Opinion
Civil Action 3:20-cv-00489
01-03-2022
TERRELL MARSHALL, #ND6745; Plaintiff, v. NELSON ANTHONY IANNUZZI, et al,, Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
Joseph F. Saporito, United States Magistrate Judge.
This is a federal civil rights action, brought under 42 U.S.C. § 1983. The plaintiff, Terrell Marshall, is a state prisoner incarcerated at SCI Frackville, located in Schuylkill County, Pennsylvania. The action was commenced on March 26, 2020, when Marshall lodged a pro se complaint with the court for filing, together with an application for leave to proceed in forma pauperis and supporting documents. (Doc. 1; Doc. 2; Doc. 3; Doc. 4.) On April 6, 2020, we granted the plaintiff leave to proceed in forma pauperis in this action and the complaint was deemed filed. (Doc. 7.)
The defendants have answered the complaint and the parties have had the opportunity to engage in the exchange of discovery. The defendants have filed a motion for summary judgment on the merits of the plaintiffs claims, together with a comprehensive copy of the plaintiffs medical records. (Doc. 40.) Together with their motion, the defendants have also filed a brief in support of the motion and a concise statement of material facts. (Doc. 41; Doc. 44.) The plaintiff has filed a brief in opposition, together with several supporting exhibits. (Doc. 47.) He has also filed a "counter statement of disputed material facts." (Doc. 48.) The defendants have filed a reply brief. (Doc. 49.) The motion is fully briefed and ripe for decision.
We note that, for the most part, the plaintiffs exhibits are excerpted medical records, which are duplicative of or cumulative to those submitted by the defendants,
I. Background
Terrell Marshall is a state prisoner incarcerated at SCI Frackville. On April 1, 2018, he suffered an injury to his left calf while playing basketball in the prison yard. Initially diagnosed as a sprained muscle, Marshall was ultimately diagnosed with deep vein thrombosis and compartment syndrome in his lower left leg, which required emergency surgical intervention about two weeks after the injury occurred. In this federal civil rights action, Marshall seeks to hold two medical providers at SCI Frackville-Dr. Haresh Pandya and certified registered nurse practitioner Tony Iannuzzi-liable for his injuries. He claims that, in the two weeks that elapsed between his injury and the emergency surgery, these two defendants were deliberately indifferent to his serious medical needs, delaying proper medical treatment, which caused the injury to worsen and caused him to suffer unnecessarily, in violation of his Eighth Amendment right to be free from cruel and unusual punishment, made actionable by 42 U.S.C. § 1983. He also asserts state-law medical negligence claims against these defendants based on the same conduct.
II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is "genuine" only if the evidence "is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that "the evidence presents a sufficient disagreement to require submission to the jury." Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials." Fed.R.Civ.P. 56(c)(1)(A). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). "Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial." Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
III. Undisputed Material Facts
In support of their motion for summary judgment, and in accordance with the local civil rules, the defendants have filed a statement of material facts, set forth in numbered paragraphs, with each statement supported by specific references to documentary exhibits or other parts of the record that support these statements. (Doc. 41.)
