Opinion
Civil Action No. 19-1385
03-05-2021
COREY BRACEY, Plaintiff, v. COREY VALENCIA, Corrections Officer I, MCLAREN MEDICAL LABORATORY, M.D. DENNIS W. SPENCER, Laboratory Director, WARD MEDICAL LABORATORY, M.D. WILLIAM G. FINN, Laboratory Director, GARCIA CLINICAL LABORATORY, M.D. LORENZ P. KIELHORN, Laboratory Director, CHRISTOPHER COLGAN, Corrections Officer I, and Lieutenant Morris, Defendants.
District Judge William S. Stickman, IV
Re: ECF Nos. 112, 115, 118 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Corey Bracey ("Bracey") brings this pro se action pursuant to 42 U.S.C. § 1983 for the alleged violation of his rights arising out of a physical altercation with corrections officers at the State Correctional Institution - Greene ("SCI - Greene"). One of the involved officers sustained a bite wound in the altercation, and Bracey was required to undergo blood tests to determine whether he suffered from a communicable disease that could place the officer at risk. In addition to Bracey's excessive force and conspiracy claims against the officers, he asserts state law claims against the clinical laboratory Medical Defendants ("Medical Defendants") for allegedly issuing false positive reports reflecting that Bracey suffered from Hepatitis C. ECF No. 107.
By Order entered November 16, 2020, Bracey's defamation claims against the Medical Defendants were dismissed as barred by the applicable one-year statute of limitations. His Fourteenth Amendment reputational injury claims also were dismissed as deficient as a matter of law. In light of his pro se status, Bracey was granted leave to file a second amended complaint to correct the identified deficiencies in his first Amended Complaint. ECF No. 106. Bracey timely filed his second Amended Complaint ("Second Amended Complaint"), ECF No. 107, and he now asserts "negligence and/or malpractice" and third-party beneficiary contract claims against the Medical Defendants. Id. ¶ 56, ECF No. 129 at 3-4.
Pending before the Court are motions to dismiss filed on behalf of Garcia Clinical Laboratory ("Garcia") and Lorenz P. Kielhorn ("Kielhorn"), ECF No. 112; McClaren Medical Laboratory ("McClaren") and Dennis W. Spender ("Spender"), ECF No. 115, William G. Finn ("Finn") and Warde Medical Laboratory ("Warde"), ECF No. 118.,
Bracey incorrectly identified Defendant Warde as "Ward Medical Laboratory" and Defendant Spender as "Spencer" in his pleadings and in the caption of this matter. ECF Nos. 132 at 5, 134 n.1. The Court refers to these Defendants by their correct names.
Also pending before the Court was a Motion to Dismiss filed on behalf of Corrections Officers Corey Valencia, Christopher Colgan and Lieutenant Morris. ECF No. 109. The Court addressed this motion separately. ECF No. 136.
For the following reasons, it is recommended that the Court grant each Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and dismiss all claims against the Medical Defendants.
II. REPORT
A. FACTUAL BACKGROUND
The Report and Recommendation issued October 22, 2020, ECF No. 102, recounts the factual and procedural history of this matter, and so only the facts relevant to the pending motions are set forth.
Bracey alleges he suffered a mental health episode on October 17, 2017 and engaged in a physical altercation with corrections officers. ECF No. 107 ¶ 29. One of the officers suffered a bite wound and Bracey was required to undergo blood tests to determine whether he suffered from a communicable disease placing the officer at risk. Id. ¶¶ 30, 46. Bracey's test sample was forwarded to the named Medical Defendants for testing. Id. ¶ 47. Bracey asserts that each of the Medical Defendants returned reports stating that Bracey tested positive for Hepatitis C. As a result, criminal assault charges lodged against Bracey for his conduct in the altercation were upgraded in degree. It was later determined that the initial test results were in error, and the added criminal charges were withdrawn. Id. ¶¶ 48-49, 51-52. Bracey broadly claims that in issuing the reports, the Medical Defendants engaged in "negligence and/or malpractice," and caused him to suffer mental distress and ridicule from fellow inmates who learned of the report. Id. ¶¶ 53, 56. Bracey seeks declaratory relief, as well as an award of compensatory, punitive, and nominal damages.
See Commonwealth v. Bracey, No. CP-30-CR-0000014-2018 (CCP Greene County, Pennsylvania), https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-30-CR-0000014-2018&dnh=4n%2Ft0%2B%2BAomHvcfVBnJ1QuA%3D%3D (last accessed February 25, 2021).
