MCCARTHY v. COUNTY OF BUCKS et al

Filing 102

MEMORANDUM AND/OR OPINION RE: DR. DAVID DAVIS'S MOTION FOR SUMMARY JUDGMENT. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 10/28/2010. 10/29/2010 ENTERED AND COPIES E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KEVIN MCCARTHY, Plaintiff v. COUNTY OF BUCKS, et al. Defendants : : : : : : :

Civil Case

No. 08-1123

M E M O R A N D U M OPINION S te n g e l, J. October 28, 2010

In March, 2006, Mr. McCarthy was a pre-trial detainee incarcerated at the Bucks C o u n ty Correctional Facility. While incarcerated, Mr. McCarthy suffered from a w ris t/a rm abscess, which required surgical removal of the abscess, hospitalization, and re s u lte d in "some degree of permanent pain and dysfunction." Mr. McCarthy has filed a second amended complaint against the County of Bucks, T h o m a s French, Eleanor M. Travers, Bucks County Health Department, and Dr. David D a v is .1 Dr. David Davis, the medical director at the Bucks County Correctional Facility, f ile d a partial motion for summary judgment requesting judgment in his favor for the c la im Dr. Davis violated 42 U.S.C.A. § 1983, the negligent infliction of emotional d is tre s s claim, and the punitive damages claim. For the reasons set forth below, I will g ra n t the motion.

Edward J. Donnelly, Harris Gubernick, John Doe 1, and John Doe 2 are no longer defendants in this case. See Docket, McCarthy v. Cnty. of Bucks, No. 08-1123 (E.D. Pa.). John Doe 3 has been identified as the Bucks County Health Department. Id.

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I.

BACKGROUND O n March 7, 2006, Kevin McCarthy turned himself into the Bristol Township

P o lic e Department and the Bucks County Sheriff's Department took him into custody.2 M r. McCarthy was incarcerated at the Bucks County Correctional Facility. See D e f e n d a n t's Statement of Facts at ¶ 2; Plaintiff's Statement of Facts at ¶ 2. Dr. David Davis is Board certified in family medicine, is Board eligible in a d d ic tio n medicine, and has completed a fellowship in pain management. Id. at ¶ 3. He is the medical director at the Bucks County Correctional Facility, where he works as a f u ll-tim e , independent contractor. Id. at ¶¶ 4-5. In 2006, Dr. Davis worked on Tuesdays f ro m 8:00 a.m. to 6:00 p.m., and Thursdays and Fridays from 8:00 a.m. to 5:30 p.m. See D e f e n d a n t's Statement of Facts at ¶ 8; Plaintiff's Statement of Facts at ¶ 8. He routinely s a w 35 to 40 patients a day. Id. at ¶ 9. Dr. Davis was on call seven days a week and, if a n u rs e had a question about an order for a patient, the nurse could reach Dr. Davis on his p a g e r. Id. at ¶ 10. P u rs u a n t to the Department of Public Health Manual, used by Bucks County C o rre c tio n a l Facility, the medical staff must complete a full assessment upon all inmates w ith in fourteen days of incarceration. Plaintiff's Statement of Facts at Exh. F. If an in m a te has an injury, he is not admitted until medical personnel has seen him. Id. at Exh.
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Defendant Dr. Davis's Concise Statement of Material Facts at ¶ 1, McCarthy v. Cnty. of Bucks, No. 08-1123 (E.D. Pa. filed June 2, 2010); Plaintiff Kevin McCarthy's Response to Defendant Dr. Davis's Concise Statement of Undisputed Facts at ¶ 1, McCarthy v. Cnty. of Bucks, No. 08-1123 (E.D. Pa. filed July 2, 2010). 2

ss. At Dr. Davis's deposition he stated a nurse examines each inmate within 48 hours of in c a rc e ra tio n and processing and Dr. Davis examines each inmate within two weeks of in c a rc e ra tio n . See Defendant's Statement of Facts at Exh. D at 110-11. Bucks County Correctional Facility is staffed by nurses twenty-four hours per day. Id. at Exh. D at 14; see Defendant's Statement of Facts at ¶ 12; Plaintiff's Statement of F a c ts at ¶ 12. It has a contract with Doylestown Hospital for admission of all prison p a tie n ts .3 See Defendant's Statement of Facts at ¶ 13; Plaintiff's Statement of Facts at ¶ 13. Bucks County Correctional Facility's policy is to fingerprint both hands of a new in m a te . Mr. McCarthy's left hand was not fingerprinted. See Plaintiff's Statement of F a c ts at Exh. K. Officer John Bailie, the officer who fingerprinted Mr. McCarthy, stated "I usually ask a person if your hands hurt you . . . if they tell me yes, then I say are you w illin g to get fingerprinted? And if they say no, I will say okay. And I don't fingerprint th e m ." Id. at Exh. I at 47. Officer Bailie stated the only other reasons he would not f in g e rp rin t a hand are if the hand was missing fingers or if the prisoner was unruly. If u n ru ly, the prisoner would not sign the fingerprint card. Id. at 48, 51. Mr. McCarthy s ig n e d the fingerprint card. See Plaintiff's Statement of Facts at Exh. K. W h e n Mr. McCarthy was incarcerated on March 7, 2006, a classification report w a s completed. See Defendant's Statement of Facts at ¶ 16; Plaintiff's Statement of