The plaintiff has filed his own "counter statement of disputed material facts." (Doc. 48.) This statement of facts by the plaintiff, however, does not respond to the numbered paragraphs set forth in the statement filed by the defendants. See M.D. Pa. L.R. 56.1. Nor does it contain any citations or references whatsoever to any parts of the record to support the plaintiffs statements. See Fed. R. Civ. P. 56(c)(1); M.D. Pa. L.R. 56.1. Under Local Rule 56.1, a party opposing summary judgment is required to file "a separate, short and concise statement of the material facts, responding to the numbered paragraphs" in the movants' statement of material facts. M.D. Pa. L.R. 56.1. The local rule does not permit a non-moving party to file an additional statement of material facts that does not respond to the movant's statement. See Farmer v. Decker, 353 F.Supp.3d 342, 347 n.l (M.D. Pa. 2018) (disregarding non-movant's additional statement of facts for non-compliance with Local Rule 56.1); Barber v. Subway, 131 F.Supp.3d 321, 322 n.l (M.D. Pa. 2015) (declining to consider separate counter-statement of facts that was non-responsive to the movant's statement because it was "neither contemplated nor permitted by the Local Rules"); see also Rau v. Allstate Fire & Cas. Ins. Co., 793 Fed.Appx. 84, 87 (3d Cir. 2019) (upholding district court decision to strike non-movant's non-responsive counter- statement of facts under Local Rule 56.1); Weitzner v. Sanofi Pasteur Inc., 909 F.3d 64, 613-14 (3d Cir. 2018) (upholding district court decision to strike non-responsive paragraphs from non-movant's answer to movant's statement of material facts under Local Rule 56.1). Accordingly, the court will disregard and strike the plaintiffs unsupported "counter statement of disputed material facts" because it does not comply with Local Rule 56.1. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (striking appellate brief "sua sponte under the inherent powers of the court"); Thomas v. Keystone Real Estate Grp. LP, No. 4:14-CV-00543, 2015 WL 1471273, at *8 (M.D. Pa. Mar. 31, 2015) (striking motion and accompanying brief and exhibits).
There are additional implications of the plaintiffs utter failure to respond to the defendants' particular statements of material facts, each of which is supported by reference to materials in the record. Under Rule 56 of the Federal Rules of Civil Procedure,
[a] party asserting that a fact... is genuinely disputed must support that assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited [by the movant] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Our local rule similarly provides that "[statements of material facts ... in opposition to[ ] a motion [for summary judgment] shall include references to the parts of the record that support the statements." M.D. Pa. L.R. 56.1. Not only is the plaintiffs counter-statement of facts entirely unresponsive to the numbered paragraphs of the defendants' statements of material facts, but the plaintiff has also failed to include any citations or references whatsoever to any parts of the record on summary judgment. (See Doc. 91.) Accordingly, the court will deem the defendants' statement of material facts admitted, and we will consider the facts asserted therein to be undisputed for purposes of the motion for summary judgment before us. See Fed. R. Civ. P. 56(e)(2).
Marshall is a state prisoner incarcerated at SCI Frackville. On April 1, 2018, at approximately 3:00 p.m., Marshall was brought to medical after sustaining an injury while playing basketball in the prison yard. Marshall reported having felt a "pop" in his left leg while jumping up for the ball, and then he experienced pain when placing weight on his left leg. On examination, a non-party nurse, Vincent Vespico, found that Marshall's left calf was 2 or 3 times larger than his right calf. The nurse gave Marshall crutches and ibuprofen, advised him to rest, and restricted him to "lay-m," except for meals, until he was seen at sick call.
The next day, April 2, 2018, Marshall was seen at sick call by defendant Tony Iannuzzi, a certified registered nurse practitioner. Marshall reported to Iannuzzi that, although he initially had been able to put weight on his injured left leg, after about two hours, the pain had increased to the point that he was unable to walk on it. On examination, Iannuzzi observed no bruising, redness, or instability, and he found that Marshall was able to wiggle his toes. Iannuzzi did observe, however, some "mild to minimal" swelling of Marshall's gastrocnemius muscle. Based on this and other observations, Iannuzzi diagnosed a medial calf muscle sprain and instructed Marshall to continue the use of ibuprofen and crutches. He also gave Marshall a medical pass to permit him to get ice as needed and to see nursing for ordered nursing assessments. Later that day, Marshall's block sergeant was advised of the medical restrictions by a non-party licensed practical nurse, Kimberly Cooper.
Iannuzzi had ordered Marshall to report for nursing assessments three times daily. Over the next five days, Marshall did not present to medical for any of his midday or evening assessments, but he was seen by nursing in the morning on four of the five days.
