Opinion
Civil Action 4:21-CV-1645
06-21-2022
MOLLY M. SCHWARTZ, Individually and as Administrator of the Estate of David E. DeWald II Plaintiff v. LACKAWANNA COUNTY, et al., Defendants
WILSON, D.J.
REPORT & RECOMMENDATION MEDICAL DEFENDANTS' MOTION TO DISMISS, DOC. 22
William I. Arbuckle U.S. Magistrate Judge.
I. INTRODUCTION
According to the complaint, county prisoner David E. DeWald II, died due to injuries sustained during the use of force by five unidentified county corrections officers. His daughter, Molly M. Schwartz (“Plaintiff”) has initiated this case asserting both state and federal claims against several municipal entities, prison employees, a medical company contracted to provide services at the prison, and the medical company's employees. Currently pending before the Court is a Motion to Dismiss (Doc. 22) filed by the Medical Defendants.
After reviewing the Complaint (Doc. 1), the Medical Defendants' motion (Doc. 22), and the parties' briefs (Docs. 23, 29) it is RECOMMENDED that the Medical Defendants' motion to dismiss (Doc. 22) be DENIED.
II. BACKGROUND & PROCEDURAL HISTORY
From 2017 to March 24, 2020, Mr. DeWald was incarcerated at Lackawanna County Prison. (Doc. 1, ¶ 29). On May 16, 2018, when Mr. DeWald was forty-two years old, he was found to be in good general health. (Doc. 1, ¶ 30).
On March 24, 2020, John Does I-V were called to Mr. DeWald's jail cell to move Mr. DeWald to “observation.” (Doc. 1, ¶ 31). Mr. DeWald refused to move. Id. After repeated attempts to move Mr. DeWald, John Does I-V deployed a chemical into Mr. DeWald's cell. (Doc. 1, ¶ 32). John Does I-V then entered the cell, attempted to restrain Mr. DeWald, and tasered him repeatedly. (Doc. 1, ¶ 33). Plaintiff alleges that, during this attempt to restrain Mr. DeWald, John Does I-V severely and violently beat Mr. DeWald. (Doc. 1, ¶ 36).
Mr. DeWald was placed in a restraint chair with all four limbs restrained, and was dragged into the hallway. (Doc. 1, ¶ 35). While he was dragged out of his cell, or shortly thereafter, Mr. DeWald became unresponsive. (Doc. 1, ¶ 37). Plaintiff alleges that Mr. DeWald could not hold his head up independently, and that Mr. DeWald's face was covered in blood. Id.
John Does I-V transported Mr. DeWald to the treatment area in a restraint chair. (Doc. 1, ¶ 38). One of the John Does began to question whether Mr. DeWald was breathing. (Doc. 1, ¶ 39). One of the John Does called for a nurse. Id.
A nurse (either John Doe VI or VII) attempted to rouse Mr. DeWald verbally, without success. (Doc. 1, ¶ 40). The same nurse then asked John Does IV for a flashlight, and to retrieve a pulse ox from her bag. (Doc. 1, ¶¶ 41-42). The nurse then began to clean Mr. DeWald's wounds without checking Mr. DeWald's vital signs. (Doc. 1, ¶ 44).
Shortly thereafter, a second nurse entered the treatment area and attempted sternal stimulation and tried to take Mr. DeWald's blood pressure. (Doc. 1, ¶ 45). Sternal stimulation was unsuccessful. Id. One of the nurses placed a second pulse oximeter on Mr. DeWald and administered oxygen using a mask. (Doc. 1, ¶ 46). The second pulse oximeter emitted an alarm sound. (Doc. 1, ¶ 47). Plaintiff alleges that the alarm signaled that Mr. DeWald had no pulse or oxygen level. Id. No nurse or corrections officer attempted to administer CPR. (Doc. 1, ¶ 52). No nurse provided a report to EMS about any nursing intervention provided to Mr. DeWald. (Doc. 1, ¶ 51). The nurses' efforts were not documented in Mr. DeWald's medical records. Id.
