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Hernandez v. Palackovich

United States District Court, M.D. Pennsylvania

February 8, 2017

CLAUDIO HERNANDEZ, Plaintiff
v.
JOHN A. PALAKOVICH, et al., Defendants

          MEMORANDUM

          Kane Judge

         This matter is before the Court on a renewed motion for summary judgment filed on March 11, 2014 by remaining Defendant Dr. Ronald Long, M.D. (Doc. No. 204.) Upon consideration of the arguments raised by the parties in their briefs, for the reasons provided herein, the Court will grant the motion for summary judgment and close the above-captioned case.

         I. BACKGROUND

         A. Procedural Background

         This 42 U.S.C. § 1983 civil rights and medical negligence action was initiated on August 15, 2005 upon the filing of a complaint by Plaintiff Claudio Hernandez, a former inmate incarcerated at the State Correctional Institution at Smithfield in Huntingdon, Pennsylvania (“SCI-Smithfield”). (Doc. No. 1.) In his complaint, Plaintiff asserted violations of the Eighth Amendment to the United States Constitution and pendent state law claims of medical malpractice and intentional infliction of emotional distress against numerous SCI-Smithfield administrators and health care providers. (Id.) Shortly after commencing this action, Defendants moved to dismiss Plaintiff's complaint through the filing of separate motions to dismiss (Doc. Nos. 19, 21, 22), which were eventually granted by this Court on November 10, 2010. (Doc. No. 99.) Concurrent with granting Defendants' motions to dismiss, the Court permitted Plaintiff leave to file an amended complaint. (Id.)

         Plaintiff filed a counseled three-count amended complaint setting forth a claim of deliberate indifference in violation of the Eighth Amendment and related claims under Pennsylvania law against the following Defendants: Superintendent John A. Palackovich, Deputy Superintendent Kormanic, Health Care Administrator George Weaver, and treating physician Dr. Ronald Long, M.D. (Doc. No. 105.) The factual allegations forming the basis of this operative pleading concern the medical treatment Plaintiff received while incarcerated at SCI-Smithfield. (Id.) Plaintiff asserts that Defendants exhibited deliberate indifference to his serious medical needs in violation of the Eighth Amendment by delaying necessary surgical intervention for an infection he developed following cataract surgery on his left eye at Holy Spirit Hospital. (Id.)

         On January 28, 2011, Defendant Long filed an answer to the amended complaint with affirmative defenses, which he subsequently amended to include failure to exhaust administrative remedies as an additional affirmative defense. (Doc. Nos. 106, 117.) On February 7, 2011, Defendants Palackovich, Kormanic, and Weaver collectively moved for dismissal of the amended complaint. (Doc. No. 108.) In a Memorandum and Order dated September 12, 2011, the Court granted in part and denied in part the February 7, 2011 motion to dismiss. (Doc. No. 119.) Specifically, the Court granted the motion to dismiss with respect to all claims against Defendants Palackovich and Kormanic, and denied the motion to dismiss with respect to the claims against Defendant Weaver. (Id.) On September 21, 2011, Defendant Weaver answered the amended complaint. (Doc. No. 120.)

         At the conclusion of the discovery period, remaining Defendants Long and Weaver individually filed motions for summary judgment. (Doc. Nos. 142, 146.) In response to these motions, Plaintiff moved to strike the declarations of two witnesses as well as other various exhibits offered in support of Defendants' summary judgment motions. (Doc. Nos. 182, 188.) Based on the arguments raised by Plaintiff in his motions to strike, the Court reopened the discovery period for forty-five (45) days for the purpose of deposing the two witnesses and denied the pending motions for summary judgment without prejudice to Defendants renewing and/or supplementing their motions following the expiration of the limited discovery period. (Doc. No. 201.)

         Defendants Long and Weaver filed renewed motions for summary judgment on March 11 and 13, 2014, respectively. (Doc. Nos. 207, 208.) On May 14, 2015, the Court denied summary judgment only as it related to two limited bases for dismissal proffered by Defendants: namely, Plaintiff's failure to exhaust administrative remedies and failure to submit expert witness testimony as to his actual injuries. (Doc. No. 224.) In conjunction with its denial of summary judgment on those narrow grounds, the Court deferred its adjudication of Defendants' remaining arguments in their respective summary judgment motions pending settlement discussions before Magistrate Judge Carlson. (Id.) Settlement was achieved as to Defendant Weaver. (Doc. No. 229.) However, settlement was not reached with Defendant Long.