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Mr. McCarthy, however, initially was taken to Abington Hospital. 3

Facts at ¶ 16. Mr. McCarthy's primary classification was drug detoxification and the re p o rt noted daily use of heroin, Methadone, and Xanax. See Defendant's Statement of F a c ts at Exh. B. It stated Mr. McCarthy had reflex sympathetic dystrophy,4 his left arm w a s ripped off two years ago, he had limited motion in his hand, arm, and legs, and he to o k Benacane and Methadone. Id. It also stated he was under a doctor's care for his left a rm injury and for high blood pressure. Id. O n March 7, 2006, a nurse saw Mr. McCarthy. She took his blood pressure, which w a s 160/114, recorded a pulse of 80, and recorded a temperature of 98.2. See D e f e n d a n t's Statement of Facts at ¶ 20; Plaintiff's Statement of Facts at ¶ 20. The nurse m a d e a notation that Mr. McCarthy had taken Xanax and Methadone earlier that day. Id. a t ¶ 21. The nurse called Dr. Davis who ordered Cardizem, which is used to treat high b lo o d pressure. Id. at ¶ 22. O n March 8, 2006 and March 9, 2006, Mr. McCarthy was transported to and from th e Bucks County Courthouse. See Defendant's Statement of Facts at Exh. G. O n March 9, 2006 at 1:00 a.m., Mr. McCarthy was found in his cell huddled over w ith chest pain. See Defendant's Statement of Facts at ¶ 26; Plaintiff's Statement of F a c ts at ¶ 26. The officers contacted the dispensary. Nurse Mullen noted Mr. McCarthy

"Reflex sympathetic dystrophy syndrome . . . is a condition that features a group of typical symptoms, including pain (often "burning" type), tenderness, and swelling of an extremity associated with varying degrees of sweating, warmth and/or coolness, flushing, discoloration, and shiny skin." MedicineNet.com, Reflex Sympathetic Dystrophy Syndrome, http://www.medicinenet.com/reflex_sympathetic_dystrophy_syndrome/article.htm (last visited Oct. 12, 2010). 4

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made complaints of chest wall pain and was grasping at his mid-sternum, he had g o o s e f le sh and rhinitis. See Plaintiff's Statement of Facts at Exh. L. The nurse called Dr. D a v is , who ordered an opiate detoxification protocol and a Benzodiazepine protocol for X a n a x withdrawal. See Defendant's Statement of Facts at H. O n March 9, 2006, Mr. McCarthy underwent a medical history and physical a s s e s sm e n t. See Defendant's Statement of Facts at ¶ 28; Plaintiff's Statement of Facts at ¶ 28. The medical history and physical assessment reported Mr. McCarthy suffered reflex s ym p a th e tic dystrophy and a skin graft in his left arm and noted he had been electrocuted in 2003, which resulted in a fasciotomy5 requiring a skin graft from his leg. He denied o p e n wounds. Mr. McCarthy reported taking Methadone, Xanax, and Neurotin and re p o rte d using heroin. See Defendant's Statement of Facts at Ex. I. Mr. McCarthy te s tif ie d that, although there were no open wounds, the handcuffs left a noticeable scar. See Plaintiff's Statement of Facts at Exh. B at 173. Dr. Davis diagnosed Mr. McCarthy a s a "thirty-nine year old white male with pneumonia. On Methadone withdrawal and h yp e rte n s io n ." See Defendant's Statement of Facts at Exh. I. Mr. McCarthy maintains he to ld Dr. Davis he "was handcuffed and my left arm is killing me," but Dr. Davis "didn't p a y too much attention about it at all." See Plaintiff's Statement of Facts at Exh. B at 94. Following the medical history and physical assessment, Dr. Davis ordered Catapres, a

"Fasciotomy is a surgical procedure that cuts away the fascia to relieve tension or pressure." The Free Dictionary, Medical Dictionary, Fasciotomy, http://medical-dictionary.thefreedictionary.com/fasciotomy (last visited on Oct. 7, 2010). 5