EMS arrived at the scene, and Mr. DeWald was transported to Geisinger Wyoming Valley Hospital. (Doc. 1, ¶ 48). When he arrived at the hospital, Mr. DeWald was in sustained cardiac arrest with CPR being performed. (Doc. 1, ¶ 49). At 10:45 p.m., Mr. DeWald was pronounced dead. (Doc. 1, ¶ 50).
An autopsy was performed. (Doc. 1, ¶ 53). That autopsy revealed:
(1) multiple abrasions and lacerations of the head, extremities and torso; (2) abrasion of both wrists and ankles consistent with decedent struggling against restraints; (3) abrasions of vertex of scalp and hematoma of forehead consistent with blunt impact; (5) abrasions of flanks consistent with taser induced lesions; (6) fractures of the 4th and 5th ribs; and (7) no intracerebral hemorrhage, tumor, or infarction.(Doc. 1, ¶ 53). The autopsy listed “cardiac dysrhythmia secondary to physically struggling in hyperexcitable state” as the cause of death. Id.
On September 24, 2021, Mr. DeWald's daughter, Molly M. Schwartz (“Plaintiff”), initiated this civil action individually and as the administrator of her father's estate. (Doc. 1). In her complaint, Plaintiff named the following Defendants:
(1) Lackawanna County;
(2) Lackawanna County Prison Board;
(3) Lackawanna County Board of Commissioners;
(4) Correctional Care, Inc., a company contracted by Lackawanna County, Lackawanna County Prison Board, and Lackawanna County Board of Commissioners to provide medical treatment to inmates at Lackawanna County Prison;
(5) Edward J. Zaloga, D.O., physician and president and chief medical officer of Correctional Care, Inc.;
(6) John Doe I, corrections officer at Lackawanna County Prison;
(7) John Doe II, corrections officer at Lackawanna County Prison;
(8) John Doe III, corrections officer at Lackawanna County Prison;
(9) John Doe IV, corrections officer at Lackawanna County Prison;
(10) John Doe V, corrections officer at Lackawanna County Prison;
(11) John Doe VI, nurse employed by Correctional Care, Inc.; and
(12) John Doe VII, nurse employed by Correctional Care, Inc.
Plaintiff asserts the following legal claims against Defendants Correctional Care, Inc., and Edward Zaloga (hereinafter the “Medical Defendants”):
In the complaint, two claims were numbered Count VII. Throughout this Report, the numbers used refer to the sequential order in which the counts appear in the complaint.
(1) Count VII: Negligence (against Defendant Correctional Care only);
(2) Count VII: Negligence (against Defendant Zaloga only);
(3) Count IX: Wrongful Death; and
(4) Count X: Survival Action.
As relief, Plaintiff requests:
monetary damages and reasonable attorneys fees and costs under Section 1983 and Pennsylvania law including the following:
1. Assume jurisdiction over this action;
2. Order appropriate monetary relief, and declare the Defendants to be in violation of Section 1983 and Pennsylvania law;
3. Order the Defendants to compensate Plaintiff for her reasonable attorneys fees and related costs;
4. Award compensatory damages to Plaintiff for Mr. DeWald's pain and suffering, death and past medical bills incurred as well as punitive damages;
5. Order a change in the policy, practice and customs regarding the Prison described herein; and
6. Grant such other relief as this Court deems proper.(Doc. 1, p. 25).
On December 7, 2021, the Medical Defendants filed a motion to dismiss. (Doc. 22). Along with their motion. the Medical Defendants filed a brief in support. (Doc. 23). On January 10, 2022, Plaintiff filed a brief in opposition. (Doc. 29). The Medical Defendants did not file a reply. This motion has been fully briefed by the parties and is ready to decide.
III. LEGAL STANDARDS
A. 12(B)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss, the court “must accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to the plaintiff, and ultimately determine whether Plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In review of a motion to dismiss, a court must “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothchild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. The court, however, “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to “assume that the [plaintiff] can prove facts that [he] has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where they are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief” and instead must “‘show' such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, “stops short of the line between possibility and plausibility of ‘entitlement of relief.'” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
B. 12(F) MOTION TO STRIKE
Under Rule 12(f) of the Federal Rules of Civil Procedure, “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, or scandalous matter.” Rule 12(f) “is designed to reinforce the requirement in Rule 8 . . . that pleadings be simple, concise, and direct.' “ Miller v. State Farm Mut. Auto Ins. Co., No. 1:20-CV-00367, 2020 WL 3265345, at *2 (M.D. Pa. June 17, 2020) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (3d ed. 2020 update)). “To that end, the purpose of any motion to strike should be to ‘clean up the pleadings, streamline litigation, and avoid the unnecessary forays into immaterial matters.' “ Id. (quoting United States v. Educ. Mgmt. Corp., 871 F.Supp.2d 433, 460 (W.D. Pa. 2012) (citation omitted)).
