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Bellezza v. Duffy

United States District Court, M.D. Pennsylvania

July 12, 2019

NICHOLAS F. BELLEZZA, Plaintiff,
v.
TERENCE F. DUFFY, M.D., Defendant.

          Mariani Judge

          REPORT AND RECOMMENDATION

          SUSAN E. SCHWAB CHIEF UNITED STATES MAGISTRATE JUDGE

         I. Introduction.

         This is a medical malpractice action. Plaintiff Nicholas F. Bellezza (“Bellezza”) claims defendant Terence F. Duffy M.D. (“Duffy”) was negligent by failing to take steps necessary to complete a more through testing of his spine. Before the Court is Duffy's motion to dismiss Bellezza's amended complaint. Because Bellezza has not pleaded jurisdiction, we recommend that the Court grant Duffy's motion to dismiss. We also recommend that because Bellezza is pro se, he be granted leave to file a second amended complaint that complies with the Federal Rules of Civil Procedure.

         II. Background and Procedural History.

         Bellezza began this action on October 16, 2017, by filing a complaint that named Duffy as the defendant and that instructed us to “[p]lease see attached letter.” Doc. 1 at 1-2. For the reasons fully explained in our Report and Recommendation (doc. 22), adopted by Judge Mariani (doc. 26), the Court dismissed Bellezza's complaint but granted him leave to amend, which he did on February 7, 2019 (doc. 24).

         Bellezza alleges the following in his amended complaint. Doc. 24. Bellezza sustained a “[s]erious fall” in 2001. Id. at 4. After this fall, he consulted Duffy. Id. Duffy told him that he needed an MRI of his lumbar spine and that was the only test Duffy ordered. Id. When the results came back, Duffy told Bellezza that it showed he had significant damage to his lumbar spine, including herniated and bulged discs, damaged facet joints, and degenerative disc disease. Id. Bellezza viewed Duffy as “a professional, ” and he saw no reason to question his medical expertise. Id. Because he saw no reason to question Duffy, Bellezza determined that there was no reason to obtain a second opinion. Id.

         Bellezza's pain grew more intense with each passing year. Id. at 1. He managed to work and live with the “intense pain” for years because he needed to provide a living for his family. Id. After Bellezza moved to Florida, one of his doctors suggested that he see an Orthopedic surgeon in relation to his pain. Id. at 2. After reviewing MRIs of Bellezza's lumbar and cervical spine, the doctor informed him that he did not feel he was a good candidate for surgery because it would be too risky of a procedure. Id. This is exactly what another Orthopedic surgeon had informed him in Pennsylvania. Id. The doctor[1] would not try any injections in either Bellezza's back or neck because that procedure, as well, was too risky. Id.

         In October of 2015, Bellezza had another serious fall. Id. The fall occurred because of “intense shooting pain, coming from [his] back and going down [his] legs and into his feet.” Id. This pain had occurred before but never resulted in this serious of a fall. Id. His doctor recommended that he undergo a series of CT scans. Id. at 3. Bellezza underwent CT scans on his entire spine, including cervical, thoracic, lumbar, and he even had scans of his head done. Id. After the CT scans were completed, his doctor told him to consult with a Rheumatologist “as soon as possible.” Id.

         The rheumatologist informed Bellezza that he had a “very serious spinal cord disease.” Id. The rheumatologist also told him that his range of motion is “very seriously limited” and that he had this disease for a long time. Id. After Bellezza informed the doctor that he had a serious fall in 2001, the doctor asked him if he had a full spinal MRI or CT scan done at that time. Id. Bellezza informed the doctor that he had not and that only a lumbar MRI was completed. Id. The doctor then informed him that he should have had a complete spinal diagnosis done in 2001. Id. The doctor further stated that had a thoracic MRI or CT scan been completed in 2001, it would have shown if the disease was already present or if the injury caused the serious damage to his spine. Id.

         This doctor further informed Bellezza that he had actually broken his back. Id. But Bellezza was unaware he had done so because it was never diagnosed properly since a complete spinal diagnosis was never completed. Id. The doctor confirmed Bellezza's assertion that had he not had this second serious fall, he would have never “known the full extent of the damages that occurred to [his] [e]ntire [c]ervical [s]pine many years ago.” Id. The doctor expressed to Bellezza that now there is nothing that can be done because his entire spinal cord is “completely fused together, ” resulting in his limited mobility. Id. As a direct result of this, Bellezza has been diagnosed with “Ankylosing Spondylitis.” Id. Ankylosing Spondylitis is a “very progressive disease, ” and Bellezza's back will “never get better only worse.” Id.

         On February 8, 2019, Duffy filed a Notice of Intention to Enter Judgment of Non Pros on Professional Liability Claim (doc. 25) notifying Bellezza that he intended to seek a Judgment of Non Pros (i.e., dismissal) if Bellezza did not file a Certificate of Merit (“COM”) within 30 days in accordance with Pennsylvania Rule of Civil Procedure 1042.3. Thereafter, on February 27, 2019, Duffy filed a motion to dismiss the amended complaint and a brief in support of that motion. See doc. 27.

         On March 4, 2019, Bellezza filed a motion for an extension of time suggesting that he needed more time to obtain medical records. Doc. 28. While the motion did not set forth from what deadline Bellezza was seeking an extension of time, it did reference an attached letter from defense counsel that referenced the Notice of Intention to Enter Judgment of Non Pros on Professional Liability Claim. Id. Construing Bellezza's motion as a motion for an extension of time to file a brief in opposition to the motion to dismiss, we granted the motion and ordered Bellezza to file a brief in opposition to the motion to dismiss on or before April 5, 2019. Doc. 29.

         Upon further reflection, we concluded that Bellezza was seeking an extension of time to file a COM, and we granted Bellezza an extension of time to file his COM until May 10, 2019. Doc. 30. And since we extended the deadline for Bellezza to file a COM to May 10, 2019, we also extended his ...


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