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drug used to treat hypertension. The order also stated the doctor would re-check Mr. M c C a rth y in 24 hours, and Mr. McCarthy was to have all meals in his cell, use an A lb u te ro l inhaler, and was placed on bottom-bunk status. See Defendant's Statement of F a c ts at ¶ 32; Plaintiff's Statement of Facts at ¶ 32. On March 9, 2006, Mr. McCarthy had chest discomfort but was able to breath. Officer Ramochak called the dispensary, and Mr. McCarthy was instructed to lie down.6 O n March 9, 2006, Dr. Davis gave a telephone order for a chest x-ray to be performed in th e morning. See Defendant's Statement of Facts at ¶ 34; Plaintiff's Statement of Facts at ¶ 34. The nurse noted Mr. McCarthy was to have a chest x-ray in the morning and was to re m a in on regular medical watch. Id. at ¶ 35. Late March 9, 2006 or early March 10, 2006, Mr. McCarthy complained of chest p a in extending to his right shoulder, right arm, and back. Id. at ¶ 36. He was brought to th e dispensary. Id. The nurse noted his skin was "warm, dry" and noted "scattered rh o n c h i."7 See Defendant's Statement of Facts at Exh. E; Plaintiff's Statement of Facts at E x h . O. The nurse also noted he was going through detoxification for Xanax, heroin, and M e th a d o n e . Id. The nurse noted Mr. McCarthy would be placed on acute medical watch a n d would see the physician and get an x-ray in the morning. Id.

Dr. Davis testified that he did not see this, or any, note written while Mr. McCarthy was on medical watch. Plaintiff's Statement of Facts at Exh. C at 86-87. Scattered rhonchi "is a coarse rattling sound which occurs due to secretions in the bronchial airways." WD, Scattered Rhonchi, http://www.wrongdiagnosis.com/sym/ scattered_rhonchi.htm (last visited Oct. 14, 2010). 6
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On March 10, 2006 at 1:15 p.m., Mr. McCarthy complained of fluid in his chest a n d was vomiting and shaking. See Plaintiff's Statement of Facts at Exh. S. Officer B a k e r called the dispensary. Id. On March 10, 2006 at 2:15 p.m., Officer Harper noted M r. McCarthy complained of chest pain and constant vomiting. The dispensary told O f f ic e r Harper it would see Mr. McCarthy later. See Defendant's Statement of Facts at E x h . Q; Plaintiff's Statement of Facts at Exh. bb. At 6:00 p.m. Officer Harper noted he c a lle d the dispensary and called for any available nurse. He was informed the nurses w e re taking a break and they would not do anything until after the break. He noted Nurse G ra b o w s k i called and stated the nurses "are not doing anything" and "[Mr. McCarthy] is f a k in g ." Plaintiff's Statement of Facts at Exh. U. Officer Harper contacted Lieutenant L a n d is and reported Mr. McCarthy was on the floor and shaking, but the nurses would n o t respond. Defendant's Statement of Facts at Exh.Q; Plaintiff's Statement of Facts at E x h . dd. Officer Harper called a medical emergency. Id. The progress notes following th e medical emergency indicate Nurse Grabowski obtained Mr. McCarthy's vital signs. See Defendant's Statement of Facts at Exh. M. The medical emergency was cleared at 6 :1 5 p.m. Defendant's Statement of Facts at ¶ 65; Plaintiff's Statement of Facts at ¶ 65. Dr. Davis saw Mr. McCarthy on March 10, 2006. Dr. Davis noted Mr. McCarthy h a d bilateral pneumonia, positive dyspnea,8 and that Mr. McCarthy had a temperature of Dyspnea is "[d]ifficult or labored breathing; shortness of breath. Dyspnea is a sign of serious disease of the airway, lungs, or heart." MedicineNet.com, Definition of Dyspnea, http://www.medterms.com/script/main/art.asp?articlekey=3145 (last visited Oct. 13, 2010).
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101.4 degrees. See Defendant's Statement of Facts at ¶ 40; Plaintiff's Statement of Facts a t ¶ 40. Mr. McCarthy underwent a chest x-ray on March 10, 2006, the results of which w e re normal. Id. at ¶ 41. On March 11, 2006, a detoxification flow sheet was initiated to chart Mr. M c C a rth y's progress and included a column for physical complaints. See Defendant's S ta te m e n t of Facts at Ex. M 197-201. No physical complaints were documented on the f lo w sheet for March 11, 2006 or March 12, 2006. Id. Mr. McCarthy testified he said he h a d left arm pain, had a lot of anxiety, and could not deal with the pain. See Plaintiff's S ta te m e n t of Facts at Exh. B at 81-82, 91. On March 13, 2006, the detoxification flow sheet documents a physical complaint o f left arm pain. Defendant's Statement of Facts at ¶ 47; Plaintiff's Statement of Facts at ¶ 47. On March 13, 2006 at 11:35 a.m., Mr. McCarthy was taken to the dispensary. Nurse Mazurek noted Mr. McCarthy's left wrist was red and warm to touch and noted M r. McCarthy was experiencing difficulty straightening his fingers. Defendant's S ta te m e n t of Facts at ¶ 49; Plaintiff's Statement of Facts at ¶ 49. N u rs e Mazurek called Dr. Davis, who instructed the nurse to order a brace for Mr. M c C a rth y. Id. at ¶ 50. Dr. Davis testified the brace was for a prior injury/pre-existing c o n d itio n and the brace ordered was from Mr. McCarthy's home. See Defendant's S ta te m e n t of Facts at Exh. J at 80-81. Mr. McCarthy testified he needed a brace in 2000, b u t did not need the brace after the hospital discharged him in 2000. See Plaintiff's

