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Expert Testimony Required in Medical Claims

A Pennsylvania prisoner survived a motion for summary judgment by prison health care providers after a U.S. District Court ruled that expert testimony was not required to establish the severity of his medical need nor the defendants' indifference to it.

William McCabe, complaining of severe leg pain, sought medical care at each of three different Pennsylvania prisons where he was confined. An outside vascular specialist examined McCabe, found blockage of the arteries in his left leg, and recommended surgery to restore circulation. Prison doctors refused to authorize the surgery and stated "the prison was not Burger King and he [McCabe] could not have it his way."

McCabe later underwent emergency quadruple bypass surgery. While recovering, a physician found the principal arteries in McCabe's leg were completely blocked and recommended surgery but prison doctors did not authorize the procedure. Later that month, McCabe's leg became numb, swollen, and discolored. He was diagnosed with gangrene and his left leg was amputated. Thereafter, McCabe filed suit under 42 USC §1983 complaining, inter alia, of deliberate indifference to his serious medical needs.

A serious medical need is one that has been diagnosed by a physician as requiring treatment; where prison officials deny treatment, deliberate indifference is manifest, said the Third Circuit. Following the Third Circuit's guidance, the district court upheld McCabe's claims and denied summary judgment to all but those health care providers who were only peripherally involved.

McCabe also filed state law complaints of medical malpractice by prison doctors. Under Pennsylvania law, a plaintiff who complains of medical malpractice must present an expert who will testify that the acts of the defendants deviated from accepted medical standards and it was that deviation which caused plaintiff's injury.
McCabe presented no such expert witnesses and the court therefore granted summary judgment to the defendants on the state law claims.

Separately, a Pennsylvania prisoner prevailed against prison officials' motion for summary judgment and qualified immunity when a U.S. District Court found that the prisoner's dislocated shoulder was a serious medical need, defendants were deliberately indifferent to that need, and there was a genuine issue of material fact on the prisoner's 8th Amendment claim.

Daniel Petrichko was a prisoner at Schuylkill County Prison when he dislocated his shoulder while playing basketball. Prison guard Scott Rizzardi witnessed the incident, refused to transport Petrichko to the hospital, and instructed another prisoner to reset Petrichko's shoulder.

Despite making repeated written requests for medical treatment, it was not until two weeks later that Petrichko was first examined by a physician. Complaining that inadequate medical care was the cause of a permanent disability, Petrichko filed suit under 42 USC §1983.

Petrichko produced evidence in the form of affidavits, depositions, and reports from physicians that he suffered a serious injury. He also supplied evidence that the defendants ignored his numerous requests for medical attention.

A reasonable official would have known that refusing medical treatment to a prisoner, allowing two weeks to pass before providing an initial examination, and directing another non-physician prisoner to replace Petrichko's dislocated shoulder constituted deliberate indifference to serious medical needs and violated plaintiff's constitutional rights, said the court. Consequently, defendants were not entitled to qualified immunity. See: McCabe v. Prison Health Services, 117 F.Supp. 2d 443 (ED PA 1997), and Petrichko v. Kurtz, 117 F.Supp. 2d 467 (ED PA 2000).

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Related legal case

McCabe v. Prison Health Services

Although McCabe need not present an expert witness to proceed to trial, he must provide evidence that, if believed by a reasonable fact-finder, would show that each of the defendants knew, or should have known, of his serious medical need, and was deliberately indifferent to it. See Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988) (holding that to incur liability in a civil rights action, the Defendant must have some type of personal involvement in the incidents that are alleged to have violated the Plaintiff's civil rights); Payton v. Vaughn, 798 F.Supp. 258 (E.D.Pa.1992) (holding that to impose liability for a § 1983 violation, the Plaintiff must establish with particularity that a named Defendant was directly and personally involved in the deprivation of the Plaintiff's rights).