The Medical Defendants timely filed the pending Motions to Dismiss, ECF Nos. 112, 115, 118, and briefs in support, ECF Nos. 113, 116, 119. In addition to their Motion to Dismiss, McClaren and Spender alternatively request that the Court grant summary judgment in their favor because the only results issued by them do not reflect that Bracey tested positive for Hepatitis C. ECF Nos. 115 and 115-1. In support of this alternative relief, McClaren and Spender present an affidavit of McClaren's Manager of Patient Safety, Compliance and Quality, who states that Bracey tested negative for Hepatitis C and therefore McClaren and Spender "did not report that Mr. Bracey was positive to Hepatitis C or any other variant Hepatitis." ECF Nos. 127, 127-1.
Bracey filed three nearly identical responses to the Motions to Dismiss, ECF Nos. 129,130, and 131, and agrees to consideration of the alternative summary judgment relief requested by the Medical Defendants. To that end, Bracey opposes each motion and presents three reports printed by Garcia on August 25, 2020. These reports appear to suggest that a test performed on November 2, 2020 at Warde Medical Laboratory under the supervision of Finn as Medical Director returned a positive result for Hepatitis C. ECF No. 129-1. A second test report was issued on December 28, 2017, and a third test report was issued on July 20, 2018. These later tests show that Bracey tested negative for Hepatitis C. ECF No. 129-2.
McClaren and Spender filed a reply, ECF No. 132, arguing that Bracey's own exhibits reveal that neither had a role in the allegedly erroneous November 2, 2017 report. Garcia and Kleihorn concede that neither join in the request for summary judgment but argue that Bracey's negligence claims are barred by the statute of limitations and his failure to file a Certificate of Merit and are otherwise inadequately stated. ECF No. 133. Finn and Warde filed a reply arguing that dismissal is warranted based on the applicable statute of limitations and because Bracey fails to adequately state claims for relief. ECF No. 134. Alternatively, Finn and Warde request that their Motion to Dismiss also be converted to a Motion for Summary Judgment based on evidence that Warde never tested Bracey for Hepatitis C. Instead, the only test conducted by Warde was for the Hepatitis B "e" antigen, to determine whether Bracey suffered from active Hepatitis B infection. That test returned a negative result. ECF No. 134-1. Bracey filed a sur-reply arguing that he has properly plead a contract claim and that there are issues of fact relative to the accuracy of the tests that preclude summary judgment. ECF No. 135.
B. STANDARD OF REVIEW
1. Motion to Dismiss
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face," id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels and conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice. Rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim."). Id. at 233, 234.
2. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that: "[t]he court shall grant summary judgment if the movant shows that 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). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof"). Thus, summary judgment is warranted where, "after adequate time for discovery and upon motion ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; see also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). "[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotations omitted).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
3. Pro Se Pleadings and Filings
Pro se pleadings and filings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A "petition prepared by a prisoner ... may be inartfully drawn and should ... be read 'with a measure of tolerance'"); Freeman v. Department of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Still, there are limits to the court's procedural flexibility — "pro se litigants still must allege sufficient facts in their complaints to support a claim .... they cannot flout procedural rules — they must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Thus, because Bracey is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Bracey's initial Complaint and first Amended Complaint alleged two causes of action against the Medical Defendants: defamation and a related Fourteenth Amendment claim. ECF No. 8 ¶¶ 45, ECF No. 39 ¶¶ 54-56. Early in the litigation, Warde, Finn and Kielhorn construed both claims as implicating professional liability and sought to enter judgment against Bracey due to his failure to file Certificates of Merit pursuant to Pa. R. Civ. P. 1042.3. ECF Nos. 15, 22, 26. In accordance with the Federal Rules of Civil Procedure, the Court struck the judgment entered by Warde and Finn and held that this issue must be raised through a dispositive motion. ECF No. 30.
In the interim, Bracey filed Certificates of Merit with copies of mental health visit summaries that set forth his stated anxiety over the false positive test result. ECF No. 53. Bracey alternatively argued that given the nature of his defamation claim, Certificates of Merit were not required. ECF No. 54 ¶¶ 1-3. The Court determined that the issue was not properly before it but if Pennsylvania's Certificate of Merit requirement applied to his claims, Bracey's documents were insufficient. ECF No. 55 at 3 (citing Pa. R. Civ. P. 1042.3(a)(1)-(3)).