On the morning of April 7, 2018, Marshall was seen by a non-party registered nurse, Carla Orris, for an ordered neurovascular assessment. He complained to her that nothing had been done for his injury. Orris observed increased swelling to the medial calf and the posterior calf, with pain to the back of his calf and firmness and swelling of the toes. Orris documented that she called defendant Dr. Haresh Pandya at 8:30 a.m. regarding a positive Homan's sign test with "much pain" and edema to the back of the calf. She also reported these symptoms to Iannuzzi upon his arrival to medical. Iannuzzi advised her that Marshall's symptoms were attributable to his calf sprain, and he directed that Marshall continue to be assessed by nurses three times per day on the treatment line to monitor for possible compartment syndrome. Iannuzzi also recorded a progress note in Marshall's medical record noting that he had discussed the case with Orris, that Marshall's pain was localized, swelling was not significant, capillary refill was brisk, and he was able to wiggle his toes. Based on this, Iannuzzi found Marshall's condition to be unchanged, and he found no indication of neurovascular compromise.
The Homan's sign test is a physical examination procedure used to test for deep vein thrombosis.
That afternoon, around 1:50 p.m., Marshall returned to medical. Orris observed that swelling and pain remained unchanged, but she noted that his left foot was now cooler, which prompted her to take photographs and contact Dr. Pandya. In response, Dr. Pandya ordered that Marshall be transferred to a hospital for evaluation and treatment.
Marshall was transported to Lehigh Valley Hospital - Schuylkill Emergency Department for evaluation and treatment, where he was seen by a non-party emergency room physician, Timothy A. Henniger, at approximately 3:50 p.m. that afternoon. Marshall reported experiencing 8/10 pain and swelling to his left calf, which was aggravated by palpation and weightbearing. On examination, there was significant edema, with the left calf approximately twice the size of his right calf. A venous doppler ultrasound showed a thrombus (blood clot) in the left peroneal vein and a 3.4 x 4.7 x 6.4 cm complex cystic/fluid collection in the left calf, assessed to be a probable hematoma or muscle tear. Based on these findings, Dr. Henniger recorded a diagnosis of (1) deep vein thrombosis in the left lower extremity, and (2) either hematoma or partial gastrocnemius tear in the left lower extremity. In consultation with two other non-party physicians, Dr. Henniger discharged Marshall back to the prison, prescribing an anticoagulant medication, Eliquis, to treat the blood clot, toe-tap weightbearing on crutches for the leg, and follow-up with an orthopedist.
Upon discharge from the hospital, Marshall was transferred to the infirmary at SCI Mahanoy, another nearby prison, for 23-hour observation. That evening, a non-party registered nurse, Janice Hale, noted Marshall's emergency room diagnoses, and she administered ibuprofen for pain. The next morning, a non-party registered nurse, Michele Donovan, noted Marshall's complaints that his calf was really swollen and hurt "really bad." On examination, she noted grade 3 edema to his left calf but positive pedal pulse and toe movement. She noted that he had already been medicated for pain that morning and instructed him to continue to move his toes while in bed and to keep his calf elevated.
Later that same day, April 8, 2018, Marshall was seen by defendant Iannuzzi on medical rounds. Iannuzzi noted that Marshall continued to complain of medial upper calf pain and now lateral calf pain and proximal shin pain, which evolved about one day earlier. Marshall denied cold or numb extremities. On examination, Iannuzzi noted positive pedal pulse and toe movement, moderate left medial and left lateral gastrocnemius swelling that extended from the proximal tibial border to approximately 12 cm caudal from that border. He observed no significant swelling away from this area. Iannuzzi noted a diagnosis of medial calf muscle sprain and deep vein thrombosis. He prescribed an anticoagulant medication, Lovenox, and a blood thinner, Coumadin, to treat the blood clot, ordered follow-up physical therapy and labwork, and instructed Marshall to continue the use of ibuprofen and crutches. He discussed Marshall's case with the medical director and approved Marshall's transfer back to SCI Frackville.
Marshall was discharged from the infirmary at SCI Mahanoy at 6:10 p.m. on April 8, 2018, and he was transferred back to SCI Frackville. Following his discharge from the infirmary, defendant Iannuzzi entered an order for Marshall to be seen at the treatment line three times per day to assess neurovascular function, which continued until April 11, 2018. Between April 8 and April 11. however, Marshall only reported to the treatment line three times for assessment as directed.