If there is sufficient evidence to reasonably expect that a jury could return a verdict in favor of plaintiff, then that is enough of a showing to thwart imposition of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If there is any evidence in the record from any source from which a reasonable inference in the plaintiff's favor may be drawn, the moving party simply cannot obtain a summary judgment. Id. As to McCabe's § 1983 claims, sufficient questions of fact that must be presented to a jury have been raised as to defendants Pierce, Umar, and Skerl, but not as to the other defendants. I will analyze in turn each defendant charged with a § 1983 violation.
*454 4. Dr. Pierce

Defendant Pierce is party to this action as a private physician working under contract with defendant Prison Health Services (Second Amended Complaint at ¶ 9). While at Delaware County Prison, McCabe went to Dr. Pierce on numerous occasions complaining of extreme pain in his left leg. McCabe maintains that defendant Pierce diagnosed him with "severe PVD" (peripheral vascular disease), knew that Dr. DiGiovanni diagnosed McCabe with total blockage of certain arteries in his left leg, knew that surgery on his left leg had been recommended by Dr. DiGiovanni, knew that plaintiff was in great pain, and yet failed to authorize the surgery for non-medical reasons (Plaintiff's Amended Supplement). Defendant Pierce does not deny Mr. McCabe's serious medical need (Brief of Defendant Dr. Pierce in Support of Motion to Dismiss, Doc. # 44).
Drawing all justifiable inferences for McCabe, I find that plaintiff has raised a genuine issue of material fact as to whether Dr. Pierce denied him surgery for non-medical reasons. Failure to treat qualifies as "deliberate indifference". See, e.g., Young v. Quinlan, 960 F.2d 351, 361 (3d Cir.1992) (intentional failure to act to prevent suffering from harm is deliberate indifference); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979) (failure to provide adequate treatment is evidence of deliberate indifference). Accordingly, I DENY the defendants' motion for summary judgment as to the § 1983 claim against Dr. Pierce;
5. Dr. Umar

Defendant Umar is being sued in his capacity as a medical care provider for S.C.I.-Graterford and as an employee of defendant Correctional Physicians Service. (Second Amended Complaint at ¶ 11). McCabe complained of his severe pain to Dr. Umar, and sought medical aid, including the recommended surgery, from him, only to be denied because "the prison was not Burger King" (Second Amended Complaint at ¶¶ 35-37).

These facts demonstrate deliberate indifference-namely, that Dr. Umar was aware of McCabe's medical need, yet did not act upon it. The allegations in the Second Amended Complaint indicate that Dr. Umar examined McCabe, and then refused to send him for tests or surgery. (Second Amended Complaint at ¶¶ 35-36). The alleged facts further demonstrate that, even after plaintiff asked for surgery to alleviate his intense pain, Dr. Umar continued to refuse treatment. (Second Amended Complaint at ¶ 36). Denial of medical treatment often qualifies as deliberate indifference. See, e.g., Young v. Quinlan, 960 F.2d at 361; Inmates of Allegheny County Jail, 612 F.2d at 762.
Furthermore, the allegations indicate that Dr. Umar was deliberately rude and indecent in dealing with plaintiff's suffering. (Second Amended Complaint at ¶ 36: the "Burger King" comment). Offensive and outrageous acts serve as proof of deliberate indifference. See e.g., Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Estelle, 429 U.S. at 105-06, 97 S.Ct. 285.

Plaintiff thus raises genuine issues of fact for trial regarding defendant Umar's behavior towards his serious medical need. Accordingly, I DENY summary judgment on the § 1983 claim as to Dr. Umar;
6. Dr. Skerl

Defendant Skerl is being sued in his capacity as Medical Director of S.C.I.-Cresson, and as an employee or agent of defendant Executive Health Group (Second Amended Complaint at ¶ 10). McCabe made numerous visits to Dr. Skerl, and wrote many letters to Dr. Skerl explaining the leg pain he was suffering, and requesting Dr. Skerl's help (Plaintiff's Amended Supplement). McCabe's claims that he repeatedly sought help from Dr. Skerl are corroborated by his medical records, which reveal frequent visits to the infirmary by McCabe because of leg pain. *455 (e.g., SCI-Cresson medical records dated 4/30/93; 5/04/93; 6/14/93; 6/15/93; 7/08/93; 7/14/93; 9/16/93; 9/21/93; 10/18/93; 10/25/93; 11/18/93; 12/16/93). McCabe further maintains that Dr. Skerl first denied him a prosthesis and then provided him with an inadequate one, leading to further pain and suffering. (Plaintiff's Amended Supplement).

Genuine issues of material fact as to Dr. Skerl's knowledge of and possible indifference to McCabe's serious medical need exist. Accordingly, I DENY summary judgment on the § 1983 claim as to defendant Skerl;
7. Doctors Rahman, Ennis, and Brandt

The only assertions that McCabe makes against defendants Rahman, Ennis, and Brandt are that he saw them while at Graterford, complained to them of leg pain, and none of them "would commit to surgery only medication" (Plaintiff's Amended Supplement). McCabe does not contend that these doctors knew, or should have known, how severe his medical need was, or that they failed to authorize surgery for non-medical reasons.

