Illes v. Kcomt et al
Filing
53
MEMORANDUM AND ORDER - AND NOW, this 10th day of July, 2012, upon con. of deft.'s mtns. for SJ & to dismiss 3 , & plf.'s mtn. for SJ 36 , it is ordered that: 1. Deft.'s mtn. for SJ on Ct. II of plf.'s complt. is GRANTED w/out l eave to amend. 2. Deft.'s mtn. for SJ on Cts. III & IV of plf.'s complt. is DENIED. 3. Deft.'s mtn. to dismiss Cts. III & IV of plf.'s complt. 1 is GRANTED w/out prejudice. 4. Deft.'s mtn. to dismiss plf.'s request for prel. injunc. is GRANTED. 5. Plf.'s mtn. for SJ 36 is DENIED. 6. Plf. is granted leave to amend Cts. III & IV of his complt. w/in 21 days hereof, if he desires to do so. (See memo for complete details.) Signed by Honorable William W. Caldwell on 7/10/12. (am, )
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD W. ILLES, SR., M.D.
Plaintiff
vs.
DR. BARRY BEAVEN et al.,
Defendants
:
:
:
: CIVIL NO. 1:12-CV-0395
:
:
:
:
:
:
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:
MEMORANDUM
I.
Introduction
This matter involves the medical treatment Plaintiff, Richard Illes, Sr., M.D.,
received while temporarily housed at the State Correctional Institution at Camp Hill (“SCICamp Hill”). Presently before the court are motions to dismiss and for summary
judgment filed by Defendant, Dr. Christian Kcomt, and Plaintiff.
II.
Background
In a motion to dismiss under Fed. R. Civ. P. 12(b)(6), we must take all
factual allegations in the complaint as true. Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008)). Plaintiff sets out the following facts in his complaint. Plaintiff, an inmate at the
State Correctional Institution at Albion (“SCI-Albion”), was temporarily housed at SCI-
Camp Hill from August 5, 2010 through August 31, 2010. (Doc. 1-2, ¶¶ 1, 7). Plaintiff
had a history of severe degenerative joint disease and had been diagnosed with chronic
pain syndrome, neuropathic pain, and chronic radiculopathy. (Id. at ¶ 8). The doctors at
SCI-Albion treated these conditions with Celebrex, an anti-inflammatory agent, and
Ultram, a pain medication. (Id. at ¶ 8). Plaintiff alleges he also suffered from lower back
pain caused by a ruptured disc, peptic ulcer disease, gastritis, and gastro-esophageal
reflux disease. (Id. at ¶¶ 11, 14). Plaintiff was diagnosed with depression prior to his
transfer to SCI-Camp Hill, which was being treated with Lexapro, an anti-depressant. (Id.
at ¶ 9).
On August 6, 2010, Plaintiff was seen by Defendant Sheila McGinnis, a
physician’s assistant on staff at SCI-Camp Hill. (Id. at ¶¶ 6, 17). McGinnis discontinued
the Ultram and Celebrex and did not order any substitute pain medication. (Id. at ¶¶ 17,
20). Plaintiff asserts that McGinnis did not perform any physical examination, review his
medical records, or consult any of Plaintiff’s regular treating physicians at SCI-Albion.
(Id. at ¶ 19). Dr. Underwood supervised McGinnis and co-signed her orders to
discontinue the Ultram and Celebrex without performing any exams or reviewing
Plaintiff’s medical records. (Id. at ¶ 22). As a result of the discontinuation of the pain
medications, Plaintiff had increased pain in his back, leg, and shoulders, was unable to
sleep, and suffered a recurrence of his gastritis and peptic ulcer disease. (Id. at ¶¶ 23,
26, 27, 28).
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Though Plaintiff does not give an exact date, at some point during his stay
at SCI-Camp Hill, Defendant Kcomt discontinued Plaintiff’s anti-depressant medication,
Lexapro. Prior to the discontinuation, Dr. Kcomt did not examine or interview Plaintiff or
review Plaintiff’s psychiatric records. (Id. at ¶¶ 46-48). Later, Plaintiff informed Dr.
Kcomt of his history of severe refractory depression and a suicide attempt. (Id. at ¶ 49).
As a result of the discontinuation of Lexapro, Plaintiff suffered increased depression,
anxiety, headaches, lethargy, insomnia, and increased degenerative joint disease and
neuropathic pain. (Id. at ¶¶ 46-48).