The defendants note in their statement of facts that records indicate that Marshall only reported to the treatment line three times for assessment between April 8 and April 11, but we note that other medical records reflect that, at the time of at least one of these purportedly missed assessments, Marshall was being seen by Iannuzzi. The specific dates when Marshall reported for his prescribed treatment-line assessments is immaterial. It is clear from the defendants' statement of material facts and the supporting documentation that Iannuzzi ordered regular, thrice daily assessments, and Marshall failed to report for some of them.
Upon Marshall's return to SCI Frackville that evening, he was seen by a non-party registered nurse, Kathleen Shorts. The nurse noted his complaints of 10/10 pain, but no increase in swelling or redness of leg, no fever, coolness, or numbness in his leg, and no other worsening symptoms or concerns. Marshall was given crutches and his medication, and he was instructed to rest, take his pain medications, and report to medical if he experienced shortness of breath, chest pain, increased swelling or redness of the leg, numbness, or fever.
At 11:50 p.m. that night, April 8, 2018, Shorts was called to the housing block to see Marshall, who complained of leg pain and his concern that the clot might be moving. Shorts encouraged Marshall to perform the exercises he was shown in the infirmary and to keep his leg warm with a blanket or thermal shirt. She discussed his condition and technique for easing anxiety. She also discussed the adverse effects of overuse of pain medication while on anticoagulant therapy. On instructions from Dr. Pandya, Marshall's medication order was changed to "direct observation therapy" to prevent overuse.
On the morning of April 9, 2018, Marshall was seen by Iannuzzi on the provider line. Marshall reported left medial and lateral calf pain, especially with palpation, but no cold or numb extremities or other complaints. On examination, Iannuzzi noted moderate left medial and lateral gastrocnemius swelling that was maximally 22 cm from the cephalic border. He noted that the girth of Marshall's left calf was 18.75 inches compared to 15.75 inches for the same point on his right calf. Iannuzzi noted no significant swelling outside the area of maximal swelling, no foot swelling, and no significant ankle swelling or redness. Iannuzzi noted in his assessment "[n]o current indication of clinically significant compartment syndrome," medically well-managed deep vein thrombosis, and adept crutch use by Marshall.
Later that same morning, April 9, 2018, Marshall was seen by Dr. Pandya, who explained that the ultrasound taken at the hospital two days earlier only showed peroneal vein thrombosis, and that Marshall's popliteal and saphenous vein systems were open. He noted that the ultrasound also showed a small, 1.4 x 1.9 x 2.6 inch cyst or collection of fluid in the soleus compartment medial side. On examination, Dr. Pandya observed some bluish tinge and swelling to the medial malleolus suggestive of the tracking of blood inferiorly along fascial planes. Dr. Pandya also noted tenderness to the ankle with range of motion, indicating a possible mild ankle sprain. Based on the foregoing, Dr. Pandya diagnosed a small deep tear, likely in the soleus close to the medial side and peroneal vein thrombosis, which he expected to resolve slowly. Dr. Pandya advised Marshall to elevate his leg and to do his leg movements every hour while lying in bed. He also cautioned Marshall against exceeding prescribed dosages of ibuprofen or acetaminophen while also on anticoagulant therapy. Dr. Pandya scheduled a follow-up evaluation for Wednesday, April 11, 2018.
On the morning of April 11, 2018, Marshall presented to medical for a follow-up neurovascular assessment with defendant Iannuzzi. Marshall reported calf pain with movement or jarring. On examination, Iannuzzi noted a 3/8-inch difference in the diameter of Marshall's left and right calves, but no current sign of significant compartment syndrome. Iannuzzi noted that he discussed Marshall's case with the medical director, and he ordered the continuation of Marshall's thrice-daily treatment-line neurovascular assessments by nursing. He also started Marshall on nortriptyline for pain.
Later that evening, at 6:15 p.m., Marshall ambulated to the medical department using crutches to complain of leg pain and edema. On examination, a non-party registered nurse, Chad Yordy, observed edema with a bluish tinge on Marshall's left foot. Because Dr. Pandya was present in medical at the time, Yordy referred Marshall to him for further evaluation.
