MOORE v. COVERT et al

Filing 181

MEMORANDUM ORDER entered after de novo review 1) granting 155 Defendant's MOTION for Summary Judgment, 2) overruling 176 Plaintiff's Objections to Report and Recommendation, and 3) adopting 173 the Chief Magistrate Judge's REPORT AND RECOMMENDATION as augmented in the Memorandum Order as the opinion of the court. Signed by Judge David S. Cercone on 3/2/18. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHAWN THOMAS MOORE,
Plaintiff,
v.
SUSEN ROSSINO, M.D.,
Defendant.

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Civil Action No. 14-870
Judge David Stewart Cercone
Chief Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
AND NOW, this 2nd day of March, 2018, after de novo review of the record and upon due
consideration of [173] the Chief Magistrate Judge's Report and Recommendation of December
13, 2017, [176] plaintiff's objections thereto and [179] defendant's response to those objections,
IT IS ORDERED that [155] the Motion for Summary Judgment filed by defendant Susen
Rossino, M.D. ("defendant"), be, and the same hereby is, granted. Summary judgment in favor
of defendant and against plaintiff is hereby entered on all claims remaining in the case. The
magistrate judge's report and recommendation as augmented herein is adopted as the opinion of
the court.
We agree with magistrate judge's determination that plaintiff's claim against defendant
regarding the treatment of his Hepatitis C was dismissed at the pleading stage and the claim
remaining for consideration relates solely to plaintiff's complaints of pain arising in conjunction
with the treatment he sought for his Hepatitis C. But assuming for the sake of argument that that
ruling was erroneous, defendant nevertheless would be entitled to judgment "on all claims
remaining in the case" because the construction of the record, law and reasoning in the
magistrate judge's report and recommendation as augmented herein would apply with equal force
to both plaintiff's claim involving the treatment he received for his Hepatitis C and the pain he
experienced and was required to endure in relation to that treatment.