Each of the Medical Defendants moved to dismiss the first Amended Complaint raising the absence of compliant Certificates of Merit and the legal insufficiency of his claims. ECF Nos. 60, 63, 66. Bracey maintained his argument that Certificates of Merit are not required due to the absence of a direct professional relationship. See, e.g., ECF No. 82 at 1-2. In addition, he conceded that while his defamation claims may be time-barred, his first Amended Complaint could survive because he stated professional negligence claims against the Medical Defendants. ECF No. 82 at 2-3; ECF No. 83 at 2-3 and ECF No. 84 at 2-3. The Court found, however, that the pleadings did not set forth or identify negligence or professional liability claims and Bracey could not amend his complaint through a response in opposition to a motion to dismiss. ECF No. 102 (citing Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) ("[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.").
Due to Plaintiff's pro se status, it was recommended that the Court grant Bracey leave to file a Second Amended Complaint "that clearly sets forth the factual basis for any legal claims against the Medical Defendants not otherwise dismissed with prejudice." ECF No. 102 at 9. The Court noted that an open question remained as to whether such claims would relate back to the date of filing for purposes of the statute of limitations. Id. at 9 n.4. By Order dated November 16, 2020, the recommendation was adopted, and Bracey was granted leave to file his Second Amended Complaint. ECF No. 106. Bracey timely filed the operative Second Amended Complaint. ECF No. 107. Thus, the issues of the timeliness of Bracey's claims and the necessity for a Certificate of Merit are now squarely before the Court.
1. Statute of Limitations and Relation Back
Despite Bracey's early insistence that his claims against the Medical Defendants were limited to Fourteenth Amendment reputational damage and state law defamation, he has adopted the position that the Medical Defendants committed "negligence and/or malpractice" by issuing a false positive test result.
In Pennsylvania, "any action ... to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct" must be commenced within two years. 42 PA. CONS. STAT. § 5524. Bracey alleges the erroneous test result was reported on November 1, 2017 and that he learned of the error "months later." ECF No. 107 ¶¶ 48, 51. Bracey's Second Amended Complaint was filed on November 30, 2020, beyond the two-year statute of limitations for newly asserted negligence claims. Id. Thus, his claims against the Medical Defendants are barred unless they relate back to the date the initial Complaint was filed on October 24, 2019.
Under Federal Rule of Civil Procedure 15(c)(1), an amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
Fed. R. Civ. P. 15(c)(1).(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
"If the amendment relates back to the date of the filing of the original complaint, the amended complaint is treated, for statute of limitations purposes, as if it had been filed at that time." Garvin v. City of Phila., 354 F.3d 215, 220 (3d Cir. 2003) (citing Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 189 (3d Cir. 2001)). The United States Court of Appeals for the Third Circuit has observed that,
Relation back is structured "to balance the interests of the defendant protected by the statute of limitations with the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits." Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 130 S.Ct. 2485, 2494, 177 L.Ed.2d 48 (2010). Where an amendment relates back, Rule 15(c) allows a plaintiff to sidestep an otherwise-applicable statute of limitations, thereby permitting
resolution of a claim on the merits, as opposed to a technicality. See id. At the same time, Rule 15(c) endeavors to preserve the important policies served by the statute of limitations—most notably, protection against the prejudice of having to defend against a stale claim, as well as society's general interest in security and stability—by requiring "that the already commenced action sufficiently embraces the amended claims." Nelson v. Cnty. of Allegheny, 60 F.3d 1010, 1014-15 (3d Cir.1995).Glover v. F.D.I.C., 698 F.3d 139, 145 (3d Cir. 2012).
Bracey contends that because of the identity of facts and his confusion over potential claims as a pro se litigant, the Court should conclude that his negligence claims relate back to the filing date of the original Complaint. ECF No. 129 at 2. Bracey further argues that none of the Medical Defendants will sustain prejudice because each has acknowledged that professional liability is at the heart of his claims. The Court agrees.
Bracey's briefs in opposition to the pending Medical Defendants' Motions to Dismiss are essentially identical. Thus, the Court cites only to ECF No. 129 as the exemplar for all.
"Only where the opposing party is given 'fair notice of the general fact situation and the legal theory upon which the amending party proceeds' will relation back be allowed. Conversely, amendments 'that significantly alter the nature of a proceeding by injecting new and unanticipated claims are treated far more cautiously.'" Glover, 698 F.3d at 146 (citations omitted).