Marshall presented to Dr. Pandya, complaining of ankle pain and foot swelling. Marshall advised that the nortriptyline had helped with the pain, but now his left foot was numb all over. Marshall complained to Dr. Pandya that the nurses would not see him three times per day as Iannuzzi had directed, but only twice daily. He argued that he should have remained in the infirmary, and he requested to be sent to the emergency room immediately for x-rays and an ultrasound. He demanded a quicker resolution to his pain as well. On examination, Dr. Pandya observed that, based on measurement of the circumference of Marshall's calf, swelling was down a half-inch from the day before. Dr. Pandya noted left foot edema on the dorsum. He noted tenderness inferior to medial malleolus. In his treatment notes, Dr. Pandya noted that swelling of the foot is to be expected as the clot breaks down, and he commented that the patient was receiving erroneous information from home and getting agitated and argumentative. Dr. Pandya suggested that Marshall might not be lying down and elevating his leg as often as directed, and he noted that Marshall had only reported to the pill line for ibuprofen twice in the past three days. Dr. Pandya noted that the plan was to see Marshall again the next day, when he hopefully would be calmer. Dr. Pandya advised Marshall that swelling would lower in the future as the clot broke up. Later that evening, Dr. Pandya submitted a consultation request for Marshall to undergo a repeat ultrasound the next day.
The next morning, April 12, 2018, Marshall was seen by Dr. Pandya. Marshall complained that his calf was still hurting, and he acknowledged that his numbness might have lessened. On examination, Dr. Pandya noted that swelling of the calf remained the same, but swelling of the left forefoot was down. He noted that Marshall could wiggle his toes. He recorded an assessment of "[i]mproved or same because of resting at night." Dr. Pandya noted that Marshall would undergo an ultrasound soon, and that he would order an x-ray for the next day.
Later that day, Marshall was transported to Lehigh Valley Hospital - Schuylkill for a venous doppler ultrasound of his left lower extremity, using his April 7, 2018, ultrasound as a comparison study. This new ultrasound study showed an occlusive left calf deep vein thrombosis involving the posterior tibial and peroneal veins. The non-party radiologist, Kenneth Cavorsi, noted that the clot had been seen previously in the left peroneal vein, but the clot in the posterior tibial veins was new. There was no evidence of above-the-knee deep vein thrombosis, but Cavorsi found proximal left calf complex collection, likely hematoma, which appeared larger than on the previous scan, now measuring 12.4 x 4.5 x 8.3 cm.
At 5:13 p.m. that day, April 12, 2018, a non-party nurse, Holli Nigh, noted in Marshall's record that medical had received a call from the hospital reporting the ultrasound findings directly to Dr. Pandya. She noted that Dr. Pandya ordered Marshall be admitted to the infirmary at SCI Mahanoy with a diagnosis of deep vein thrombosis with calf hematoma. The nurse called the infirmary at SCI Mahanoy, which accepted the inmate. Twenty minutes later, at 5:37 p.m., Nigh noted that Dr. Pandya had cancelled the infirmary admission and directed that Marshall be returned from the hospital to SCI Frackville.
Shortly thereafter, Nigh noted in Marshall's record that he had returned to SCI Frackville from the hospital at 6:01 p m On examination, Nigh observed that Marshall's lower left extremity was cool to the touch, with pitting edema, pedal pulse present, and capillary refill in less than three seconds. She noted that Marshall was upset that he wasn't admitted to either the infirmary or the hospital. She advised Marshall that Dr. Pandya was aware of the ultrasound report and would follow up with him in the morning.
Late that night, April 12, 2018, Marshall presented to medical complaining of spitting up blood, shortness of breath, and anxiety. Nurse Shorts contacted Dr. Pandya, who ordered Marshall transported to Geisinger Medical Center in Danville for further evaluation and treatment.