IV. ANALYSIS
A. PLAINTIFF'S NEGLIGENCE CLAIM AGAINST DEFENDANT ZALOGA
Plaintiff alleges that:
15. Defendant, Correctional Care, Inc. is believed to be a Pennsylvania corporation organized and incorporated in the Commonwealth of Pennsylvania with a principal place of business located at 4101 Birney Avenue, Moosic, Pennsylvania 18507. Plaintiff is asserting a professional liability claim against this Defendant.
16. At all pertinent times, Defendant Correctional Care, Inc. was contracted by County Defendants to provide medical treatment to inmates at the Prison.
17. Defendant, Edward Zaloga, M.D. (“Dr. Zaloga”), was at all times relevant hereto a licensed healthcare professional in the Commonwealth of Pennsylvania, practicing in the field of nephrology with an office located at 4101 Birney Avenue, Moosic, Pennsylvania 18507. Plaintiff is asserting a professional liability claim against this Defendant.
18. At all times pertinent hereto, Dr. Zaloga was the President and Chief Medical officer of Correctional Care, Inc.
....
24. Individual Defendant, John Doe VI, is believed to be an agent and/or employee of Defendant Correctional Care, Inc. whose identity is not yet known after having conducted a reasonable search with due diligence to determine the actual name, but whose designation is averred to be fictitious. Individual Defendant John Doe VI is believed to be a nurse employed by either County Defendants, acting under Color of Pennsylvania Law and involved in the conduct herein described against Plaintiff and Mr. Dewald and is sued in his/her individual and official capacities or as an employee of Defendant Correctional Care, Inc.
25. Individual Defendant, John Doe VII, is believed to be an agent and/or employee of Defendant Correctional Care, Inc. whose identity is not yet known after having conducted a reasonable search with due diligence to determine the actual name, but whose designation is averred to be fictitious. Individual Defendant John Doe VII is believed to be a nurse employed by either County Defendants, acting under Color of Pennsylvania Law and involved in the conduct herein described against Plaintiff and Mr. Dewald and is sued in his/her individual and official capacities or as an employee of Defendant Correctional Care, Inc. ....
58. Employees of Defendant Correctional Care, Inc., . . ., by and through their respective agents, servants and/or employees, failed to properly administer CPR and life-saving medical procedures to render aid to Mr. DeWald in his final moments.
59. Upon information and belief, Defendant Correctional Care, Inc., . . ., by and through their respective agents, servants and/or employees, failed to properly train their medical staff on how to timely respond to emergencies.
60. Upon information and belief, Defendant Correctional Care, Inc., . . ., by and through their respective agents, servants and/or employees, failed to properly train their medical staff on how to
handle a medical emergency when correctional officers are involved.(Doc. 1, ¶¶ 15-18, 24-25, 58-60).
In the eighth count of the complaint, Plaintiff alleges:
COUNT VII (Negligence)
Plaintiff v. Edward J. Zaloga, D.O., Individually and as President and Chief Medical Officer of Correctional Care, Inc.
....