Here, Bracey's negligence claims arise out of the same facts and conduct set forth in the original Complaint. Moreover, the Medical Defendants plainly understood the underlying nature of Bracey's defamation claim as an attack on whether the tests resulted from a departure from the standard of care owed by clinical testing providers. See, ECF No. 24 at 5 (McClaren and Spender, "Motion to Compel Plaintiff to File Certificate of Merit,") ("[t]his case undoubtedly is a case alleging professional and medical malpractice"); ECF No. 31 at 10 (Warde and Finn, "Motion to Dismiss") ("This case undoubtedly is a case alleging medical professional liability"), ECF No. 35 at 11-12 (Garcia and Kielhorn, "Motion to Dismiss") ("the claims against Dr. Kielhorn relate to medical professional negligence").
Thus, pursuant to Rule 15(c) and despite the labeling of claims in the initial pleadings, the Court finds that Bracey's professional negligence claims relate back to the date the initial Complaint was filed and are not time barred. It is recommended that the Court deny the motions to dismiss based on the statute of limitations.
2. Certificates of Merit
The Medical Defendants argue that if not barred by the statute of limitations, Bracey's professional negligence claims must be dismissed for his continued failure to file Certificates of Merit that meet the requirements of Rule 1042.3. Bracey responds that under binding precedent, the Certificate of Merit requirement does not apply to him because he did not have a direct physician-patient relationship with any of the Medical Defendants. ECF No. 129 at 2-3.
Rule 1042.3 applies to any "civil action in which a professional liability claim is asserted by or on behalf of a patient or client of the licensed professional against (1) a licensed professional, and/or (2) a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard." Pa. R. Civ. P. 1042.1(a). Rule 1042.3 provides, in pertinent part:
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
In Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014), the Pennsylvania Supreme Court examined the nature of the "patient or client" relationship necessary for the rule to apply. The plaintiffs sued their homeowners' insurance company and a forensic engineer retained by that company after the engineer incorrectly informed the plaintiffs that mold discovered inside the walls of their new home was harmless. Id. at 51. The plaintiffs asserted a professional negligence claim against the engineer. Id. at 53. After the claim was dismissed for failure to file a Certificate of Merit, the Pennsylvania Supreme Court reversed because the engineer had been retained by their insurance company and plaintiffs were not the engineer's "patient or client."
[T]he plain language of Rule 1042.1 expressly cabins the application of the requirements of Rule 1042.3 for the filing of a certificate of merit to only those professional liability claims which are asserted against a licensed professional 'by or on behalf of a patient or client of the licensed professional.' A certificate of merit is not, therefore, required for professional liability actions brought by plaintiffs who are not patients or clients of a licensed professional.Id. at 74. (citation omitted). In reaching this conclusion, the Court looked to the common and approved meaning of patient and client to determine the nature of the relationship that is required. Id. at 75. "[T]he accepted definition of the term 'patient,' means 'one under medical care.' The Merriam-Webster Dictionary 528 (2004); see also Black's Law Dictionary 1163 (8th ed.2009) (defining patient as '[a] person under medical or psychiatric care"). The leading relevant definition of the term "client" is "a person who engages the professional services of another." The Merriam-Webster Dictionary 134; see also Black's Law Dictionary 271 (defining client as "[a] person or entity that employs a professional for advice or help in that professional's line of work").'" Id. Citing Bruno, Bracey argues that the Medical Defendants were neither directly engaged by him nor "attending physicians," and thus there is no qualifying patient-physician relationship that requires a Certificate of Merit. ECF No. 129 at 3.
Unlike the "client" direct engagement at issue in Bruno, the Court's cabining of a "patient" as "one under medical care" extends Rule 1042.3 to care provided to a specific patient by referred diagnostic professionals for pathology or radiology or, as here, clinical laboratory work, at the direction of a treating physician. Each provides "medical care" to a specific patient in accordance with his or her own specialty.