Following his arrival at Geisinger Medical Center that night, April 12, 2018, Marshall was admitted with diagnoses of compartment syndrome and infection in his left lower extremity. After providing his written informed consent, Marshall underwent emergency fasciotomy surgery the next day, April 13, 2018, which was performed by non-party orthopedic surgeons Matthew Gregory Fanelli and Daniel Scott Horwitz. He returned to the operating room for debridement and irrigation on April 14, 2018, which was performed by non-party orthopedic surgeons Mark Alan Seeley and Kirsten Sumner. He returned to the operating room for a third time on April 16, 2018, for debridement and closure of the surgical wound, which was performed by non-party orthopedic surgeons Dr. Horwitz and Shannon Alejandro, assisted by a non-party physician assistant, Michael Hufnagle. No. complications of surgery were encountered, and Marshall was discharged back to prison on April 17, 2018, with orders to return for a follow-up appointment with Dr. Horwitz in two weeks.
Marshall was discharged from Geisinger Medical Center to the infirmary at yet another state prison, SCI Dallas, where he recovered from surgery. He remained there until May 16, 2018, at which time his stitches had been removed, his pain was much improved, and his leg was fully weight-bearing with no restrictions, other than advice to wait an additional four to six weeks before resuming normal activities such as running, jumping, and lifting. He did have some decreased range of motion in his left knee and ankle, and a slight limp secondary to left ankle stiffness. In follow-up encounters, he generally reported no calf pain but some ankle stiffness. Although the post-operative condition Marshall's left leg was monitored by medical staff over the following months and years, his medical records do not depict any notable ongoing issues with respect to this injury to his lower left leg.
The defendants' statement of material facts continues on, post-surgery, describing each of the plaintiffs medical treatment encounters concerning his left lower extremity. But the plaintiffs pro se complaint addresses the pre-surgical delay of treatment in early April 2018 only. We find this additional medical history immaterial to the disposition of the plaintiffs claims, and thus further recitation unnecessary.
IV. Discussion
The plaintiff claims that, in failing to send him to a hospital for treatment by medical specialists earlier, Dr. Pandya and CRNP Iannuzzi were deliberately indifferent to his serious medical needs, in violation of his federal constitutional rights. In the alternative, the plaintiff claims that the delay constituted state-law medical negligence. Based on the undisputed facts recited above, the defendants have moved for summary judgment on the merits of the plaintiffs claims.
A. § 1983 Deliberate Indifference Claims
The plaintiff has brought § 1983 federal civil rights claims against the defendants based on a purported delay in referring him to an outside hospital for specialized medical treatment.
The Eighth Amendment to the United States Constitution protects prisoners from cruel and unusual punishment, including "the unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1, 5 (1992). To prevail on an Eighth Amendment claim, an inmate must show: (1) a deprivation that is objectively sufficiently serious; and (2) "a sufficiently culpable state of mind" of the defendant official. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). There are different standards for Eighth Amendment violations depending on the type of claim. An Eighth Amendment challenge to prison conditions such as this is subject to the deliberate indifference standard. See Id. at 835-36. Prison officials are deliberately indifferent when they know of and disregard a substantial risk of harm to a prisoner. Id. at 836. Moreover, a prisoner must produce evidence of serious or significant physical or emotional injury resulting from the challenged prison condition. Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
To be liable on a deliberate indifference claim, a defendant prison official must both "know[ ] of and disregard[ ] an excessive risk to inmate health or safety." The knowledge element of deliberate indifference is subjective, not objective knowledge, meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware. However, subjective knowledge on the part of the official can be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk. Finally, a defendant can rebut a prima facie demonstration of deliberate indifference either by establishing that he did not have the requisite level of knowledge or awareness of the risk, or that, although he did know of the risk, he took reasonable steps to prevent the harm from occurring.Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (quoting and citing Farmer, 511 U.S. at 837-38, 842, 844) (citations omitted) (alterations in original).
To state a cognizable Eighth Amendment claim for improper medical care, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). "This standard is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoner's medical needs to be serious." West v. Keve, 571 F.2d 158, 161 (3dCir. 1978).