97. The negligence and/or recklessness of the Defendant, Edward J. Zaloga, D.O., either individually and/or jointly, by and through his agents, servants, and/or employees consisted of the following:
a. Failure to properly supervise subordinates;
b. Failure to comply with federal and state statutes, laws, regulations, policies, practices and customs;
c. Failure to properly monitor Mr. DeWald's vital signs;
d. In improperly monitoring Mr. DeWald's vital signs;
e. Failing to provide appropriate standard of care which requires the nursing staff at the Prison to act immediately and appropriately in the event of a medical emergency;
f. Failing to provide proper emergency care for a patient with a suspected head injury;
g. Violating the policies, procedures, protocols, guidelines, bylaws and/or standards of the Prison maintained and operated by the County Defendants;
h. In failing to monitor Mr. DeWald's oxygen saturations;
i. Failing to properly respond to Mr. DeWald's respiratory arrest;
j. Failing to respond to Mr. DeWald's emergency situation in a timely fashion;
k. Failing to commence immediate resuscitative measures when the Defendant knew, or should have known, that Mr. DeWald was in respiratory arrest;
l. Failing to commence immediate resuscitative measures when the Defendant knew, or should have known, that Mr. DeWald was in an emergency situation;
m. Failing to recognize that Mr. DeWald's condition was deteriorating;
n. Failing to properly staff the nursing care for the Prison and/or Correctional Care, Inc.
o. Failing to adopt policies, procedures and/or policy and/or procedure manuals;
p. Failing to properly train his employees;
q. Failing to provide proper quality assurance methods and/or checks;
r. Failing to provide in-house seminars and/or other training to his staff;
s. Failing to conduct periodic review of his staff;
t. Failing to conduct adequate reviews of his staff;
u. Failure to obtain the proper certifications for providing health care and/or health services to jails including, but not limited to, the National Commissioner on Correctional Health Care Certification;
v. Failing to abide by, follow and/or comply with the standards, regulations and guidelines issues by the National Commission on Correctional Health Care Certification and other authorities;
w. Failing to comply with the requirements of the contract had with the Co-Defendants, Lackawanna County, Including but not limited to, failing to obtain National Commissioner on Correctional Health Care Certification;
x. In failing to have or establish proper and/or any policies, procedures, protocols, or guidelines for the care of inmates in the situation such as Mr. DeWald; and
y. In failing to exercise reasonable care under all of the existing circumstances.
98. The negligence, carelessness and/or recklessness of the Defendant, both individually and as President and Chief Medical Officer of Correctional Care, Inc., by and through his agents and/or employees, as outlined above, was a proximate cause of the injuries sustained by Mr. DeWald as outlined herein.
99. As a result of the negligence, carelessness and/or recklessness of the Defendant, both individually and as President and Chief Medical Officer of Correctional Care, Inc., by and through his agents and/or employees, as described herein, Mr. DeWald suffered severe, debilitating and permanent injuries which include, but are not limited to the following: multiple abrasions and lacerations of the head, extremities and torso; abrasion of both wrists and ankles; abrasions of vertex of scalp and hematoma of forehead consistent with blunt impact; abrasions of flanks consistent with taxer induced lesions; factures of the 4th and 5th ribs, death and conscious pain and suffering.
100. The actions and inactions of each and all of the Defendants herein, as set forth in the proceeding paragraphs of this Complaint, amounted to deliberate indifference to the rights of Mr. DeWald, a conscious indifference to the consequences of their actions and outrageous and grossly indifferent conduct.(Doc. 1, ¶¶ 97-100).
The Medical Defendants argue that Plaintiff has not pleaded enough facts to support a medical malpractice claim against Defendant Zaloga. Specifically, the Medical Defendants argue:
Here, Plaintiff has not alleged facts which support a claim against Dr. Zaloga as an individual. Nowhere in the Complaint is it alleged that Dr. Zaloga actually provided any direct care to Decedent. Rather, the Complaint alleges that two nurses, employed by Correctional Care, Inc., attempted to provide medical care to Decedent. See (Doc. 1 ¶¶ 39-46). The only other medical personnel to arrive to assist Decedent were EMS providers who transported Decedent to Geisinger Wyoming Valley Hospital. Id. ¶ 48. According to Plaintiff's Complaint, Dr. Zaloga had no direct involvement during the incident at issue. In fact, nowhere in the Complaint does it even allege that Dr. Zaloga was present at LCP on the day of Decedent's death.
Further, although Plaintiff suggests that Dr. Zaloga had a duty to individually train staff, conduct periodic reviews of staff, and adopt proper policies and procedures, among other duties which Plaintiff list, Plaintiff has not alleged any actual facts to support that Dr. Zaloga breached those duties individually. See id. ¶ 97. Rather, Plaintiff states that “upon information and belief” it was Correctional Care Inc., and the LCP that did not properly administer CPR and did not properly train staff. See id. ¶¶ 58-60. Again, there is no mention of Dr. Zaloga individually breaching his duties.