         Accordingly, in light of the procedural posture of this case, the Court is now tasked with addressing the remaining grounds of dismissal raised by Defendant Long in his pending renewed motion for summary judgment.[1] Specifically, remaining in this action are Plaintiff's Eighth Amendment deliberate indifference, medical malpractice, and negligent infliction of emotional distress claims against Defendant Long.

         In the renewed motion for summary judgment, Defendant Long invites the Court to grant summary adjudication in his favor as a matter of law on the basis that the evidentiary material appended to his dispositive motion establishes that Plaintiff received continued access to medical care. Plaintiff, in opposition to Defendant's motion for summary judgment, argues that a genuine issue of material fact exists as to whether Defendant Long, in his capacity as both Plaintiff's treating physician and site medical director, acted with deliberate indifference in cancelling a surgical procedure scheduled for January 7, 2005 as a result of Plaintiff's refusal to give informed consent. This motion is fully briefed and is now ripe for adjudication on the merits.

         B. Evidentiary Record

         This civil rights and medical negligence action is grounded on allegations that Defendant Long, Plaintiff's treating physician and the site medical director for SCI-Smithfield, [2] deliberately obstructed Plaintiff from receiving necessary surgical intervention for a non-medical reason.

         Plaintiff's medical and optometric history germane to the instant motion for summary judgment is as follows. At all relevant times to this action, Plaintiff, a native of Puerto Rico, was committed to the custody of the Pennsylvania Department of Corrections. (Doc. No. 207-2 at 1.) Plaintiff arrived at SCI-Smithfield with a number of chronic conditions and specifically needed a follow-up ophthalmology appointment scheduled to address complaints of pain, blurriness, and loss of vision in his left eye. On January 8, 2004, Plaintiff was evaluated by Christopher Patitsas, M.D., an ophthalmologist at an offsite medical facility. (Id. at 3.) Following this initial consultation, Dr. Patitsas recommended, on an urgent basis, that Plaintiff undergo a B-scan ultrasonography of the left eye to rule out a detached retina or tumor. (Doc. No. 169-1 at 20.) On January 9, 2004, Defendant Long approved the recommendation and arranged for immediate diagnostic testing of Plaintiff to include a B-scan ultrasound at J.C. Blair Memorial Hospital the same day. (Doc. No. 150-1 at 3.) The results of that diagnostic testing revealed “[f]indings consistent with cataract. However, there is also multi-loculated cystic abnormality around the lens and diffusely echogenic abnormality of the vitreous. This is concerning for a tumor. A retinal detachment is unlikely.” (Doc. No. 169-1 at 22.) Defendant Long reviewed the findings with Plaintiff on January 12, 2004 and shortly thereafter, referred Plaintiff to Dr. Thomas R. Pheasant, M.D., an ophthalmologist with Retina Consultants, for a consultation. (Id. at 23.) Plaintiff was evaluated by Dr. Pheasant on February 5, 2004. (Id. at 26.) Dr. Pheasant reported that Plaintiff's left eye “shows angle closure from 11:30-5:00, with a mature cataract. An ultrasound examination of the left eye was done, and it shows diffuse vitreous hemorrhage/vitreous debris. It is difficult to be certain whether a retinal detachment is present or not.” (Doc. No. 170-1 at 1.) On the basis of that diagnosis, Dr. Pheasant requested authorization in a letter to Defendant Long for Plaintiff “to have a pars plans lesectomy, a vitrectomy and a possible scleral buckle, with a fluid-gas exchange and endolaser photocoagulation if the posterior segment appears to be salvageable.” (Id.) Dr. Pheasant remarked in his report that “[t]here is a good chance that this eye has sustained trauma in the past and we are looking at the effects of the old trauma. This may therefore not be a repairable situation. . . . It would appear that this eye will never have useful vision and the eye may, in fact, go phthisical (a small, blind, shrunken eyeball) whether intervention is undertaken or not.” (Id.) He suggested that if Plaintiff decided to forego surgical intervention, he could be followed by Dr. Patitsas. (Id.)