With respect to the deliberate indifference prong of the Estelle standard, prison medical authorities are given considerable latitude in the diagnosis and treatment of inmate patients. Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). "[M]ere allegations of malpractice do not raise issues of constitutional import." Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). A mere difference of opinion between the prison medical staff and the inmate regarding the diagnosis or treatment received by the inmate does not constitute deliberate indifference. Id. at 346; Farmer v. Carlson, 685 F.Supp. 1335, 1339 (M.D. Pa. 1988). Moreover, a prison doctor's use of a different treatment regimen than that prescribed by a private physician does not amount to deliberate indifference. Johnson v. Cash, 557 Fed App'x 102, 104 (3d Cir. 2013) (per curiam) (citing McCracken v. Jones. 562 F.2d 22, 24 (10th Cir. 1977)). "While the distinction between deliberate indifference and malpractice can be subtle, it is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). The key question is whether the defendant provided the inmate with some type of treatment, regardless of whether it is what the plaintiff desires. Farmer, 685 F.Supp. at 1339. A plaintiff must show that the defendant "knows of the prisoner's need for medical treatment but intentionally refuses to provide it, delays necessary medical treatment for a non-medical reason, or prevents a prisoner from receiving needed medical treatment." Lopez v. Corr. Med. Servs., Inc., 499 Fed.Appx. 142, 146 (3d Cir. 2012).
With respect to the serious medical need prong of the Estelle standard, a serious medical need exists if failure to treat such condition would constitute a "denial of the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 825.
[T]he concept of a serious medical need . . . has two components, one relating to the consequences of a failure to treat and one relating to the obviousness of those consequences. The detainee's condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury, or death. Moreover, the condition must be "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention."Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (quoting Lanzaro, 834 F.2d at 347).
Here, Marshall's federal civil rights claims rely solely on his own lay opinion regarding the proper course of treatment for his calf injury. But to survive summary judgment, the plaintiff is required to point to some evidence to show that the defendants knew or were aware of a substantial risk of serious harm to him based on their prescribed course of treatment for his calf injury. See Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001). The evidence of record demonstrates that, over the course of the several days following his initial injury, Marshall was regularly seen and evaluated by the defendants and other medical staff to assess and treat his calf injury. Marshall does not contend that he was denied treatment altogether, but merely that he did not receive the treatment that he desired--outside medical evaluation and surgery-when he wanted it. He has failed to demonstrate anything more than a difference of opinion between himself and his prison medical providers with respect to the appropriate course of treatment for his calf injury. Indeed, we note that his complaint characterizes the defendants' conduct not as intentional acts or deliberate indifference, but as mere "medical malpractice[, ] misdiagnosis[, ] and negligence." (Doc. 1, at 3.) Based on the foregoing, the defendants are entitled to summary judgment with respect to the plaintiffs § 1983 federal civil rights claims based on allegedly inadequate medical treatment. See Lanzaro, 834 P.2d at 346 (deliberate indifference may be shown only where prison officials have actual knowledge of the need for treatment, yet intentionally refuse to provide any appropriate care).
Accordingly, it is recommended that the defendants' summary judgment motion be granted with respect to the plaintiffs § 1983 federal civil rights claims.
B. State-Law Medical Negligence Claims
The plaintiff brings state-law medical negligence claims against the defendants as well, arising out of the same conduct by Dr. Pandya and CRNP Iannuzzi, both of whom are licensed medical professionals.
"Pennsylvania courts have defined medical malpractice as the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services." Laskowsi v, U.S. Dep't of Veterans Affairs, 918 F.Supp.2d 301, 313 (M.D. Pa. 2013) (quoting Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. Ct. 2005) (internal quotation marks omitted)).
To recover on a theory of medical malpractice under Pennsylvania law, the plaintiff must establish:
(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.Id. (quoting Thierfelder v. Wolfert, 52 A.3d 1251, 1264 (Pa. 2012)).
