PEARSON v. PRISON HEALTH SERVICE et al
Filing
146
MEMORANDUM ORDER granting 126 Motion for Summary Judgment; granting 130 Motion for Summary Judgment; 143 Report and Recommendation is adopted as the opinion of the Court. The Clerk shall mark this matter closed, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 12/18/2015. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTONIO PEARSON,
Plaintiff
v.
PRISON HEALTH SERVICE, et al.,
Defendants
:Case No. 3:09-cv-97-KRG-KAP
Memorandum Order
This matter was referred to Magistrate Judge Keith A.
Pesto for pretrial proceedings in accordance with the Magistrates
Act, 28 U.S.C.§ 636, and Local Civil Rule 72.
The Magistrate Judge filed a Report and Recommendation
on
September
30,
2015,
docket
no.
143,
recommending
that
the
remaining defendants' motions for summary judgment at docket no.
126 and docket no.
130 be granted.
pursuant to 28 U.S.C.§ 636(b) (1)
The parties were notified
that they had fourteen days to
file written objections to the Report and Recommendation.
Plaintiff filed timely objections at docket no. 144, to
which
defendant
Dr.
McGrath
replied
at
docket
no.
145.
The
objections raise seven issues:
1)
Plaintiff asserts that the evidence creates a dispute of fact
about the state of mind
Nurse Thomas.
(deliberate indifference)
Objections at 3-4.
of defendant
The objections mis-state the
record in asserting that Nurse Thomas "attributed his pain to a
muscle pull, a diagnosis she is neither permitted or qualified to
make."
Objections at 4.
There was some sparring at Nurse Thomas's
deposition about the meaning of the word "diagnose:" Nurse Thomas's
testimony was that nurses make "determinations" and "assessments,"
while doctors make "diagnoses."
no. 129-10.
See Thomas depo. at 18-20, docket
But this,is not evidence plaintiff can offer to prove
that nurses are not permitted or qualified to make diagnoses: this
was
semantic ping-pong about
"diagnose,"
namely,
competing definitions of the word
deciding
that
the
cause
of
the
pain
was
appendicitis versus a muscle pull versus ordinary recognition of
the signs and symptoms (in this case that plaintiff was complaining
of pain but showed no guarding or facial grimacing and was animated
and mobile) of the patient.
Later in his objections, plaintiff argues that Captain
Papuga was deliberately indifferent for not recognizing plaintiff's
serious
medical
corrections
need
officer
when
with
plaintiff
blood
allegedly
plaintiff
had
presented
collected,
a
so
plaintiff obviously recognizes that even a layperson is capable of
"diagnosing" a serious medical need.
Plaintiff's attempt to argue
that Nurse Thomas was deliberately indifferent for not making a
diagnosis she was not qualified to make is an attempt to exploit
the
different
meanings
of
the
word
"diagnose"
in
inconsistent
fashion solely to advance plaintiff's case.
The only claim against each defendant is that he or she
was deliberately indifferent to one of plaintiff's serious medical
needs, initially to be treated for appendicitis, and subsequently
to be treated for bleeding allegedly due to a cut suffered during
2
surgery.
To avoid summary judgment plaintiff must produce evidence
sufficient to create a genuine dispute that a prison official:
kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and [s]he must also draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994)
to Nurse Thomas would,
if believed by a
The evidence relevant
jury in the light most
favorable to the plaintiff, permit a jury to find that Nurse Thomas
failed
to
diagnose
appendicitis,
and
that
she
misdiagnosed
a
possible muscle pull from plaintiff's coughing as a result of his
known asthma.
There is no expert testimony to indicate what the
relevant standard of nursing care is when a nurse is presented with
the symptoms plaintiff reported to Nurse Thomas.
find
therefore,
that
Nurse
Thomas's
A jury could not,
failure
to
diagnose
appendicitis or anything more serious than a muscle pull was even
A jury certainly could not
negligent.
find
that Nurse Thomas
subjectively drew the conclusion that plaintiff had appendicitis
(or any other serious medical need) and disregarded it.