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Statement of Facts at Exh. B at 107. Dr. Davis also ordered Catapres. See Defendant's S ta te m e n t of Facts at ¶ 52; Plaintiff's Statement of Facts at ¶ 52. O n March 14, 2006 at 12:20 p.m., Nurse Mazurek noted Mr. McCarthy's te m p e ra tu re was 101.4 degrees and noted "left wrist red and swollen - cellulitis? 9 To see D r. Davis." See id. at ¶ 53; Plaintiff's Statement of Facts at Exh. W. Dr. Davis saw Mr. M c C a rth y on March 14, 2006. See Defendant's Statement of Facts at ¶ 54; Plaintiff's S ta te m e n t of Facts at ¶ 54. He noted Mr. McCarthy's wrist was "positive for erythema,1 0 m ild edema,1 1 thirteen centimeters by fifteen centimeters, left wrist." Id. Mr. McCarthy h a d a temperature of 100 degrees. See Plaintiff's Statement of Facts at Exh. Z. Dr. Davis to o k a photograph of Mr. McCarthy's left arm/wrist. See Defendant's Statement of Facts a t ¶ 55; Plaintiff's Statement of Facts at ¶ 55. Dr. Davis's notes state Mr. McCarthy s u f f e re d from a "crush injury with compartment syndrome1 2 ­ c o m p a rtm e n t syndrome

"Cellulitis is a spreading bacterial infection of the skin and tissues beneath the skin. Cellulitis usually begins as a small area of tenderness, swelling, and redness. As this red area begins to enlarge, the person may develop a fever -- sometimes with chills and sweats -- and swollen lymph nodes (`swollen glands') near the area of infected skin." MedicineNet.com, Cellulitis, http://www.medicinenet.com/cellulitis/article.htm (last visited Oct. 12, 2010) Erythema is defined as "[a] redness of the skin from inflammation . . . ." MedicineNet.com, Definition of Erythema, http://www.medterms.com/script/main/art.asp? articlekey=3306 (last visited Oct. 12, 2010). "Edema is observable swelling from fluid accumulation in body tissues. . . . The swelling is the result of the accumulation of excess fluid under the skin in the spaces within the tissues." MedicineNet.com, Edema, http://www.medicinenet.com/edema/article.htm (last visited Oct. 12, 2010). "Compartment syndrome is a condition that occurs when injury causes generalized painful swelling and increased pressure within a compartment to the point that blood cannot 9
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secondary to concrete truck accident; chest positive for bronchi bilateral bronchi; negative f o r rales; pulse oximetry, ninety-eight percent." Id. at ¶ 56; Defendant's Statement of F a c ts at Exh. O at 62-63. Dr. Davis's differential diagnosis included: compartment s yn d ro m e , osteomyelitis,1 3 and cellulitis of the left wrist. See Defendant's Statement of F a c ts at ¶ 57; Plaintiff's Statement of Facts at ¶ 57. Dr. Davis placed Mr. McCarthy on m e d ic a l watch and ordered Bactrim, Naprosyn, Tylenol, and Prednisone. Id. at ¶ 58. Dr. D a v is was concerned for infection and inflammation and Mr. McCarthy had informed Dr. D a v is that his wrist was painful. See Plaintiff's Statement of Facts at Exh. C at 87-88. O n March 15, 2006, a nurse saw Mr. McCarthy and re-applied the left wrist ace b a n d a g e wrap. See Defendant's Statement of Facts at ¶ 61; Plaintiff's Statement of Facts a t ¶ 61. On March 16, 2006, a notation on the order sheet states "consult Dr. Takai," who w a s an orthopedic surgeon who specialized in the hand. See Plaintiff's Statement of F a c ts at Exh. Y. Mr. McCarthy, however, was referred to Dr. John Wolf,1 4 an orthopedic s u rg e o n who does not specialize in the hand. See Defendant's Statement of Facts at Exh. Q . This referral was marked urgent. Id. Mr. McCarthy complained to Dr. Wolf that his le f t arm was swollen and painful with contracture of the left hand/wrist as a result of