The standard of care in Pennsylvania malpractice cases is measured by the skill generally possessed and employed by practitioners of the profession. Expert testimony is required to establish the relevant standard and whether the defendant complied with that standard, except where the matter under investigation is so simple, and the lack of skill so obvious, as to be within the range of the ordinary experience and comprehension of non-professional persons.Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474, 480 (3d Cir. 1979).
"Instances in which expert opinions are unnecessary in a medical malpractice case are rare." Laskowski, 918 F.Supp.2d at 313 n.9. Based upon our review of the record, this is not one of those rare cases. Under Pennsylvania law, the only exception to the requirement of expert witness testimony in medical malpractice cases 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 non-professional persons." Hightower-Warren v. Silk, 698 A.2d 52, 54 n.l (Pa. 1997). Malpractice cases that do not require expert testimony generally involve "gross incompetence." See McCool v. Dep't of Corr., 984 A.2d 565, 571 (Pa. Commw. Ct. 2009); see also, e.g., Lambert v. Soltis, 221 A.2d 173, 176 (Pa. 1966) ("[F]or example, where a gauze pad is left in the body of a patient following an operation, . . . where a surgeon engaged in removing a tumor from a patient's scalp would let his knife slip and cut off his patient's ear, or where he undertook to stitch a wound on his patient's cheek and . . . thrust his needle into the patient's eye."); Smith v. Yoke, 194 A.2d 167, 172-73 (Pa. 1963) (expert testimony not necessary where physician failed to take diagnostic x-rays to rule out the possibility of fractures after an elderly patient had fallen, causing paralysis on one side, extreme pain, and obvious displacement).
Here, while it may not have been the more aggressive medical treatment by outside specialists that he desired, the evidence clearly establishes that Marshall received prompt medical treatment for his injury after it occurred on April 1, 2018. In the days that followed, his injury was monitored and assessed daily by medical staff. When changes m his condition prompted it, Marshall was sent to outside medical providers or to a hospital emergency room for further evaluation. Whether Marshall should have been referred for outside medical treatment or surgery earlier under these circumstances is not a matter within the knowledge of the average layperson. There is no evidence that the care he received from the defendants deviated from accepted medical standards, or that their alleged deviations were the proximate cause of any injuries. Nor is it a matter of common knowledge to determine what injury, if any, Marshall may have sustained as a result of the alleged delay m surgery. Thus, viewing the undisputed facts in the light most favorable to the non-moving plaintiff, it is far from clear that the conduct described by Marshall rises to the level of gross incompetence, and therefore, expert testimony is necessary to establish the elements of his medical malpractice claim. Cf, Boring, 833 F.2d at 473-74; Miller, 699 F.Supp.2d at 712.
We note that defendant Iannuzzi ordered assessments to be conducted three times daily, but medical records indicate that Marshall was a routine "no show" for these assessments.
"When a plaintiff fails to proffer the required expert evidence in response to a properly supported motion for summary judgment, summary judgment is appropriate." Redding v. Estate of Sugar man, 535 Fed.Appx. 99, 101 (3d Cir. 2013) (per curiam). Marshall has failed to proffer the expert evidence necessary to establish the relevant standard of care in this case, and whether these defendants complied with that standard.
We note that, at an earlier stage in this litigation, Marshall chose to file Rule 1042.3(a)(3) certificates of merit with respect to both defendants, certifying that "expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim." See Pa. R. Civ. P. 1042.3(a)(3). (Doc. 19.) As a result of this affirmative strategic choice, Marshall is now barred from offering expert testimony. See Alsop v. Fed. Bureau of Prisons, Civil Action No. 3:17-cv-02307, 2019 WL 6049248, at *3 (M.D. Pa. Nov. 14, 2019) (citing Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011)).
Accordingly, it is recommended that summary judgment be granted in favor of the defendants and against the plaintiff with respect to the plaintiffs state-law medical negligence claims.
V. Recommendation
For the foregoing reasons, it is recommended that:
1. The defendants' motion for summary judgment (Doc. 40) be GRANTED;
2. The Clerk be directed to enter JUDGMENT in favor of the defendants and against the plaintiff with respect to all claims; and
3. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 3, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. 36