United States District Court, E.D. Pennsylvania
R. Padova, J.
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.
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.)
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.)
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.)
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).)
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.)
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.
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.
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.”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)).
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