Drawing every justifiable inference for the plaintiff, he has not presented enough that a reasonable fact-finder could find for him on his § 1983 claims against these defendants. Accordingly, I GRANT summary judgment on the § 1983 claims as to defendants Rahman, Ennis, and Brandt;
8. The Medical Records Personnel

McCabe alleges that defendant Spence failed to obtain his records from Delaware County Prison and to forward his records from SCI-Graterford to SCI-Cresson; that defendants Harris and Cramer failed to obtain his records from Delaware County Prison and SCI-Graterford; and that defendants Christie, Rensimer, and Alvanitakis failed to forward his records to SCI-Graterford. McCabe does not allege that these defendants knew of his serious medical need or exhibited deliberate indifference. He does not offer any evidence showing that these particular defendants failed to obtain or transfer his records or that the supposed lack of records contributed to his injuries.FN14
FN14. Defendants Spence, Cramer, and Harris aver that they had no responsibility for plaintiff's medical records at all, and McCabe has not offered evidence to the contrary. (Spence Decl.; Cramer Interrog. Responses ¶ 23; Alvanitakis Aff. ¶ ¶ 1, 5, 6, 8, 10).
Accordingly, there is no genuine issue of material fact as to these defendants, and I GRANT summary judgment on the § 1983 claims as to defendants Spence, Harris, Cramer, Christie, Rensimer, and Alvanitakis.

In addition to his federal civil rights claims, Plaintiff McCabe brings state law claims for both negligence and gross negligence against defendants Pierce, Skerl, Umar, Rahman, Ennis, and Brandt, and brings claims for ordinary negligence against defendants DiGiovanni, Magee, Harvey and Altoona Hospital. FN15 I will treat these as medical malpractice claims. Finally, he brings claims for gross negligence against medical records personnel Spence, Harris, Cramer, Christie, Rensimer, and Alvanitakis.

FN15. I will call these first two groups of defendants "the medical providers."

1. Medical Providers

The malpractice inquiry differs from that under the Eighth Amendment in that it specifically requires comparison of the actions of particular defendants with the standards of their profession.FN16 Under *456 Pennsylvania law, in order to establish a prima facie case of medical malpractice, the plaintiff generally must present an expert who will testify, to a reasonable degree of medical certainty, that the acts of the defendants deviated from the acceptable medical standards, and that the deviation constituted a substantial factor in causing the plaintiff's injury.FN17 Mitzelfelt v. Kamrin, 526 Pa. 54,61, 584 A.2d 888, 892 (1990) (citing Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980)). See also Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 480 (3d Cir.1979) (adopting Pennsylvania's requirement for expert testimony in legal malpractice actions). This requirement stems from judicial concern that, absent the guidance of an expert, jurors are unable to determine relationships among scientific factual circumstances. Brannan, 490 Pa. at 595, 417 A.2d at 199 (1980).

FN16. See Ledford v. Sullivan, 105 F.3d 354, 358-60 (7th Cir.1997) (distinguishing deliberate indifference from malpractice: "Because the test for deliberate indifference is more closely akin to criminal law than to tort law, the question of whether the prison officials displayed deliberate indifference toward [plaintiff's] serious medical needs did not demand that the jury consider probing, complex questions concerning medical diagnosis and judgment. The test for deliberate indifference is not as involved as that for medical malpractice, an objective inquiry that delves into reasonable standards of medical care.").
FN17. There are four elements to the prima facie case of medical malpractice in Pennsylvania: "(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) the damages suffered by the patient were a direct result of that harm." Hoffman v. Brandywine Hospital, 443 Pa.Super. 245, 250, 661 A.2d 397, 399 (1995).
The only exception to the requirement of expert witness testimony in medical malpractice claims is where the matter is "so simple, and lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons." Brannan, 490 Pa. 588, 417 A.2d 196 (quoting Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963)). Whether the decisions of the medical providers to deny or delay McCabe's surgery, given their knowledge of McCabe's condition and the standards of their profession, were negligent, and substantially caused McCabe's amputations, is not a matter within the competence of the ordinary layperson, and, therefore, requires expert testimony. McCabe has no expert witness to testify on his behalf. Accordingly, I GRANT summary judgment on the state law claims as to defendants DiGiovanni, Pierce, Skerl, Umar, Rahman, Ennis, Brandt, Magee, Harvey, and Altoona Hospital.
2. Medical Records Personnel

