsburgh by Patricia Meister, RN, who recorded in O'Leary's progress notes that O'Leary believed that no one knew that he was being transferred to SCI Pittsburgh. (Id. ¶ 32.) O'Leary was seen by Patricia Meister, RN again on June 18, 2014, at which time he complained of hip pain and indicated that he wanted to stop taking his antibiotics. (Id. ¶¶ 33-34.) Nurse Meister talked to him about the need to take his antibiotics so that he could have surgery and he agreed to speak with a doctor before refusing his antibiotics. (Id. ¶ 34.) On June 19, 2014, O'Leary was seen by Dr. Rochelle Rosen, who discussed O'Leary's concerns about taking his antibiotics and also informed O'Leary that he would need to meet with a surgeon before his surgery could be scheduled. (Id. ¶ 35.) Dr. Rosen wrote in O'Leary's progress notes that his hip was infected, he was taking antibiotics, and he was waiting for a consult. (Id.)

         On July 11, 2014, O'Leary was taken to an appointment with orthopedic specialist Brian Moore, M.D. in Pittsburgh, Pennsylvania. (Id. ¶ 36.) Dr. Moore examined O'Leary and found that he used a cane to walk, he was not in acute distress, he had a “long posterolateral incision with about a 2cm sinus tract at the inferior pole, which does show green and yellow purulence actively draining from the wound. He has minimal erythema surrounding the incision.” (Id.) Dr. Moore concluded that O'Leary had an infected right total hip arthroplasty and a potentially loose femoral component. (Id.) Dr. Moore told O'Leary that the best treatment “would be to do a two-stage hip explantation and then re-implantation down the road. We would also have to do several weeks of IV antibiotics through a PICC line after his first surgery.” (Id.) On July 23, 2014, “O'Leary had a surgical procedure of his right hip replacement area . . . performed by Julius J. Huebner, M.D. at Allegheny Hospital in Pittsburgh.” (Id. ¶ 37.) On September 3, 2014, Dr. Huebner performed another surgical procedure of O'Leary's right hip replacement area. (Id.) On November 5, 2014, Dr. Huebner performed a total revision right hip replacement/arthroplasty surgery for O'Leary. (Id.)

         The First Amended Complaint asserts three claims for relief. Count I asserts a claim pursuant to 42 U.S.C. § 1983 against all Defendants for deliberate indifference to O'Leary's serious medical needs in violation of the Eighth Amendment to the United States Constitution; Count II asserts a medical malpractice claim against Dr. Yankelvich pursuant to Pennsylvania common law. The caption of Count III states that it is a claim for medical malpractice brought pursuant to state law, but it does not specify the Defendant(s) against whom this claim has been brought or the basis for the claim. Defendants move to dismiss the First Amended Complaint on five grounds: (1) Plaintiff failed to exhaust his administrative remedies prior to filing suit; (2) the First Amended Complaint was not filed within the time period permitted by Federal Rule of Civil Procedure 15; (3) Count I fails to allege facts that would establish that Defendants were deliberately indifferent to Plaintiff's serious medical needs; (4) Plaintiff failed to file certificates of merit with respect to his medical malpractice claims against Wexford and Dr. Ritz; and (5) the First Amended Complaint fails to allege facts that would establish that Defendants' conduct satisfies the requirements for an award of punitive damages under Pennsylvania law.


         When considering a motion to dismiss pursuant to Rule 12(b)(6), we “consider only the complaint, exhibits attached to the complaint, [and] matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.”[1]Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations of the complaint as true and “construe the complaint in the light most favorable to the plaintiff.” DelRio-Mocci v. Connolly Props., Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011)). Legal conclusions, however, receive no deference, as the court is “‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Wood v. Moss, 134 S.Ct. 2056, 2065 n.5 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         A plaintiff's pleading obligation is to set forth “a short and plain statement of the claim, ” which gives “‘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) (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2), and Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint must contain “‘sufficient factual matter to show that the claim is facially plausible, ' thus enabling ‘the court to draw the reasonable inference that the defendant is liable for [the] misconduct alleged.'” Warren Gen. Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “A complaint that pleads facts ‘merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief.'” Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S. at 678). In the end, we will grant a motion to dismiss brought pursuant to Rule 12(b)(6) if the factual allegations in the complaint are not sufficient “‘to raise a right to relief above the speculative level.'” W. Run Student Hous. Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (quoting Twombly, 550 U.S. at 555).

         III. ...

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