Plaintiff's claim against Dr. Zaloga as an individual is nothing more than bald assertions and legal conclusions and contain no facts to support Plaintiff's claims. While notice pleading is a more liberal standard, it still requires pleading “at least those facts necessary to raise an inference that Plaintiff has a claim.” Morris v. Phila. Hous. Auth., 2011 U.S. Dist. LEXIS 46465, at *8 (E.D. Pa. Apr. 28, 2011) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). Plaintiff has failed to do so and thus the individual claim for negligence against Dr. Zaloga should be dismissed.(Doc. 29, pp. 8-9).
In response, Plaintiff argues that she has alleged that Dr. Zaloga owed a duty to Mr. DeWald, and breached that duty by failing to properly train and supervise his subordinates. Specifically, Plaintiff argues:
Medical Defendants argue that Plaintiff has failed to state a claim against Dr. Zaloga individually because the allegations of the Complaint fail to include any language that Dr. Zaloga was personally involved at the incident. As such, Medical Defendants seek to dismiss all claims against Dr. Zaloga, individually. Plaintiff disagrees. Rather, Plaintiff's Complaint, read as a whole, clearly alleges that Dr. Zaloga had duties and responsibilities owed to individuals like Mr. DeWald and therefore he should be permitted to remain liable in the Complaint in his individual capacity.
Specifically, Plaintiff alleges in her Complaint that Dr. Zaloga failed to properly supervise subordinates, failed to comply with federal and state statutes, laws, regulations, policies, practices and customs, failing to properly train his staff, failing to properly train his employees, failing to adopt policies, procedures and/or policy and/or procedure manuals, failing to conduct periodic reviews of his staff, failing to conduct adequate reviews of his staff, failing to obtain the proper certifications for providing health care and/or health services to jails including, but not limited to, the National Commission on Correctional Health Care Certification and other authorities, and failing to have or establish proper and/or any policies, procedures, protocols, or guidelines for the care of inmates in the situation such as Mr. DeWald. (See Doc. 1 at ¶ 100(a)-(x)). These allegations, along with the Complaint taken as a whole, impugn Dr. Zaloga as individually liable for Mr. DeWald's untimely death. As such, Plaintiff respectfully requests that this Honorable Court deny and dismiss Medical Defendant's Motion to Dismiss.
If this Honorable Court has an inclination to agree with Medical Defendants in their assertion that claims against Dr. Zaloga individually must be dismissed, Plaintiff would respectfully request an opportunity to amend her Complaint to add additional factual
allegations as the statute of limitations has not yet run and will not run until March 24, 2022.(Doc. 29, pp. 7-8).
“Under Pennsylvania law, there are four elements to a prima facie case of medical malpractice: ‘(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.'” Green v. Fisher, 2014 WL 65763 at *12 (M.D. Pa. Jan. 8, 2014) (quoting Hoffman v. Brandywine Hosp., 661 A.2d 397, 399 (Pa. Super. Ct. 1995)). “Further, 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.” Green, 2014 WL 65763 at *12 (citing McCabe v. Prison Health Servs., 117 F.Supp.2d 443, 456 (E.D. Pa. 1997) and Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990)).
I agree with the Medical Defendants that Plaintiff has not alleged that Defendant Zaloga provided any direct care to Mr. DeWald. However, the Medical Defendants concede that Plaintiff “suggests that Dr. Zaloga had a duty to individually train staff, conduct periodic reviews of staff, and adopted proper policies and procedures.” (Doc. 23, p. 7). Thus, I find that Plaintiff has pleaded enough facts at this stage of the proceedings to show there was a duty.