Plaintiff also alleges that during his stay at SCI-Camp Hill, Dr. Kcomt
violated his duty of confidentiality by requiring Plaintiff to discuss at his cell door his
history of depression, his suicide attempt, and his need for anti-depressant medication.
(Id. at ¶ 49).
On January 9, 2010, Plaintiff filed the instant action in the Court of
Common Pleas of Cumberland County, alleging medical malpractice, breach of
confidentiality, and violation of the Eighth Amendment. Defendants removed the action
on March 1, 2012. On March 8, 2012, Defendant Kcomt filed a motion to dismiss and for
summary judgment. On May 7, 2012, Plaintiff filed a motion for summary judgment for
his claims against Dr. Underwood.
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III.
Discussion
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Under Rule
12(b)(6), we must “accept all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain “a short and
plain statement of the claim,” FED. R. CIV. P. 8(a)(2), and detailed factual allegations are
not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964,
167 L.Ed.2d. 929 (2007), a complaint must plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570, 127 S.Ct. 1955 at 1974. “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.” Ashcroft v. Iqbal, 566 U.S. 662, 129
S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.)
“[L]abels and conclusions” are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 196465, and a court “‘is not bound to accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case omitted).
In resolving the motion to dismiss, we thus “conduct a two-part analysis.”
Fowler, 578 F.3d at 210. First, we separate the factual elements from the legal
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elements and disregard the legal conclusions. Id. at 210-11. Second, we “determine
whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
‘plausible claim for relief.’” Id. at 211 (quoted case omitted).
We will examine the motions for summary judgment under the wellestablished standard. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir.
2008) (“Summary judgment is only appropriate if there are no genuine issues of material
fact.”). We “must view all evidence and draw all inferences in the light most favorable to
the non-moving party“ and we will only grant the motion “if no reasonable juror could find
for the non-movant.” Id. “Material facts are those ‘that could affect the outcome’ of the
proceeding, and ‘a dispute about a material fact is genuine if the evidence is sufficient to
permit a reasonable jury to return a verdict for the nonmoving party.’” Roth v. Norfalco,
651 F.3d 367, 373 (3d Cir. 2011) (citing Lamont v. New Jersey, 637 F.3d 177, 181 (3d
Cir. 2011).
B. Medical Malpractice Claim Against Defendant Kcomt
Defendant Kcomt argues that he is entitled to summary judgment on
Plaintiff’s medical malpractice claim. To establish a medical malpractice claim in
Pennsylvania, a plaintiff must present an expert witness who will testify “to a reasonable
degree of medical certainty, that the acts of the physician deviated from accepted
medical standards, and that such deviation was the proximate cause of the harm
suffered.” Hakeem v. Salaam, 260 Fed. App’x 432, 434 (3d Cir. 2008) (nonprecedential)
(citing Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 891 (Pa. 1990)). An expert
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witness is not required “when the matter is so simple or the lack of care so obvious as to
be within the range of experience and comprehension of non-professional persons.” Id.
(citing Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 n. 1 (Pa. 1997)).
Pennsylvania Rule of Civil Procedure 1042.3 requires a medical
malpractice complainant to file a certificate of merit within sixty days of filing the
complaint. See PA. R. CIV. P. 1042.3; Liggon-Redding v. Sugarman, 659 F.3d 258, 259
(3d Cir. 2011). The certificate requires the plaintiff to attest to one of the following:
(1) an appropriate licensed professional has supplied a written statement
that there exists a reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional standards and that
such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional
standard is based solely on allegations that other licensed professionals
for whom this defendant is responsible deviated from an acceptable
professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
PA. R. CIV. P. 1042.3. The Third Circuit has found that the certificate of merit requirement
is a substantive rule that must be applied in federal courts exercising diversity
jurisdiction. See Liggon-Redding, 659 F.3d at 264-65. Here, Plaintiff filed a certificate of
merit, indicating that expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim against Defendant Kcomt. Kcomt now moves
for summary judgment, asserting that Plaintiff cannot prove his medical malpractice claim
without expert testimony.
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Plaintiff argues that he will not need to present expert testimony regarding
standard of care and causation. He contends that the standard of care is within the
comprehension and common knowledge of a lay jury. Plaintiff asserts he will be able to
present a treatise, the Physician’s Desk Reference, to prove causation. He argues that
this treatise, along with his testimony, will be sufficient to prove his claim. Finally, Plaintiff
argues that if the court determines an expert is necessary, that limiting the access to the
courts by indigents who cannot afford experts violates the Pennsylvania and U.S.
constitutions.