Plaintiff's objections are without merit. Plaintiff's efforts to whitewash the course of
treatment he received under the supervision of defendant into a case of "failure to treat" on the
grounds that "the treatment provided was so cursory that it amounted to no treatment at all" is
unavailing. Plaintiff's Brief in Opposition (Doc. No. 162) at 6, 13. Although less than cutting
edge, the treatment that plaintiff did receive for his Hepatitis C did not fall to a level implicating
the "broad and idealistic concepts of dignity, civilized standards, humanity and decency" that
provide the underpinnings for defining the reaches of the Eight Amendment. Estelle v. Gamble,
429 U.S. 97, 102 (1976). And with regard to the pain that plaintiff suffered over the course of
his incarceration at the Lawrence County jail, the record fails to contain sufficient evidence to
support a finding either that defendant caused plaintiff to endure an unnecessary or wonton
infliction of pain or that defendant was otherwise deliberately indifferent to the complaints and
symptoms of pain that plaintiff did have when he presented for treatment.
Each matter raised by plaintiff in his objections merely reiterates an argument or
construction of the record that was considered by the magistrate judge and found to be
insufficient to preclude summary judgment. In each instance plaintiff's objections are at base
grounded in a subjective belief that defendant should have reacted differently, done more or
reached different assessments and conclusions with regard to plaintiff's presentations for medical
treatment and the test results generated in conjunction therewith. Of course, dissatisfaction of
this nature is not the concern of the Eighth Amendment. See Estelle, 429 U.S. at 106 (mere
negligent misdiagnosis or treatment is not actionable because medical malpractice is not a
constitutional violation); Ramos v. Lamm, 639 F.2d 559, 575 (3d Cir. 1980) ("accidental or
inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment of a
medical condition do not constitute a medical wrong under the Eighth Amendment. See Estelle
v. Gamble, supra, 429 U.S. at 105-06 . . . . A fortiori, a mere difference of opinion between the
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prison's medical staff and the inmate as to the diagnosis or treatment which the inmate receives
does not support a claim of cruel and unusual punishment. See, e. g., Bowring v. Godwin, supra,
551 F.2d at 48; Smart v. Villar, 547 F.2d 112, 114 (10th Cir.)); Monmouth County Correctional
Institution Inmates v. Lanzaro, 834 F.2d, 326, 346 (3d Cir. 1987) (“mere disagreement as to the
proper medical treatment” is insufficient in establishing a constitutional violation) (citing
Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977); Massey v. Hutto, 545 F.2d 45, 46 (8th Cir.
1976) (per curiam)").
Moreover, plaintiff misunderstands the nature of his burden in the instant matter. The
Supreme Court has made clear that proving "deliberate indifference entails something more than
mere negligence" and requires proof of a subjective standard that the official was both "aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists" and
that the official did in fact "draw the inference." Farmer v. Brennan, 511 U.S. 825, 835-37
(1994). The United States Court of Appeals for the Third Circuit has found deliberate
indifference in a number of instances involving the need for medical care within a penal facility,
"including where (1) prison authorities deny reasonable requests for medical treatment, (2)
knowledge of the need for medical care is accompanied by the intentional refusal to provide it,
(3) necessary medical treatment is delayed for non-medical reasons, and (4) prison authorities
prevent an inmate from receiving recommended treatment for serious medical needs." Pearson
v. Prison Health Service, 850 F.3d 526, 538 (3d Cir. 2017) (citing Lanzaro, 834 F.2d at 347).
Three principles are brought into play where a detainee seeks to establish deliberate
indifference predicated on the adequacy of medical care provided in response to complaints
involving a serious medical need. Pearson, 850 F.3d 535. They are: 1) deliberate indifference
involves proving a subjective state of mind that can be accomplished through circumstantial
evidence and witness testimony; 2) a critical distinction exists "between cases where the
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complaint alleges a complete denial of medical care and those alleging inadequate medical
treatment"; and 3) a mere showing of inadequate medical care does not itself prove the defendant
acted with deliberate indifference. Id.
Because the mere inadequacy of care does not suffice to establish deliberate indifference,
a plaintiff seeking to prevail in a dispute involving the adequacy of medical care has a subcomponent in proving deliberate indifference that is not present in other situations. In this
scenario the prisoner must show objectively that the treatment fell below the standard of care and
then show that the deviation was the result of something more than inadvertence or a mistake in
medical judgment. Id. In other words, a plaintiff seeking to establish deliberate indifference in
an adequacy of care context must advance evidence that sufficiently displaces the presumption
"that the treatment of a prisoner is proper absent evidence that it violates professional standards
of care." Id. (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) ("[I]t