Medical malpractice is defined 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.” Doe v. Hospital of Univ. of Pennsylvania, 546 F.Supp.3d 336, 344 (E.D. Pa. 2021) (quoting Grossman v. Barke, 868 A.2d 561, 568-70 (Pa. Super. Ct. 2005). Plaintiff alleges, among other things, that Defendant Zaloga failed to properly supervise his subordinates (i.e., the nurses), failed to train his employees, failed to conduct periodic review of his staff and failed to adopt proper policies and procedures. (Doc. 1, ¶ 97). In this case, Plaintiff alleges that the employees Defendant Zaloga had a duty to train, and failed to supervise or review, failed to take Mr. DeWald's vital signs after a corrections officer reported that Mr. DeWald was not breathing (Doc. 1, ¶¶ 39-40, 44), did not have the proper tools to evaluate Mr. DeWald's head injury (Doc. 1, ¶ 41), did not provide a report to EMS when it arrived (Doc. 1, ¶ 51), and did not attempt to administer CPR to Mr. DeWald when he was not breathing (Doc. 1, ¶ 52). Construing these allegations in the light most favorable to Plaintiff, it can reasonably be inferred that these failures could have been the result of inadequate training or supervision.
Thus, I find that Plaintiff has alleged enough, at this stage, for the medical malpractice claim against Defendant Zaloga to proceed.
B. WHETHER PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES AGAINST DR. ZALOGA, CORRECTIONAL CARE INC., AND JOHN DOES VI AND VII SHOULD BE DISMISSED
Pennsylvania's Medical Care Availability and Reduction of Error (“MCARE”) Act governs Plaintiff's negligence claims against the Medical Defendants. 40 P.S. § 1303.101 et seq. On the issue of the availability of punitive damages, MCARE provides that:
(a) Award.-Punitive damages may be awarded for conduct that is the result of the health care provider's willful or wanton conduct or reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the health provider's act, the nature and extent of the harm to the patient that the health care provider caused or intended to cause and the wealth of the health care provider.
“A showing of gross negligence is insufficient to support an award of punitive damages. 40 P.S. § 1303.505(b). To that end, “a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Stroud v. Abington Memorial Hosp., 546 F.Supp.2d 238 (E.D. Pa. 2008) (quoting Hutchinson ex. rel. Hutchinson v. Luddy, 870 A.2d 766, 771-72 (Pa. 2005)).
However, with respect to the award of punitive damages for vicarious liability claims, MCARE provides that “[p]unitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agency that resulted in the award of punitive damages.” 40 P.S. § 1303.505(c) (emphasis added).
The Medical Defendants argue that Plaintiff's request for punitive damages from Defendant Zaloga and Correctional Care, Inc. should be dismissed because Plaintiff has not pleaded enough facts to establish that John Doe VI and VII engaged in “willful or wanton conduct or reckless indifference to the rights of others.” Specifically, Medical Defendants argue:
Because there are no allegations of personal involvement on the part of Dr. Zaloga, and claims against CCI and Dr. Zaloga are based on alleged vicarious liability for the alleged conduct of unidentified nurses, Plaintiff has failed to properly assert a claim for punitive damages against Dr. Zaloga or CCI under the MCARE Act. Plaintiff cannot meet the factual burden to demonstrate that Medical Defendants, through their employees, acted with “deliberate indifference” in their care of Decedent. Therefore, Plaintiff's claims for punitive damages against Medical Defendants should be dismissed.
In addition, the factual allegations of the Complaint fail to even justify punitive damages as to the 2 unidentified nurses who responded to the medical code. Rather, the factual allegations suggests that these unidentified individuals failed to provide proper medical resuscitation, a far cry from the type of “outrageous” conduct necessary to justify an award for punitive damages.(Doc. 23, p. 10).
Plaintiff does not respond to the Medical Defendants' argument that Plaintiff has not alleged facts that show John Doe VI and VII engaged in conduct that amounted to “willful or wanton conduct or reckless indifference to the rights of others.” Instead, Plaintiff suggests that the conduct of Defendant Zaloga and Correctional Care, Inc. themselves engaged in “willful or wanton conduct or reckless indifference to the rights of others.” Plaintiff argues:
Medical Defendants argues that Plaintiff's claims for punitive damages against the Medical Defendants are barred by the MCARE act because “there are no allegations of personal involvement on the part of Dr. Zaloga, and claimant against [Correctional Care] and Dr. Zaloga are based on alleged vicarious liability for the alleged conduct of unidentified nurses.” (See Doc. 23). Plaintiff disagrees. Specifically, Plaintiff alleges that both Correctional Care and Dr. Zaloga failed to abide by, follow, comply and/or obtain the proper certifications for providing health care and/or health services to jails including, but not limited to, the National Commission on Correctional Health Care Certification. (See Doc. 1 at ¶¶ 92(u)-92(w)); 100(u)-100(w)).