We agree with Defendant Kcomt that the standard of care for a psychiatrist
discontinuing medication for a patient with severe depression, and the causal connection
between the discontinuation and any harm suffered by Plaintiff, are not within the range
of experience and comprehension of non-professional persons. See McCool v. Dep’t. of
Corr. of Pa., 984 A.2d 565, 571 (Pa. Commw. Ct. 2009) (finding malpractice cases that
do not require expert testimony generally involve “gross incompetence”); Grossman v.
Barke, 2005 Pa Super 45, 868 A.2d 561, 566 (Pa. Super. 2005). In order to survive a
motion for summary judgment, Plaintiff must present expert testimony regarding the
proper standard of care and causation. See Hakeem v. Salaam, 260 Fed. App’x 432,
434 (3d Cir. 2008) (nonprecedential). Pursuant to Pennsylvania Rule of Civil Procedure
1042.3, Plaintiff’s certification that he does not need expert testimony precludes him from
presenting such testimony. See McCool, 984 A.2d at 571 (precluding pro se plaintiff
from presenting expert testimony after he filed a Rule 1042.3(a)(3) certificate).
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Plaintiff’s contention that he can rely on the Physician’s Desk Reference
and his own testimony instead of presenting an expert witness lacks merit. Pennsylvania
law makes clear that a plaintiff alleging medical malpractice must present expert
testimony regarding the standard of care and causation. See Mitzelfelt v. Kamrin, 526
Pa. 54, 584 A.2d 888, 891 (Pa. 1990). Having already found Plaintiff’s claim does not
fall within the narrow exception of this requirement, Plaintiff’s medical malpractice claim
against Defendant Kcomt fails without such testimony.
Plaintiff’s final argument is that limiting the access to the courts by indigents
who cannot afford experts violates the Pennsylvania and U.S. constitutions. Here,
Plaintiff’s access to court was not limited by his inability to pay an expert. Plaintiff
certified that he would not need to present expert testimony to prove his claim and,
pursuant to state and federal law, he is being held to that certification. See PA. R. CIV. P.
1042.3; Liggon-Redding v. Sugarman, 659 F.3d 258, 259 (3d Cir. 2011).
For these reasons, Defendant Kcomt’s motion for summary judgment on
Plaintiff’s medical malpractice claim will be granted.
C. Breach of Confidentiality Claim against Defendant Kcomt
Plaintiff’s complaint alleges that “Defendants Kcomt . . . deliberately violated
federal and state statutes regarding confidentiality of medical and psychiatric information
and privacy and violated ethical codes of their professions by doing so.” (Doc. 1-2, ¶ 71).
Plaintiff does not refer to specific statutes, and he asserts that this claim is one of
“professional liability.” (Id. at ¶ 73). In support of this claim, Plaintiff asserts that
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Defendant Kcomt would only discuss his medical issues through the cell door, and his cell
mate and inmates in adjoining cells were able to hear the conversation. When Plaintiff
requested privacy to discuss his issues, he was told by Kcomt that he must discuss them
at the cell door or he would not receive medical care.
1. Motion for Summary Judgment
Defendant Kcomt moves for summary judgment or, in the alternative,
dismissal of this claim. In support of his motion for summary judgment, Kcomt argues
that Plaintiff’s professional liability claim fails because he will not be able to present expert
testimony regarding the standard of care and causation as a result of filing a Rule 1042.3
certification. See PA. R. CIV. P. 1042.3; Liggon-Redding v. Sugarman, 659 F.3d 258, 259
(3d Cir. 2011). Plaintiff responds that his claim falls within the narrow exception to the
requirement for expert testimony, because a breach of confidentiality is within the range of
experience and comprehension of non-professional persons. See Hightower-Warren v.
Silk, 548 Pa. 459, 698 A.2d 52, 54 n. 1 (Pa. 1997). In the light most favorable to the
Plaintiff, we find that this may be the type of claim that would be within the comprehension
of the jury, meeting the exception to the expert testimony requirement. We will deny
Defendant Kcomt’s motion for summary judgment on this basis.
2. Motion to Dismiss
Defendant also moves to dismiss this claim, arguing that Plaintiff’s complaint
contains only conclusory allegations and fails to identify any federal or state statutes.