         Following this consult, Defendant Long arranged for Plaintiff to meet with an attending physician at SCI-Smithfield on February 23, 2004 to discuss Dr. Pheasant's recommendations. On Plaintiff's request, the surgical procedure was approved and scheduled for March 22, 2004 at Holy Spirit Hospital. (Doc. No. 207-2 at 6.) Ocular surgery was performed without incident. (Doc. No. 150-1 at 7.) On March 29, 2004, Plaintiff was medically cleared to return to SCI-Smithfield. (Doc. No. 150-1 at 9-10.) Upon returning to SCI-Smithfield, Plaintiff was scheduled for and attended routine follow-up appointments with an offsite ophthalmologist on March 31, 2004, and with Dr. Pheasant on April 7, 2004, on approval from Defendant Long. (Doc. Nos. 170-3 at 1, 152-1 at 10.) On July 7, 2004, Defendant Long authorized a routine follow-up appointment with Dr. Pheasant for September 1, 2004. (Doc. No. 170-5 at 1.) Upon examining Plaintiff at that appointment, Dr. Pheasant recommended continuing the Pred Forte eye drops previously prescribed to him and referred Plaintiff to Dr. Patitsas for an eye examination and for the fitting of polycarbonate safety glasses. (Id.) Defendant Long promptly approved the recommendation of Dr. Pheasant and arranged for Plaintiff to be seen by Dr. Patitsas on October 29, 2004.

         On September 30, 2004, prior to Plaintiff's October 29, 2004 offsite eye examination with Dr. Patitsas, Plaintiff presented at the clinic with complaints of “tearing, burning and cloudy vision” in his left eye. (Doc. No. 150-1 at 14.) A physician assistant, observing a severe infection upon examination, arranged for Plaintiff to be evaluated by Dr. Patitsas that afternoon. (Doc. No. 170-7 at 1-2.) Based on his examination of Plaintiff, Dr. Patitsas prescribed sulfacetamide eye drops and recommended a follow-up appointment. (Id.) On October 1, 2004, at Defendant Long's direction, the recommended medications were ordered for Plaintiff.

         The October 29, 2004 follow-up consultation with Dr. Patitsas, previously approved by Defendant Long, occurred as originally scheduled. During that scheduled appointment, Dr. Patitsas made additional modifications to Plaintiff's prescriptions and raised with Plaintiff the possibility of enucleation (removal of the eye) as a treatment option. (Doc. No. 170-6 at 1.) It is undisputed that Dr. Patitsas informed Plaintiff at that time as to what the surgical procedure would entail. Indeed, Plaintiff's testified at his deposition that the surgeon “explained to [him] that since the eye didn't work any[more], that he had to take the eye out. And he was going to give [him] a plastic one with the computer. With the computer, he was going to make it look like the other eye.”[3] (Doc. No. 207-25 at 39.) That same day, Defendant Long approved Dr. Patitsas' recommended treatment plan. (Doc. No. 152-1 at 15.) On November 10, 2004, Defendant Long met with Plaintiff to discuss the recent consult with Dr. Patitsas, specifically enucleation of Plaintiff's left eye. (Doc. No. 207-2 at 15.)

         On November 16, 2004, Defendant Long referred Plaintiff for a surgical consult with Dr. John J. Schietroma, M.D., of Oculoplastic Consultants of Central PA, P.C., which was scheduled for December 16, 2004. (Doc. No. 170-8 at 1.) During the surgical consult, Dr. Schietroma discussed the evisceration procedure with Plaintiff and obtained Plaintiff's written consent for the release of his medical records. (Id.; Doc. No. 207 at 4.) At the conclusion of the appointment, Dr. Schietroma forwarded a referral letter to Defendant Long apprising him of the following:

As you know, this 58-year-old has a blind phthisical left eye, with some degree of discomfort. He has seen Dr. [Patitsas], and a possibility of enucleation has been discussed. On examination, the eye is phthisical and cornea is opaque. He is currently using Atropine 1 drop to the left eye [twice a day], and Tobradex 1 drop to the left eye [4 times per day].
I believe that the appropriate procedure for Mr. Hernandez would be an evisceration of the left eye. This would involve removing the contents of the eye, but leaving the scleral shell in place. And ocular implant would be placed within the scleral shell.
This procedure can be performed as an outpatient at the Mount Nittany Surgery Center. I can perform this procedure on January 7, 200[5]. If this date is okay with you we will try to make arrangements and send the necessary paperwork.

(Doc. No. 170-9 at 1.) That same day, Defendant Long approved the procedure and coordinated the scheduling of surgery with Dr. Schietroma for January 7, 2005. (Doc. 170-10 at 1.)