2)
Plaintiff asserts that the evidence creates a dispute of fact
about the state of mind of defendant Nurse Kline.
4.
Objections at
What is true about Nurse Thomas is true about Nurse Kline, who
saw plaintiff later in the day than Nurse Thomas.
According to
plaintiff, Nurse Kline "recognized the seriousness of Mr. Pearson's
situation
failing"
because
but
did
she
not
informed
"escalat [e]
3
him
Mr.
that
his
gallbladder
Pearson's
situation"
was
or
discuss his care with other staff.
If a jury believed plaintiff's
account of what Nurse Kline said and did,
that would support a
finding that Nurse Kline made an incorrect diagnosis.
Any failure
on Nurse Kline's part to appreciate that plaintiff was suffering
from an incipient case of appendicitis,
or even that a case of
"failing gallbladder" required some more treatment than the overthe-counter medications offered by Nurse Kline, could be the basis
for legal liability only upon proof of the standard of nursing
care.
The evidence, even in the light most favorable to plaintiff,
cannot support a finding that Nurse Kline in fact drew an inference
that plaintiff had appendicitis or some other condition requiring
urgent care and disregarded it.
3)
Plaintiff asserts that the evidence creates a dispute of fact
about the state of mind of defendant Nurse Rhodes.
5-6.
Objections at
Nurse Rhodes' liability is based on two elements, first that
he in fact recognized the possibility of appendicitis but responded
by
keeping
sending
him
plaintiff
to
dissatisfaction
the
with
in
the
infirmary
hospital.
the
deliberate indifference.
This
treatment
rather
than
is
classic
a
option,
not
immediately
a
case
of
claim
of
Plaintiff offers no expert opinion, and
therefore has no competent evidence that the standard of care for
a person with the signs and symptoms he presented to Nurse Rhode
required immediate hospitalization.
Plaintiff would not be able
to prove that Nurse Rhodes should have drawn the conclusion that
4
plaintiff
claim),
needed
to
be
immediately hospitalized
much less contend that a
(a
negligence
jury could properly find that
Nurse Rhodes in fact drew the conclusion that plaintiff needed to
be immediately hospitalized and disregarded it.
The other facet of plaintiff's claim against Nurse Rhodes
is that Nurse Rhodes exhibited deliberate indifference by "forcing"
plaintiff to crawl across his cell to the wheelchair Nurse Rhodes
brought to plaintiff's cell,
before Nurse Rhodes took plaintiff
back to the infirmary where Nurse Rhodes examined plaintiff and
admitted
him
to
the
infirmary.
Assuming
the
jury
believed
plaintiff's testimony, it could find that Nurse Rhodes was callous
but not deliberately indifferent to a serious medical need, because
plaintiff presents no evidence whatsoever to indicate that he could
not ambulate,
much less that Nurse Rhodes believed it,
or that
crawling inflicted some severe pain on him above the level of pain
he was already suffering, much less any competent evidence that
requiring a plaintiff complaining of stomach pains - but not yet
diagnosed with appendicitis or anything more severe than stomach
pains, and not exhibiting any other symptoms such as vomiting - to
ambulate violated any standard of care.
To confuse Nurse Rhodes'
alleged bad bedside manner with indifference to a serious medical
need would make
any
assertion
of
discourtesy unaccompanied by
evidence that it caused any injury into an Eighth Amendment jury
question.
That is not the law.
5
4)
Plaintiff asserts that the evidence creates a dispute of fact
about the state of mind of defendant Doctor McGrath.
at
6-8.
Plaintiff
makes
two
points
about
Objections
the
Report
and
Recommendation's analysis of Doctor McGrath's liability: at page
13, the "someone" not identified by the Magistrate Judge was Nurse
Magyar,
and
at
page
12,
the
statement
that
there
were
no
restrictions placed on plaintiff by Doctor Pradhan is incorrect
because there was a lifting restriction of 20 pounds.
correct observations but immaterial.