In order to withstand summary judgment on his gross and ordinary negligence claims against the medical records defendants, McCabe must present evidence on the four negligence elements: (1) a legal duty or obligation to conform to a certain standard of conduct; (2) a failure to conform to that standard; (3) a reasonably close causal connection between the conduct and the resulting injury; and (4) actual loss or damage. Farber v. Engle, 525 A.2d 864 (Pa.Cmwlth.1987). McCabe claims a duty for each of the defendants to transfer or obtain his medical records (Second Amended Complaint at ¶¶ 15-20), but does not specify any standard; similarly, he claims that each of the prisons at which he was incarcerated failed to transfer or acquire his full medical records, but does not provide the slightest substantiation for the claimed negligence of each of the defendants (Second Amended Complaint at ¶ ¶ 60-66).FN18

FN18. In their motions for summary judgment, the Commonwealth defendants assert that McCabe has not raised issues of material fact as to their negligence; in his responses, McCabe provides no new allegations or evidence. Defendant Spence avers that she had no contact with McCabe and no responsibility concerning non-SCI medical records. Defendant Cramer avers that she had no involvement with plaintiff at all. While Defendant Harris admits that she had both contact with McCabe and responsibility for obtaining medical records, she argues that she was not negligent, because: she met with McCabe twice to obtain authorizations for release of his arteriogram record, she followed up on the first request, and, finally, nothing in Dr. Skerl's record request for the arteriogram record suggested urgency.

Defendant Alvanitakis also moved separately for summary judgment. In his Amended Supplement to Brief in Opposition to Defendants Motion for Summary Judgment, McCabe states that Alvanitakis "prepared a DC-7X form-Temporary Transfer Information" on November 19, 1991, in preparation for his transfer to Graterford, and then, that this form "outlined the Plaintiffs' medication's and the recommendation for 'needed Vascular surgery.' " Alvanitakis avers that she was in charge of all of the criminal record history for inmates, and had no responsibility for medical records. Delaware County Prison had an independent contractor, Prison Health Services, which provided medical care, and kept all records. McCabe has not provided any evidence showing that Alvanitakis was responsible for medical records; furthermore, in his Amended Supplement, McCabe says that Alvanitakis did provide the necessary information.
*457 Giving him the benefit of every doubt, McCabe has not raised a genuine issue of material fact as to the negligence of the medical records personnel defendants. Accordingly, I GRANT summary judgment on the state law claims against defendants Spence, Harris, Cramer, Christie, Rensimer, and Alvanitakis.FN19

FN19. The Commonwealth defendants, Spence, Harris, and Cramer, also claim sovereign immunity from tort liability. As I find that McCabe has not raised genuine issues of material fact as to their negligence, I need not reach the issue of sovereign immunity.


AND NOW, this ____ day of November, 1997, upon consideration of the motions made by defendants Prison Health Services, Correctional Physicians Services, Executive Health Group, DiGiovanni, Skerl, Pierce, Magee, Umar, Harvey, Rahman, Ennis, Brandt, Altoona Hospital, Spence, Harris, Cramer, Christie, Rensimer, and Alvanitakis and the responses filed by plaintiff McCabe, IT IS ORDERED:

1) that, with regard to the motion of DEFENDANT ALVANITAKIS for summary judgment on the state law and § 1983 claims against her, such motion is GRANTED;
2) that, with regard to the motion of DEFENDANTS SPENCE, HARRIS AND CRAMER for summary judgment on the state law and § 1983 claims against them, such motion is GRANTED;
3) that, with regard to the joint motion on behalf of all defendants for summary judgment on the state law and § 1983 claims against them, such motion is GRANTED on all claims as to DEFENDANTS PRISON HEALTH SERVICES, CORRECTIONAL PHYSICIANS SERVICES, EXECUTIVE HEALTH GROUP, DIGIOVANNI, RAHMAN, ENNIS, BRANDT, MAGEE, HARVEY, ALTOONA HOSPITAL, SPENCE, HARRIS, CRAMER, CHRISTIE, RENSIMER, AND ALVANITAKIS;
4) and that, with regard to the joint motion on behalf of all defendants for summary judgment on the state law and § 1983 claims against them, such motion is GRANTED on the state law claims as to DEFENDANTS SKERL, PIERCE AND UMAR and DENIED on the § 1983 claims as to DEFENDANTS SKERL, PIERCE AND UMAR.