         On December 22, 2004, in anticipation of surgery, Dr. Schietroma's office sent a surgery packet to SCI-Smithfield, which contained a surgical consent form requiring Plaintiff's signature. (Doc. No. 177-1 at 1.) On December 24, 2004, Nancy Merlini, a registered nurse at SCI-Smithfield, presented the consent form issued by Dr. Schietroma's office to Plaintiff for his signature. (Doc. No. 150-1 at 16.) However, Plaintiff refused to give his written consent. Consequently, based on Plaintiff's response, Ms. Merlini provided Plaintiff with a DC-462 refusal form to sign, which is furnished to inmates “when they are refusing recommended treatment.”[4] (Doc. No. 175-1 at 98:19.) However, the progress notes state that Plaintiff refused to sign “anything till he speaks [to] his lawyer.” (Doc. No. 150-1 at 16.)[5] Ms. Merlini's progress notes additionally provide, in shorthand form notation, her assessment of “Knowledge Deficit, ” and her plan to “notify MD.” (Doc. No. 150-1 at 16.)

         Defendant Long was not privy to Ms. Merlini's December 22, 2004 conversation with Plaintiff regarding the consent for surgery form, nor did he independently endeavor to obtain Plaintiff's written consent for surgery, as it was his understanding that if an outpatient surgical procedure was scheduled offsite, the offsite medical provider would obtain consent for that procedure “when they go over the risks and benefits of the surgery.” (Doc. No. 207-26 at 44:20-22.) Indeed, Defendant Long testified that he never saw the consent for surgery form that was provided to Plaintiff, and is unaware of whether Ms. Merlini read the form aloud to Plaintiff. (Id. at 97:20-25; 98:1.) The record is also devoid of evidence supporting that Defendant Long was made aware of Ms. Merlini's progress note entry at that time.[6] While the record evidence does not support that Defendant Long reviewed Ms. Merlini's progress note, however, Defendant Long concedes that he did receive notification of Plaintiff's refusal to consent to surgery by way of the DC-462 form prepared by Ms. Merlini that he co-signed in his capacity as site medical director on December 22, 2004. (Id. at 96:16-21.)

         Plaintiff's medical chart reveals that on January 3, 2005, Donna Beeler, a registered nurse with SCI-Smithfield approached Plaintiff again with the consent form and DC-462 form. She logged the following progress note detailing her communications with Plaintiff on this occasion:

Refuses to sign consent - Refuses to sign refusal.- Repeatedly says “My lawyer told me not to sign anything” - then states “If I sign anything it might hurt my law suit.” - States he doesn't want to talk with anyone else- Cannot reason [with] him re: need for surgery. [Assessment:] none [Plan:] CR[.][7]

(Doc. No. 150-1 at 16.) Similar to Ms. Merlini, Ms. Beeler documented Plaintiff's refusal to release the institution from liability on the DC-462 form itself. Specifically, she described the nature of the treatment and the consequences of refusing the treatment as “Removal of the left eye to prevent spread of vision loss to right eye. By refusing this surgery I am at risk of becoming totally blind.” (Doc. No. 171-2 at 1.) On the signature line of the DC-462 form where Plaintiff was to sign, Ms. Beeler wrote “Refused to sign 1-3-05” and provided her signature on the “Attending Health Care Provider” signature line. (Id.) The record reflects that this form was signed by Dr. Joseph Romeo, M.D., an attending physician at SCI-Smithfield.

         According to Plaintiff, he was confronted by a nurse on only one occasion regarding the consent for surgery form and the nurse refused to explain what the consent form said. (Doc. 207-25 at 29.) He submits that he refused to sign the form because he wanted to speak with his lawyer, as he “didn't know what [he] was about to sign.”[8] (Id. at 31.) Notably, Plaintiff submits that he did not ask to speak with a doctor and did not request that a Spanish-speaking interpreter be made available to him for purposes of translating the contents of the form because he was “quickly sent . . . back to [his] block.” (Id.)

         On January 5, 2005, Defendant Long noted in Plaintiff's medical chart that Plaintiff had refused enucleation of his left eye. (Doc. No. 170-10 at 1.) Consequently, Plaintiff's surgery was cancelled. Thereafter, Plaintiff continued to be followed by medical personnel for various chronic conditions in conjunction with his scheduled ophthalmologist appointments and benefited from medication management, which included the regular reordering of Tobradex eye drops. (See Doc. No. 150-1 at 17-40.) While Plaintiff's medical chart is devoid of any discernable reference to complaints from Plaintiff of pain in his left eye after his surgery was cancelled, Plaintiff testified in his deposition that he did complain about his left eye in 2005 more than once to an unidentified physician.[9] Notwithstanding this arguably ...


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