supply the muscles and nerves with oxygen and nutrients." MedicineNet.com, Compartment Syndrome, http://www.medicinenet.com/compartment_syndrome/article.htm (last visited Oct. 12, 2010). Osteomyelitis is infection in the bone. MedicineNet.com, Osteomyelitis, http://www.medicinenet.com/osteomyelitis/article.htm (last visited Oct. 12, 2010).
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Although the referral states "Dr. Wolfe," the doctor's name is "Dr. John Wolf." 10

handcuffing on March 7, 2006. See Defendant's Statement of Facts at Exh. R. Dr. W o lf 's evaluation states Mr. McCarthy's "fist is clutched and his fingers are digging into th e palm of his hand." See Defendant's Statement of Facts at Exh. R; Plaintiff's S ta te m e n t of Facts at Exh. gg. It notes "[t]here is a bit of redness over the radial side of h is wrist and forearm, and indeed his hand is ball down in full flexion with his fingers in f u ll flexion and he had pain on touching him anywhere." Id. His wrist was "large and a little bit red." Id. Dr. Wolf's summary states the injury was handcuff related. See P la in tif f 's Statement of Facts at Exh. ff. Dr. Wolf noted Mr. McCarthy needed further e v a lu a tio n by a hand surgeon, but the three hand surgeons were "tied up in the operating ro o m " on March 16, 2006. See Defendant's Statement of Facts at Exh. R; Plaintiff's S ta te m e n t of Facts at Exh. gg. On March 16, 2006, Dr. Davis saw Mr. McCarthy and noted Mr. McCarthy re c e iv e d "no care" from Dr. Wolf. See Defendant's Statement of Facts at Exh. S; D e f e n d a n t's Statement of Facts at ¶ 70; Plaintiff's Statement of Facts at ¶ 70. Dr. Davis o rd e re d a consult with Dr. Gregory Gallant for March 17, 2010 and ordered Valium, T o ra d o l, and complete bed rest. See Defendant's Statement of Facts at Exh. T. March 1 6 , 2006 was the last time Dr. Davis saw Mr. McCarthy as a patient at Bucks County C o rre c tio n a l Facility. See Defendant's Statement of Facts at ¶ 76; Plaintiff's Statement o f Facts at ¶ 76. O n March 17, 2006, Mr. McCarthy was taken to Doylestown Hospital, where he

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saw Dr. Gallant and was admitted to the hospital. Id. at ¶ 77. He presented with left u p p e r extremity pain, redness, swelling, and a clinched fist. See Plaintiff's Statement of F a c ts at Exh. ii. Dr. Gallant noted Mr. McCarthy could not move his wrist or fingers due to secondary pain and he questioned an infection in Mr. McCarthy's left arm. Id. The M R I indicated an abscess1 5 had formed. See Plaintiff's Statement of Facts at Exh. jj. Dr. G a lla n t recommended immediate incision and drainage of Mr. McCarthy's left forearm a n d wrist abscess, with debridement and "urgent admission to the hospital." Id.; P la in tif f 's Statement of Facts at Exh. ii. Dr. Gallant noted it was "most likely the worst a b s c e s s I have seen in my 11 year career thus far." See Plaintiff's Statement of Facts at E x h . jj. Dr. Gallant noted he explained to Mr. McCarthy that he would "have some d e g re e of permanent pain and dysfunction in the arm and is also at risk for further in f e c tio n ." See Plaintiff's Statement of Facts at Exh. kk. M r. McCarthy presented two expert reports. Dr. Michael R. Greenberg 1 6 reviewed th e record and found, among other items, that Dr. Davis and the Bucks County C o rre c tio n a l Facility medical department "failed to recognize the signs of a systematic in f e c tio n including fever, pain, fatigue, shaking and abnormal vital signs," "failed to