So defined, courts have routinely required Certificates of Merit to pursue professional liability claims against medical providers despite the absence of a direct contractual relationship with the patient. See, Gannaway v. Prime Care Medical, Inc., 150 F. Supp. 3d 511, 530-31 (E.D. Pa. 2015) (state law medical negligence claims against medical providers under contract with Department of Corrections dismissed because plaintiff failed to file Certificates of Merit); Williams v. PA Dep't of Corrections, No. 3:18-CV-1150, 2019 WL 1434670, at *12 (M.D. Pa. Jan. 24, 2019), report and recommendation adopted in part, rejected in part sub nom. on other grounds, 2019 WL 1429349 (M.D. Pa. Mar. 29, 2019) (rejecting plaintiff's reliance on Bruno, concluding, "it cannot be reasonably argued that Plaintiff was not the de facto patient of the treating medical personnel at the prison. The Commonwealth's contract with CCS does not infringe upon Plaintiff's patient-physician relationship with the treating physicians. As such, Plaintiff's failure to produce a certificate of merit entitle[s] Defendants to dismissal of the professional negligence claims."); Cornish v. City of Philadelphia, No. 14-6920, 2016 WL 233691, at *7 (E.D. Pa. 2016) (also rejecting plaintiff's reliance on Bruno to avoid dismissal of claims against contracted medical providers and concluding, "Cornish was clearly a 'patient' of Wexford and Correct Care Solutions, both of which were in the business of providing medical care to prisoners such as Cornish.... In sum, Cornish must file certificates of merit as to Correct Care Solutions and Wexford."); see also, Smart v. Commonwealth, Dep't of Corrections, No. 631 C.D. 2017, 2018 WL 3130997, at *8 (Pa. Commw. Ct. June 27, 2018) (unpublished opinion) (concluding that claims against a Correct Care employee for allegedly negligently disclosing an inmate's positive HIV status implicate professional negligence and, under Pennsylvania law, a Certificate of Merit is required to proceed).
The district court in Smart concluded that the prisoner's claims challenged the contractor's employee's medical judgment within the scope of Rule 1042.3:
In this case, Smart alleges that the Correct Care Defendants were negligent with respect to Mr. O'Brien's disclosure of his HIV status. Smart incorrectly argues that such a determination does not involve a standard of care; rather, his claim amounts to a medical malpractice action. Smart asserts that Mr. O'Brien negligently disclosed his status as an HIV-carrier. It is clear that the alleged disclosure occurred within a professional relationship, as Mr. O'Brien was acting in his role as a physician's assistant employed by Correct Care at the time the statement was made. We also find that Smart's allegations involve a medical judgment not within the scope of knowledge of a layperson. That is, a layperson would not be able to determine when O'Brien deviated from an acceptable professional standard when he made the disclosure. Thus, because Smart's claim is in the nature of a medical malpractice claim, expert testimony was, in fact, required in his case, and proper certificates of merit needed to be filed.
Here, Bracey has filed documents reflecting that the testing at issue was prescribed by a treating physician employed by the Department of Corrections, and that a treatment plan was developed for Bracey's care based on the diagnosis set forth in each provider's test results. ECF No. 79-1 at 2 ("A doctor's order was obtained and the blood that was drawn to be tested for HIV was tested for Hepatitis."); ECF No. 79-1 at 3 ("A review of the records ... reflects that the medical care provided was reasonable and appropriate under advisement of the Legal Department. Clinical decisions are made by the attending practitioner. You are encouraged to participate in your treatment plan and to discuss your concerns or changes of condition with your practitioner."). That the challenged test reports stem from a treating physician's referral to a sub-specialist does not change the nature of the qualifying patient relationship, for each of the Medical Defendants has provided diagnostic medical care to Bracey within the meaning of Rule 1042.3. Accordingly, Certificates of Merit are required.
Because Bracey has failed to file compliant Certificates of Merit despite repeated notice of the requirement to do so, it is recommended that the Court grant the Medical Defendants' Motions to Dismiss professional negligence claims.
3. Third-Party Beneficiary Status
Bracey alternatively posits that he is an intended third-party beneficiary of the various contracts between the Department of Corrections and the Medical Defendants and may therefore pursue his professional negligence claims. ECF No. 129 at 3-4. As an initial matter, and dispensing with an analysis of the differences in duties owed under contract or tort or the necessity of a Certificate of Merit in a professional liability claim arising in contract, Bracey again fails to plead facts plausibly stating a breach of contract cause of action, the terms of the contract, or the parties to the contract. This alone affords a basis for dismissal. See Report and Recommendation, ECF No. 102 (citing Zimmerman, 836 F.2d at 181).