Plaintiff responds that Defendant’s behavior violates the Mental Health Procedures Act
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(“MHPA”), 50 P.S. § 7111. This statute provides that “All documents concerning persons
in treatment shall be kept confidential and, without the person's written consent, may not
be released or their contents disclosed to anyone.” 50 P.S. § 7111. This Pennsylvania
statute is not applicable to the present case, because it only establishes rights for persons
being involuntarily treated for a mental illness or persons being voluntarily treated for a
mental illness as an inpatient. See 50 P.S. § 7103. While the act provides procedures
for the involuntary treatment of prisoners, there are no allegations in the complaint that
would suggest Plaintiff was being treated pursuant to the act. See 50 P.S. § 7401. We
also find no allegations that would suggest Plaintiff was voluntarily being treated as an
inpatient, because he was housed at SCI-Camp Hill as a result of his incarceration, not as
a requirement for treatment. See Herman v. County of York, 482 F. Supp. 2d 554, 567
(M.D. Pa. 2007) (Jones, J.) (interpreting MHPA as applied to prisoners). Additionally, this
statute is inapplicable because Plaintiff does not allege that Defendant Kcomt disclosed
any confidential information.
Plaintiff cites federal statute 42 U.S.C. § 1320d-6(3), which criminalizes “A
person who knowingly . . . discloses individually identifiable health information to another
person.” Plaintiff does not allege that Defendant disclosed any information, making the
statute inapplicable to the present case.
Plaintiff’s claim can be construed as a state law tort claim for breach of
confidentiality. The Pennsylvania Superior Court has found “in some cases a civil claim
for a physician's breach of confidentiality is cognizable.” Haddad v. Gopal, 2001 Pa
10
Super 317, 787 A.2d 975, 980 (Pa. Super. 2001); see also Grimminger v. Maitra, 2005 Pa
Super 374, 887 A.2d 276, 279 (Pa. Super. 2005) (“Pennsylvania recognizes a civil cause
of action for breach of the physician-patient privilege where confidential disclosures
occurred that were unrelated to any judicial proceedings.”) (citation omitted). One
Pennsylvania court found “a patient may recover damages for injuries sustained from his
or her psychiatrist's unauthorized disclosure of confidential information regarding the
patient.” Ulizzi v. Trellis, 20 Pa. D. & C. 4th 300, 303 (Pa. Ct. Comm. Pl. 1993); see also
Lujan v. Mansmann, 956 F. Supp. 1218 (E.D. Pa. 1997) (recognizing claim for breach of
confidentiality against psychiatrist-defendant). This type of claim does not require expert
testimony. See Ulizzi, 20 Pa. D. & C. 4th at 306 (“Recovery for breach of the confidential
relationship simply shortcuts a professional negligence claim by eliminating the
requirement on the part of the patient to present expert testimony showing that the
psychiatrist's conduct deviated from the accepted standard of care.”).
However, Plaintiff does not cite, nor have we found, any Pennsylvania
precedent for a state law claim for breach of confidentiality arising under a similar factual
scenario.1 Plaintiff’s claim is distinguishable due to his failure to allege that Defendant
Kcomt made any disclosures. Instead, Plaintiff asserts that he was forced to discuss
We note a case from the U.S. District Court for the Western District of
Pennsylvania that involves a prisoner’s right to confidentiality. See 2010 U.S. Dist.
LEXIS 61056. There, the court found that the plaintiff had established a claim for
breach of confidentiality when his psychiatrist came to his cell door and revealed
confidential information. Id. Here, Plaintiff’s complaint does not allege that Defendant
Kcomt disclosed confidential information. (Doc. 1-2, ¶¶ 64, 68).
1
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confidential information in an area where he could be overheard or forego medical
treatment. Because Plaintiff does not allege that Defendant Kcomt made any disclosures,
he has failed to state an actionable breach of confidentiality claim under state law.2
D. Eighth Amendment Claim Against Defendant Kcomt
Defendant Kcomt argues that Plaintiff’s Eighth Amendment claim should be
dismissed for failure to state a claim. In this claim, Plaintiff alleges that Kcomt
“deliberately interfered with treatments prescribed by physicians most familiar with [his]
medical and psychiatric conditions.” (Doc. 1-2, ¶ 76). In support of his claim, Plaintiff
alleges that Defendant Kcomt discontinued Plaintiff’s anti-depressant medication,
Lexapro, without examining or interviewing Plaintiff. Plaintiff also asserts that he made
multiple requests for Lexapro and told Kcomt about his history of severe refractory
depression and suicide attempt, but Kcomt refused to order it.