"An abscess is a tender, easily pressed mass generally surrounded by a colored area from pink to deep red." WebMD, Abscess, http://www.webmd.com/a-to-z-guides/abcess (last visited Oct. 12, 2010). Dr. Greenberg is the medical director and a clinical professor at Lock Haven University Physician Assistant Program, commissioner for the Accreditation Review Commission for the Physician Assistant, medical director of the Clinton County Correctional Facility, and medical director of the Centre County Correctional Facility. 12
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adequately diagnose and treat Mr. McCarthy's abscess which [sic] the immediate cause f o r surgical intervention and permanent injury," and "Mr. McCarthy's healing was in h ib ite d by Dr. Davis['s] inappropriate prescription of high doses of glucocorticoids." See Plaintiff's Statement of Facts at Exh. X. Dr. Daisy Ann Rodriguez of the Injury R e h a b ilita tio n Centers of Pennsylvania found with a reasonable degree of medical c e rta in ty that "Mr McCarthy sustained a severe and permanent injury to his left hand, w ris t and arm when a Bucks County sheriff placed handcuffs too tightly on his left wrist." Dr. Rodriquez opines that this "created a chain of events including, hospitalization, [and] in c is io n and drainage . . . of an abscess . . . ." Id. at Exh. dd. C o u n t I of Mr. McCarthy's complaint raises a § 1983 claim against all defendants, c o u n t III alleges a negligence claim against Dr. Davis, count IV alleges a n e g lig e n t/in te n tio n a l infliction of emotional distress claim against Dr. Davis, John Doe 1, a n d John Doe 3, and count VI alleges a punitive damages claim against Dr. Davis, John D o e 1, and John Doe 3. D r. Davis filed a partial motion for summary judgment requesting judgment in his f a v o r for count I, count IV, and count VI. He does not challenge count III.

II.

STANDARD S u m m a ry judgment is appropriate "if the pleadings, the discovery and disclosure

m a te ria ls on file, and any affidavits show that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" when "a reasonable jury could return a verdict for the nonmoving p a rty" based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 248 (1986). A factual dispute is "material" when it "might affect the outcome of the c a s e under the governing law." Id. A party seeking summary judgment initially bears responsibility for informing the c o u rt of the basis for its motion and identifying those portions of the record that "it b e lie v e s demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof o n a particular issue at trial, the moving party's initial Celotex burden can be met simply b y demonstrating to the district court that "there is an absence of evidence to support the n o n -m o v in g party's case." Celotex, 477 U.S. at 325. After the moving party has met its in itia l burden, the adverse party's response "must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 5 6 (e )(2 ). Summary judgment is therefore appropriate when the non-moving party fails to re b u t by making a factual showing that is "sufficient to establish the existence of an e le m e n t essential to that party's case, and on which that party will bear the burden of p ro o f at trial." Celotex, 477 U.S. at 322. U n d e r Rule 56 of the Federal Rules of Civil Procedure, the court must draw "all ju s tif ia b le inferences" in favor of the non-moving party. Anderson, 477 U.S. at 255. The

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court must decide "not whether . . . the evidence unmistakably favors one side or the other b u t whether a fair-minded jury could return a verdict for the plaintiff on the evidence p re s e n te d ." Id. at 252. If the non-moving party has produced more than a "mere scintilla o f evidence" demonstrating a genuine issue of material fact, then the court may not credit th e moving party's "version of events against the opponent, even if the quantity of the [ m o v in g party's] evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. B M W of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III.

D ISC U S S IO N A. F o u r te e n th Amendment Claim ­ Failure to Provide Medical Treatment

M r. McCarthy was a pre-trial detainee at the Bucks County Correctional Facility. He alleges Dr. Davis violated the Fourteenth Amendment. For Fourteenth Amendment c la im s alleging a failure to provide medical care, the Eighth Amendment standard p ro v id e s a floor below which the medical treatment of pretrial detainees cannot fall. Hubbard v. Taylor, 399 F.3d 150, 165-66 (3d Cir. 2005) (citing City of Revere v. Mass. G e n . Hosp., 463 U.S. 239, 244 (2005)).1 7 To state an Eighth Amendment inadequate tre a tm e n t claim, a plaintiff must state (1) he has a serious medical need, and (2) the

"Eighth Amendment scrutiny is appropriate only after . . . [conviction]." Hubbard, 399 F.3d at 165 (quoting City of Revere, 463 U.S. at 244). For pretrial detainees, the Eighth Amendment is relevant "only because it establishe[s] a floor." Id. (quoting City of Revere, 463 U.S. at 244). The Supreme Court has stated "the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner." Id. (quoting City of Revere, 463 U.S. at 244). 15

