United States District Court, M.D. Pennsylvania
NICHOLAS F. BELLEZZA, Plaintiff,
TERENCE F. DUFFY, M.D., Defendant.
REPORT AND RECOMMENDATION
E. SCHWAB CHIEF UNITED STATES MAGISTRATE JUDGE
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.
Background and Procedural History.
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).
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.
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 would not try any injections in either
Bellezza's back or neck because that procedure, as well,
was too risky. Id.
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.”
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.
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.”
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.
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.
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