1. Whether Plaintiff Exhausted His Administrative Remedies
Prior to reaching the merits of Plaintiff’s Eighth Amendment claim, we turn to
whether he has exhausted his administrative remedies. The Prison Litigation Reform Act
(“PLRA”) requires a prisoner to exhaust all available administrative remedies prior to
bringing an action pursuant to 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a). Plaintiff
alleges that he “exhausted his administrative remedies regarding this issue as required by
Plaintiff also cites Doe v. Delie, 257 F.3d 309 (3d Cir. 2001), where the Third
Circuit found that a “constitutional right to privacy in one's medical information exists in
prison.” Id. Because Plaintiff’s complaint does not allege a constitutional violation of
privacy, we will not consider the merits of such a claim in this case.
2
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the Prisoner Litigation Reduction Act.”3 (Doc. 1-2, ¶ 80). Defendant Kcomt argues that
this assertion is not enough to withstand a motion to dismiss. In his response, Plaintiff
provides copies of Grievance 331065 and the Final Appeal Decision. Defendant argues
that this grievance does not include the conduct complained of in Plaintiff’s Eighth
Amendment claim. In this grievance, Plaintiff asserts that he was previously prescribed
Lexapro and other medications, but was not able to receive them at SCI-Camp Hill
because of policy. His grievance contends that failing to provide the medication “is
deliberate indifference to my medical problems.” (Doc. 13, Exh. F). In an effort to receive
the medication, Plaintiff’s complaint explains that he spoke with “a medical nurse and a
nurse and psychiatrist.” (Id.) Additionally, Plaintiff made sick calls and wrote to the
medical director.
The burden is on Defendant to prove that Plaintiff failed to exhaust his
remedies. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2005). Plaintiff’s grievance
makes clear references to the alleged “deliberate indifference” of the medical staff and his
meeting with a psychiatrist. We find that Defendant has not met his burden to prove that
Plaintiff failed to exhaust his remedies.
2. The Merits of the Eighth Amendment Claim
To bring an Eighth Amendment claim, a plaintiff must show that prison
officials were deliberately indifferent to a serious medical need.
White v. Napoleon, 897
We construe Plaintiff’s reference to the “Prisoner Litigation Reduction Act” to
mean the Prison Litigation Reform Act.
3
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F.2d 103, 108-109 (3d Cir. 1990). Because Defendant Kcomt does not dispute that
depression is a serious medical condition, we move onto whether Kcomt was deliberately
indifferent.
The Third Circuit has found deliberate indifference “where a prison official
(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it;
(2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a
prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999). “Deliberate indifference, however, requires more than
mere malpractice or disagreement with a particular course of treatment.” Merrit v. Fogel,
349 Fed. App’x 742, 746 (3d Cir. 2009).
Plaintiff alleges that Kcomt “deliberately interfered with treatments
prescribed by physicians most familiar with [his] medical and psychiatric conditions.”
Plaintiff’s psychiatrist at SCI-Albion prescribed Lexapro, an anti-depressant. Upon being
temporarily transferred to SCI-Camp Hill, Plaintiff alleges that Kcomt discontinued his
Lexapro without examining or interviewing Plaintiff or reviewing his medical records. At
some point during his stay at SCI-Camp Hill, Kcomt met with Plaintiff. Plaintiff explained
his history of a suicide attempt, severe refractory depression, and multiple adverse effects
of all other anti-depressant medications, but Kcomt still refused to prescribed Lexapro.
Plaintiff received medical care from Kcomt, but takes issue with Defendant’s failure to
prescribe a specific medication. He makes bald assertions that such a failure was in
wanton disregard for his health and well-being. The allegations in Plaintiff’s complaint fail
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to rise to the level of a constitutional violation. Plaintiff must allege more than mere
negligence or disagreement with a particular course of treatment. See Merrit v. Fogel,
349 Fed. App’x 742, 746 (3d Cir. 2009). Thus, we will dismiss Plaintiff’s Eighth
Amendment claim.