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defendants were deliberately indifferent to that need. Estelle v. Gamble, 429 U.S. 97, 106 (1 9 7 6 ); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1 9 8 6 ). "A medical need is `serious,'. . . if it is `one that has been diagnosed by a physician a s requiring treatment or one that is so obvious that a lay person would easily recognize th e necessity for a doctor's attention.'" Monmouth Cnty Corr. Institutional Inmates, 834 F .2 d at 347 (quoting Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 8 6 0 (3d Cir. 1981)). D e lib e ra te indifference "requires `obduracy and wantonness,' which has been lik e n e d to conduct that includes recklessness or a conscious disregard of a serious risk." Rouse v. Plaintier, 182 F.3d 192, 197 (3d Cir. 1999) (internal citations omitted). A p la in tif f can prove a defendant's knowledge of a risk with circumstantial evidence. Beers-Capitol v. Whetzel, 256 F.3d 120,131 (3d Cir. 2001). "[A] factfinder may c o n c lu d e that a prison official knew of a substantial risk from the very fact that the risk w a s obvious." Id. (quoting Farmers v. Brennan, 511 U.S. 825, 842 (1994)) (alteration in o rig in a l). " [ C ]o n sid e ra b le latitude" is afforded "to prison medical authorities in the diagnosis a n d treatment of the medical problems of inmate patients." Inmates of Allegheny Cnty. J a il v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Medical malpractice and negligence do n o t establish the defendants are deliberately indifferent. Estelle, 429 U.S. at 106.

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Similarly, mere disagreement about the proper medical treatment will not support an E ig h th Amendment claim. Monmouth Cnty. Corr. Institutional. Inmates, 834 F.2d at 346. However, deliberate indifference may be established where prison officials "deny re a s o n a b le requests for medical treatment . . . and such denial exposes the inmate `to u n d u e suffering or the threat of tangible residual injury.'" Id. (quoting Westlake v. Lucas, 5 3 7 F.2d 857, 860 (6th Cir. 1976)). In addition, deliberate indifference is demonstrated w h e re "prison authorities prevent an inmate from receiving recommended treatment for s e rio u s medical needs or deny access to a physician capable of evaluating the need for s u c h treatment." Id. (quoting Inmates of Allegheny Cnty. Jail, 612 F.2d at 762). D r. Davis presents evidence Mr. McCarthy received medical treatment almost d a ily from the date of his incarceration on March 7, 2010 through the date of his h o s p ita liz a tio n on March 17, 2010. Mr. McCarthy visited the dispensary, was visited by n u rs e s , and was seen by Dr. Davis. He was treated for drug withdrawal, hypertension, a n d pneumonia. He received treatment for his left wrist after documentation of his c o m p la in ts . The documents do not indicate current wrist/arm pain until March 13, 2006. After the complaints, Dr. Davis treated the wrist with an ace bandage, placed Mr. M c C a rth y on medical watch, and ordered Bactrim, Naprosyn, Tylenol, and Prednisone. In addition, he ordered a consultation with an orthopedist and a consultation with an o rth o p e d ist who specializes in the hand. M r. McCarthy argues his left hand was not fingerprinted because of his injury, he

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informed the person completing his intake form his hand was injured when he was h a n d c u f f e d ,1 8 and he complained about wrist pain to the nurses and to Dr. Davis. In a d d itio n , Dr. Davis was aware Mr. McCarthy suffered from reflex sympathetic dystrophy. Mr. McCarthy presents two expert reports which find Dr. Davis and the Bucks County C o rre c tio n a l Facility provided inadequate care and caused harm to Mr. McCarthy. In a d d itio n , Mr. McCarthy argues the guards and nurses made notations regarding Mr. M c C a rth y's symptoms of systemic infection arising from the failure to treat Mr. M c C a rth y's abscess. Dr. Davis ignored these notations. Mr. McCarthy argues, although D r. Davis treated Mr. McCarthy for hypertension and withdrawal, he did not treat Mr. M c C a rth y for the wrist injury. I will grant Dr. Davis's motion for summary judgment for the Fourteenth A m e n d m e n t claim because Mr. McCarthy cannot establish a genuine issue of material f a c t. The evidence presented by Mr. McCarthy fails to establish Dr. Davis was d e lib e ra te ly indifferent. The record is replete with evidence of medical treatment. Mr. M c C a rth y visited the dispensary, and the nurses and Dr. Davis saw Mr. McCarthy at the d is p e n s a ry and in his cell. Dr. Davis treated Mr. McCarthy for drug withdrawal and h yp e rte n s io n . When Mr. McCarthy expressed pain in his wrist and arm, Dr. Davis treated M r. McCarthy for the injury with an ace bandage, medicine, a consultation with an

He told the person that completed the form that his left wrist/hand "was bigger than a basketball" and stated it "was obvious because they wouldn't even touch it to fingerprint it." 18

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orthopedist, and a consultation with a hand surgeon when the surgeon was next available. Mr. McCarthy cannot establish Dr. Davis acted with "recklessness or a conscious d is re g a rd of a serious risk." The evidence presented by Mr. McCarthy might, at most, e s ta b lis h medical malpractice or negligence, which is not sufficient to establish deliberate in d if f e re n c e . See Estelle, 429 U.S. at 106.