It is not at all clear, as alleged by Bracey in the second Amended Complaint, whether the Medical Defendants "are outside contractors of the Department," ECF No. 107 ¶ 47 (italics supplied), or whether clinical testing services were supplied under a subcontract between the Medical Defendants and an unnamed party.
Bracey also fails to plead facts showing that the signatories of any contract for clinical testing services intended that he step into the shoes of a party to enforce rights thereunder.
As a general rule, under Pennsylvania law, a non-party to a contract is a third-party beneficiary only where both contracting parties have expressed an intention to benefit the party in the contract itself. Brown v. Wexford Health Sources, Inc., 2018 WL 3156856, *13 (W.D. Pa. June 28, 2018) (citing Scarpitti v. Weborg, 530 Pa. 366, 609 A.2d 147, 149 (Pa. 1992); Spires v Hanover Fire Ins. Co., 364 Pa. 52, 70
A.2d 828 (Pa. 1950)). Pennsylvania has recognized a limited exception to this general rule where the circumstances are so compelling that recognition of the beneficiary's right is appropriate to effectuate the intention of the parties, and the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). This exception "leaves discretion with the trial court to determine if recognition of the third-party beneficiary status would be 'appropriate'." Guy, 459 A.2d at 751. When applying this exception, Pennsylvania courts require that the circumstances surrounding the contract be "compelling" before finding that recognizing a third-party beneficiary is appropriate to effectuate the intention of the parties. Scarpitti, 609 A.2d at 150-51 (citation and quotations omitted). There must be a showing that the alleged beneficiary falls within one of two categories of intended beneficiary—creditor or donee beneficiaries. Id.Brown v. Wetzel, No. 1:18-CV-00086, 2019 WL 1331619, at *4-5 (W.D. Pa. Mar. 25, 2019). Upon review of the inmate plaintiff's complaint, the district court in Brown dismissed third-party beneficiary claims because the plaintiff failed to allege facts sufficient to show that the providers intended to extend rights to him under the contract at issue. Moreover, the Court noted, "[i]f Brown is an intended third-party beneficiary of the contract between the DOC and Correct Care, it would appear that all inmates within the custody of the DOC would be entitled to claim that same status. It is far from clear, however, that Pennsylvania law contemplates granting third-party beneficiary standing to such a large class of individuals. See Guy, 459 A.2d at 747 (noting that "the grant of standing to a narrow class of third party beneficiaries seems 'appropriate' under RESTATEMENT (SECOND) OF CONTRACTS § 302 where the intent to benefit is clear and the promisee ... is unable to enforce the contracts')." Id., at *5 n.8 (emphasis in original).
At least one Pennsylvania court and federal courts within this Circuit and elsewhere have uniformly found this exception inapplicable in cases where a prison inmate has claimed to be a third-party beneficiary of a contract between a department of corrections and a medical provider. See, e.g., Ziegler v. Correct Care Systems, 2018 WL 1470786 at *4 (M.D. Pa. March 26, 2018); Battle v. Prison Health Servs., 120 A.3d 391 (Pa. Super. 2015); Flournoy v. Ghosh, 2010 WL 1710807 (N.D. Ill. April 27, 2010); Ali v. DOC, 2008 WL 5111274, at *5 (D.N.J. Nov. 25, 2008). The court in each of these cases found the facts alleged were insufficient to support third-party beneficiary status.
Bracey's claim suffers the same deficiencies present in Brown and despite the leniency afforded at the early stages of litigation because of his pro se status, Bracey has not alleged facts on which his putative third-party beneficiary status may be implied under any potential contract executed by the Medical Defendants. Accordingly, it is recommended that the Court dismiss his third-party breach of contract claim.
Given the recommended disposition of this matter, the Court need not reach the parties' alternative Motions for Summary Judgment.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motions to Dismiss filed on behalf of Garcia Clinical Laboratory and Lorenz P. Kielhorn ECF No. 112; McClaren Medical Laboratory and Dennis W. Spender, ECF No. 115, William G. Finn and Warde Medical Laboratory, ECF No. 118 be granted and that the Second Amended Complaint be dismissed as to all claims asserted against each moving defendant.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted,
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Dated: March 5, 2021 cc: The Honorable William S. Stickman, IV
United States District Judge
All counsel of record by Notice of Electronic Filing
Corey Bracey
GS 4754
SCI Phoenix
1200 Mokychic Road
Collegeville, Pa 19426