is well established that as long as a physician exercises professional judgment his behavior will
not violate a prisoner's constitutional rights")).
This means that competent evidence such as expert testimony is required where the jury
"would not be in a position to determine that the particular treatment or diagnosis fell below a
professional standard of care." Id. Absent such testimony, the record must contain "other forms
of extrinsic proof" that constitute sufficiently reliable evidence to permit such a finding. Id.
(citing Brighthwell v. Lehman, 637 F.3d 187, 194 n.8 (3d Cir. 2011)).
Plaintiff does not advance sufficient competent evidence to permit the trier of fact to
determine that Dr. Rossino acted with deliberate indifference in providing treatment in response
to plaintiff's complaints of liver pain. Each segment of information proffered by plaintiff to meet
that threshold falls short of the mark. First, plaintiff's repeated invocation of the protocol
established by PrimeCare Medical, Inc., does not have the import plaintiff claims. Dr. Rossino
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made clear that the degree of elevation of plaintiff's liver enzymes in themselves did not correlate
directly with active or increasing liver inflammation or damage from Hepatitis C. To the
contrary, one could have active liver disease even with normal enzyme scores. What is more
important is to be aware of rapid changes in connection with other objective signs present on
presentation. Plaintiff's liver enzyme tests remained fairly consistent and did not reflect rapid
changes. In this regard, physical examination was an important tool in evaluating whether
further testing or referral to a specialist for treatment was warranted. Presenting with jaundice
would be a concern, throwing up, losing significant weight, copious stools and tenderness upon
palpitation likewise were objective signs that could signal a need for further action. Given the
qualitative information from plaintiff's test results and the objective findings on presentation, the
protocol by Primecare merely permitted the option of referring plaintiff for additional testing
such as a Hepatitis C qualitative RNA assay and follow-up with a specialist for possible further
treatment, but it did not mandate that course of action and/or such treatment.
Moreover, because patients with Hepatitis C do not ordinarily experience pain from the
disease, plaintiff's reports of right upper quadrant pain, which at times appeared to be present in
other areas of the quadrant as well, triggered a need to eliminate other potential causes of the
pain in an effort to provide plaintiff with comfort. Thus, Dr. Rossino checked for gallbladder
disease, counseled plaintiff on trying to eat a lower fat diet within the restraints imposed by the
institution, ordered ex-rays of the rib cage when plaintiff's complaints of pain shifted to that area
and sought to minimize stomach acid to assure plaintiff's pain was not the result of acid reflux.
Tellingly, plaintiff reported that the medication for his attention deficit disorder actually reduced
the pain he associated with the need for treatment of his Hepatitis C. Thus, the protocol and
objective findings did not mandate a more aggressive course of action for treatment of plaintiff's
Hepatitis C.
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Second, Dr. Harris' expert report does not supply evidence that Dr. Rossino's decisions to
monitor plaintiff's liver enzymes and seek to eliminate other causes for his quadrant pain fell
below the professional standards of care at any given point in time. Dr. Harris agrees that 1)
there is "no correspondence between the degree of liver damage and the LFT/ALT enzyme levels
except [where they appear at really high levels]" and 2) severe liver damage can occur with low
or normal lever enzyme test results. What Dr. Harris does criticize is Primecare's failure to
update its protocol when the Center for Disease Control updated its recommendations with
regard to living with liver disease after the Food and Drug Administration approved the use of
two new direct-acting antiretroviral medications in 2013. The use of these new drugs effectively
revolutionized the care for treatment of patients with Hepatitis C by making the "standard of
care" in both the community and the federal Bureau of Prisons one of "cure for all."
Dr. Rossino was a family practitioner. Her medical obligations related to monitoring
plaintiff's condition and referring him for follow-up with a specialist when warranted by the
attendant circumstances. While the availability to treat Hepatitis C through new antiretroviral
drugs did become available in 2013, and created what appears to be the new goal of cure, Dr.
Harris' report falls woefully short of supplying specific evidence that the actions Dr. Rossino
took at any particular point fell so short of the standard of care expected by a family practitioner
that they not only violated the professional standards governing such community care, but were
egregious enough to permit a finding that they amounted to the type of wantonness that will
constitute a form of cruel and unusual punishment.1 Compare Pearson, 850 F.3d at 539-40 (a
medical professional's failure to appreciate the severity of a prisoner's medical condition or
misdiagnosis of the same in the course of providing medical treatment, such as interpreting the