B.

N e g lig e n t Infliction of Emotional Distress

T o establish a negligent infliction of emotional distress claim, the plaintiff must s h o w he suffered physical injury. Armstrong v. Paoli Mem'l Hosp., 633 A.2d 605, 609 (P a . Super. Ct. 1993); accord Toney v. Chester Cnty. Hosp., 961 A.2d 192, 200 (Pa. S u p e r. Ct. 2008) ("plaintiff must have experienced physical injury as a result of having b e e n exposed to the traumatic event"). The "physical harm must accompany emotional d is tre s s ." Id. "Temporary fright, nervous shock, nausea, grief, rage, and humiliation if tra n s ito ry are not compensable harm; but, long continued nausea or headaches, repeated h ys te ric a l attacks or mental aberration are compensable injuries." Id. M r. McCarthy alleges he suffered a severe injury because Dr. Davis failed to p ro v id e adequate care.1 9 He presents evidence he was vomiting and shaking, had a fever, a n d had pain radiating to his arm. He was hospitalized and, after he was released, was
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Plaintiff Kevin McCarthy's Memorandum of Law in Support of His Response to the Defendant Dr. Davis's Motion for Partial Summary Judgment, Incorrectly Entitled Motion for Summary Judgment at 14 of 18, McCarthy v. Cnty. of Bucks, No. 08-1123 (E.D. Pa. filed July 2, 2010) [hereinafter Plaintiff's Response]. 19

treated at a rehabilitation center. He argues his reflex sympathetic dystrophy was e x a c e rb a te d , and he cannot walk. Mr. McCarthy maintains he "continues to suffer, both p h ys ic a lly and mentally, as a result of the lack of care at the hands of Dr. Davis." Plaintiff's Response at 15 of 18. M r. McCarthy cannot state a negligent infliction of emotional distress claim b e c a u s e the physical injury did not result from the emotional distress.2 0 Mr. McCarthy w a s a very sick man. If he sustained any physical injury caused by any defendant, it w o u ld have been from negligence in his medical treatment, which is far from clear on this re c o rd . In the unlikely event Mr. McCarthy can prove a medical malpractice claim, he lik e ly can present evidence of his mental health as an element of damages.

C.

Intentional Infliction of Emotional Distress

M r. McCarthy agreed to withdraw his claim of intentional infliction of emotional d is tre s s against Dr. Davis.

D.

P u n itiv e Damages

F o r a § 1983 plaintiff to receive a punitive damages award "the defendant's c o n d u c t must be, at a minimum, reckless or callous. Punitive damages might also be

Mr. McCarthy alleges he sufficiently states a cause of action for negligent infliction of emotional distress because he is a foreseeable plaintiff and he suffered physical injury as a result of Dr. Davis's negligence. See Plaintiff's Response at 14 of 18. 20

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allowed if the conduct is intentional or motivated by an evil motive, but the defendant's a c tio n need not necessarily meet this higher standard." Savarese v. Agriss, 883 F.2d 1 1 9 4 , 1204 (3d Cir. 1989). Under Pennsylvania law, punitive damages are available " w h e n the plaintiff has established that the defendant has acted in an outrageous fashion d u e to either `the defendant's evil motive or his reckless indifference to the rights of o th e rs.'" Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005) (quoting Martin v. J o h n s -M a n v ille Corp., 494 A.2d 1088, 1098 n.14 (Pa. 1985)). T h is case presents a record of regular medical attention to Mr. McCarthy's medical is su e s. There is no basis for any jury to find Dr. Davis's conduct to be outrageous. I will g ra n t Dr. Davis's summary judgment motion regarding punitive damages because Mr. M c C a rth y has no evidence at all from which a jury could find Dr. Davis was reckless or c a llo u s.

IV.

C O N C L U S IO N I will grant Dr. Davis's motion for summary judgment. I will grant summary

ju d g m e n t on the § 1983 claim because Mr. McCarthy fails to establish a jury could find D r. Davis was deliberately indifferent. I will grant summary judgment on the negligent in f lic tio n of emotional distress claim because Mr. McCarthy has alleged physical harm re s u lte d in his physical impairments, not that emotional distress resulted in his physical im p a irm e n ts. I will grant summary judgment as to Mr. McCarthy's punitive damages

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claim because Mr. McCarthy cannot establish Dr. Davis acted recklessly. A n appropriate order follows.

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