Those are
The identity of Nurse Magyar
as the "someone" makes no difference to Doctor McGrath's actions,
and as with Nurse Rhodes the alleged temperament of Doctor McGrath
makes
no
evidence,
difference
much
less
to
his
liability.
competent
expert
Plaintiff
evidence,
offers
no
that
Doctor
McGrath's actions breached any relevant standard of care.
And as
the
Report
and Recommendation
explained at
page
18,
where
the
Magistrate Judge discusses the claim against Doctor McGrath, there
was
no
restriction placed on plaintiff by
Doctor
Pradhan that
Doctor McGrath contradicted or countermanded, and in fact Doctor
McGrath affirmatively gave instructions for plaintiff's care.
A
challenge to the adequacy of those instructions would be a matter
of state law.
Even if a jury accepted all of plaintiff's evidence
there is insufficient evidence of deliberate indifference by Doctor
McGrath.
6
5)
Plaintiff asserts that the evidence creates a dispute of fact
about the state of mind of defendant Captain Papuga.
at 9.
Objections
I adopt the analysis of the Report and Recommendation.
I
add that plaintiff's claim that Captain Papuga did not call medical
and told plaintiff to dispose of the blood plaintiff had collected
to hide any medical condition rests entirely on a citation to
~68
of docket no. 137, Plaintiff's Supplemental Statement of Material
Facts,
~7
the source of which is
of plaintiff's affidavit,
Pearson Declaration, docket no. 140-3.
the
The only relevant part of
that paragraph is:
I [complained of bleeding and pain and] showed Sgt.
Ritenour the glove with the amount of blood that was in it.
Instead of contacting medical Sgt. Ritenour called (sic) Capt.
Papuga of the situation. When Sgt. Ritenour carne back, he indicated
to me that Capt. Papuga told him to tell me to throw the blood
away.
There is no way to derive from that statement the conclusion that
Captain Papuga did not call the medical service.
Plaintiff has no
evidence for such an allegation.
6) Plaintiff asserts that the Magistrate Judge erred in "invading
the province of the jury by making findings that the Defendants'
actions and/or inaction did not cause Mr.
injuries."
Objections at 12.
Pearson to suffer any
There is no need to discuss injury
because there is no competent evidence of deliberate indifference
by any defendant.
7)
Plaintiff asserts that the Magistrate Judge erred in finding
plaintiff's evidence insufficient without expert testimony because
7
expert testimony is not needed in this case.
Objections at 12.
Expert testimony is not necessary in every deliberate indifference
case but it is particularly necessary in this case.
cannot
claim that
he did not
receive
treatment,
Plaintiff
either by his
initial referral to the Somerset Hospital for surgery less than 24
hours after his first complaint of pain, or by his second referral
to the hospital for treatment of the bleeding probably caused as
a result of the surgery.
Since the assertions that Nurse Rhodes
and
personally
Doctor
McGrath
were
unpleasant
are
irrelevant,
plaintiff's entire claim rests on the assertions that his care was
inadequate because the referrals to the hospital should have been
sooner.
How much sooner (or whether time was of the essence at all
either time) these referrals should have been made is not something
that
plaintiff
can
establish
by his
own
testimony
or
even by
evidence that defendants could have done something differently.
In the absence of competent evidence that any defendant breached
a standard of care, plaintiff could not prove negligence, much less
deliberate indifference.
Upon de novo review of the record of this matter,
the
Report and Recommendation, and the timely objections thereto, the
following order is entered:
8
AND NOW, this
\<6~ay
ORDERED
defendant
that
of December, 2015, it is
McGrath's
motion
for
summary
judgment at docket no. 126, and defendants Papuga, Kline, Rhodes,
and Thomas's motion for summary judgment at docket no.
granted.
130 are
The Report and Recommendation is adopted as the opinion
of the Court.
The Clerk shall mark this matter closed.
BY THE COURT:
~K
KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
Notice to counsel of record by ECF
9
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