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This assessment only is bolstered by the fact that plaintiff had a history of intravenous narcotic
addition, insomnia, depression, anxiety and other conditions which had the potential to increase
his sensitivity to pain.
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symptoms of a appendicitis as a failing gall bladder, does not create a triable issue of fact under
the Eight Amendment). In other words, Dr. Harris' acknowledgement that a more worthy goal
through a better course of treatment existed is not a basis for a jury to find that Dr. Rossino's
chosen course was such a deviation that the subjective components of deliberate indifference
may be inferred. Cf. White v. Napoleon, 897 F.2d 103, 100 (3d Cir. 1990) ("If a plaintiff's
disagreement with a doctor's professional judgment does not state a violation of the Eighth
Amendment, then certainly no claim is stated when a doctor disagrees with the professional
judgment of another doctor. There may, for example, be several acceptable ways to treat an
illness.").
The notes of treatment and report from plaintiff's examination and consultation with Dr.
Connelly likewise do not supply evidence that Dr. Rossino's course of treatment fell below the
applicable standard of professional care governing her monitoring and treatment of plaintiff's
Hepatitis C. When plaintiff presented to Dr. Connelly plaintiff's bloodwork was not significantly
different from the results obtained under Dr. Rossino's monitoring. And at two separate physical
presentations, one with physician assistant Zernick and one with Dr. Connelly, plaintiff did not
complain of abdominal pain nor did he present in a state of acute distress. Dr. Connelly's
physical examination of plaintiff produced objective findings that confirmed these observations.
Nothing in this aspect of the record indicates that Dr. Rossino's decisions regarding the
monitoring and potential need for treatment was such a substantial departure from the care
expected from a general family practitioner that she did not base her decisions on medical
judgment. Id. at 538-39 (inadequate diagnosis in providing medical treatment, such as failing to
appreciate the severity of a prisoner's condition, does not establish that the treatment decision
was such "a substantial departure from accepted professional judgment, practice or standards"
that a reasonable jury could conclude the decision was not based on medical judgment).
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Plaintiff has not advanced any competent evidence to discredit Dr. Rossino's assessments
and understandings as to when further measures in the treatment of plaintiff's Hepatitis C would
have been necessary to avoid a substantial risk of serious harm from the existing conditions with
which plaintiff was presenting. Neither the treating specialist, Dr. Connolly, nor the reviewing
expert, Dr. Harris, indicated Dr. Rossino's chosen course of treatment in relation to plaintiff's
presentations and test results fell below the requirements of competent medical care to a degree
that will permit a finding that they were based on something other than medical judgment. In
other words, neither Dr. Harris' report not Dr. Connelly's treatment records supply sufficient
forms of extrinsic proof to displace the presumption that the course of treatment, although
conservative and in lieu of other responses to plaintiff's sporadic complaints of quadrant pain,
objectively deviated from professional standards to a degree that creates a triable issue about her
decisions in providing treatment.
Against this backdrop plaintiff's own self-serving assertions about what the appropriate
responses to his complaints and requests should have been likewise are insufficient to create a
triable issue on whether Dr. Rossino's treatment decisions were made with deliberate
indifference. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (An inmate's
disagreement with medical treatment is insufficient to establish deliberate indifference.). In this
regard plaintiff misperceives the import of the court's summary of the records from defendant
and the consulting and expert physicians. Collectively, those documents indisputably indicate
that over a substantial period of time when plaintiff presented for examination or treatment he
was not in acute distress as that term is understood in the context of medical practice. Nor was
he otherwise in need of immediate medical treatment for severe or debilitating pain. And as
observed by Dr. Harris, plaintiff's complaints regarding his upper quadrant pain were intermittent
in character and location. The objective findings from physical examinations by Dr. Rossino and
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Dr. Connelly corroborated the accuracy of this assessment. Plaintiff's efforts to undermine the
observations and the information defendant recorded in the process of treating him through
vague and self-serving assertions fail to provide meaningful probative evidence to create a triable
issue of fact. See Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992) (at summary judgment
an opponent cannot "merely rely upon conclusory allegations in [its] pleadings or in memoranda
and briefs"); Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990) (Mere
conjecture or speculation by the party resisting summary judgment will not provide a basis upon
which to deny the motion.).
As the magistrate judge's report made clear, plaintiff has failed to produce sufficient
evidence to support a finding that Dr. Rossino's decision not to prescribe pain medication in
response to plaintiff's complaints of right upper quadrant pain was the result of an intentional or
wanton act aimed at causing plaintiff to endure further suffering needlessly. It is undisputed that
plaintiff had numerous medical conditions that could have been a contributing cause to his pain.
Dr. Connelly's treatment evaluation reiterated these with sufficient documentation of their
history and concomitant potential to influence plaintiff's subjective tolerance to pain. The record
clearly reflects that Dr. Rossino monitored plaintiff's condition for elevated risk and sought to
identify other potential causes of his pain when his reports and an objective examination
suggested there might be other causes for it.
It also is clear that whether considered separately or cumulatively, the segments of
plaintiff's evidence pertaining to the nature and degree of medical care provided fail to provide
sufficient evidence to support the proposition that Dr. Rossino's course of conservative treatment
was such a departure from the generally accepted medical practice of a family practitioner that
the trier of fact could draw the inference of deliberate indifference. Because the cumulative
import of plaintiff's evidence fails to supply sufficient extrinsic proof to survive defendant's
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request for summary judgment, defendant's motion has been granted on all remaining claims in
the case.

s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge

cc:

The Honorable Maureen P. Kelly,
Chief United States Magistrate Judge
Louis J. Kroeck, IV, Esquire
Bret Grote, Esquire
Terry C. Cavanaugh, Esquire
Brett C. Shear, Esquire
(Via CM/ECF Electronic Mail)

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