E. Plaintiff’s Request for an Injunction
Defendant Kcomt argues that Plaintiff’s request for a preliminary injunction
should be dismissed. To obtain a preliminary injunction, Plaintiff must demonstrate a
reasonable likelihood of success on the merits and that he will be irreparably harmed if
the injunction is not granted. See Abu-Jamal v. Price, 154 F.3d 128, 133 (3d Cir. 1998)
(“Federal Rule of Civil Procedure 65 permits a court to grant a preliminary injunction if the
moving party demonstrates a likelihood of success in the litigation, and that he will suffer
great or irreparable injury absent an injunction.”). Having disposed of all of Plaintiff’s
claims against Defendant Kcomt, we find that Plaintiff has not demonstrated a reasonable
likelihood of success on the merits. Plaintiff’s request for a preliminary injunction will be
dismissed.
D. Plaintiff’s Motion for Summary Judgment
Plaintiff requests summary judgment on his medical malpractice and Eighth
Amendment claims against Dr. Underwood. His motion and briefs are based upon the
assumption that his request for admissions were admitted by Underwood. For the
reasons set forth in our June 19, 2012 Order, the admissions were not admitted. Without
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these admissions, Plaintiff’s argument that there are no genuine issues of material facts
lacks merit.
To bring a successful medical malpractice claim, Plaintiff must show:
(1) a duty owed by the physician to the patient (2) a breach of duty from
the physician to the patient (3) that the breach of duty was the proximate
cause of, or a substantial factor in, bringing about the harm suffered by
the patient, and (4) damages suffered by the patient that were a direct
result of that harm.
Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 891 (Pa. 1990). Plaintiff must present an
expert witness who will testify “to a reasonable degree of medical certainty, that the acts
of the physician deviated from accepted medical standards, and that such deviation was
the proximate cause of the harm suffered.” Hakeem v. Salaam, 260 Fed. App’x 432, 434
(3d Cir. 2008) (nonprecedential) (citation omitted). Plaintiff has not presented expert
testimony regarding the standard of care and causation. Therefore, Plaintiff’s motion for
summary judgment on this claim fails.
Plaintiff also seeks summary judgment on his Eighth Amendment deliberate
indifference claim. Plaintiff’s motion will be denied, because there are genuine issues of
material fact regarding whether Defendant Underwood knew of Plaintiff’s need for medical
treatment, delayed medical treatment, or prevented Plaintiff from receiving needed or
recommended treatment. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(finding deliberate indifference “where a prison official (1) knows of a prisoner's need for
medical treatment but intentionally refuses to provide it; (2) delays necessary medical
16
treatment based on a non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment.”). As there are disputes about whether
Defendant Underwood knew of Plaintiff’s need for medical treatment, whether Plaintiff
needed medical treatment, and why Defendant Underwood discontinued certain
medications, we will deny Plaintiff’s motion for summary judgment without prejudice to
renewal of the motion upon a more complete record.
IV.
Conclusion
We will grant Defendant Kcomt’s motion for summary judgment on Count II
of Plaintiff’s complaint. We will also grant his motion to dismiss Counts III and IV of
Plaintiff’s complaint and his request for a preliminary injunction. Defendant’s motion for
summary judgment on Counts III and IV of Plaintiff’s complaint will be denied. Plaintiff’s
motion for summary judgment against Defendant Underwood will be denied.
/s/William W. Caldwell
William W. Caldwell
United States District Judge
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UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD W. ILLES, SR., M.D.
Plaintiff
:
:
:
vs.
: CIVIL NO. 1:12-CV-0395
:
DR. BARRY BEAVEN et al.,
Defendants
:
:
:
:
ORDER
AND NOW, this 10th day of July, 2012, upon consideration of Defendant’s
motions for summary judgment and to dismiss (doc. 3), and Plaintiff’s motion for
summary judgment (doc. 36), it is ordered that:
1. Defendant’s motion for summary judgment on Count II of Plaintiff’s
Complaint is GRANTED without leave to amend.
2. Defendant’s motion for summary judgment on Counts III and IV of
Plaintiff’s Complaint is DENIED.
3. Defendant’s motion to dismiss Counts III and IV of Plaintiff’s Complaint
is GRANTED without prejudice.
4. Defendant’s motion to dismiss Plaintiff’s request for a preliminary
injunction is GRANTED.
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5. Plaintiff’s motion for summary judgment (doc. 36) is DENIED.
6. Plaintiff is granted leave to amend Counts III and IV of his complaint
within twenty-one (21) days hereof, if he desires to do so.
/s/William W. Caldwell
William W. Caldwell
United States District Judge
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