Because the action against the Medical Defendants is based on supplemental jurisdiction under 28 U.S.C. Section 1367(a), the alleged events underlying Plaintiff's claims occurred in Pennsylvania, and this Honorable Court sits in Pennsylvania, the Court should apply the substantive law of the Commonwealth of Pennsylvania. See Hunt v. U.S. Tobacco Co., 538 F.3d 217, 220 (3d Cir. 2008).
Pennsylvania “case law makes it clear that punitive damages are an ‘extreme remedy' available only in the most exceptional matter.” Phillips v. Cricket Lighters, 883 A.2d 439, 445 (2005); Wagner v. Onofrey, 2006 WL 3704801 at *3 (Pa. Com. Pl. 2006). The nature of punitive damages is to “heap an additional punishment on a defendant who is found to have acted in a fashion which is particularly
egregious.” Phillips, 883 A.2d at 446. When examining the appropriateness of punitive damages, “the state of mind of the actor is vital” and “[t]he act, of the failure to act, must be intentional, reckless, or malicious.” Hutchinson v. Luddy, 870 A.2d 766, 771 (2005); Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909, 929 (Pa. Super. 2011). “[A] punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2)[s]he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchinson, 870 A.2d at 772.
Under Pennsylvania law, a Plaintiff may seek to amend a negligence complaint to include a claim for punitive damages at any time within the two-year statute of limitations. See Romah v. Hygienic Sanitation Co., 705 A.2d 842, 858-860 & n. 9 (Pa. Super. 1997); Willet v. Evergreen Homes, Inc., 595 A.2d 164, 68-169 (1991); and Fasula v. Hijazi, 44 D&C4th 553, 561 (Pa. Com. Pl. 1999). However, “[i]f a timely filed complaint contains allegations of deliberate and willful conduct, albeit without affirmatively demanding punitive damages, the plaintiff may thereafter amend the complaint to include a claim for punitive damages based upon the facts previously alleged in the complaint” even after the statute of limitations has run. Millan v. Pennsylvania American Water Co., 25 Pa. D.&C.5th 181, 183 (Pa. Com. Pl. 2012) (citing Shanks v. Alderson, 582 A.2d 883, 886 (1990)). “If the original complaint simply alleges negligence and the plaintiff later seeks to amend the complaint to aver reckless indifference and include a demand for punitive damages after the statute of limitations has expires, the requested amendment is time barred.” Millan, Pa. D&C.5th 183.
In Tayar v. Camelback Ski Corporation, Inc., the Supreme Court of Pennsylvania analyzed the similarities and differences between negligence and recklessness. Tayar v. Camelback Ski Corp, Inc., 616 Pa. 385, 402-03, 47 A.3d 1190, 1200 (2012). The Court noted that while the concepts of negligence and recklessness are clearly distinguishable in the amount of risk they involve and the state of mind required to prove each of them, they lie on the same continuum, with negligence on one side of the spectrum and recklessness on the other. Tayar, 47 A.3d at 1200. The Court elaborated that the “difference between reckless misconduct and conduct involving only
such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk. . .” Id. at 1201
Plaintiff's Complaint, read as a whole, clearly indicates that Correctional Care, Inc. and Dr. Zaloga, individually, had a responsibility to supervise and train its subordinates and to adopt, follow and comply with certain standards, regulations and guidelines when it comes to the medical treatment of individuals like Mr. De Wald. (See Doc. 1 at ¶¶ 92-100). Plaintiff argues that Correctional Care, Inc. and Dr. Zaloga, individually, breached those duties by failing to properly supervise and train its subordinates and failing to adopt, follow and comply with certain standards, regulations and guidelines when it comes to the medical treatment of individuals like Mr. DeWald. Those failures were done recklessly and/or with deliberate indifference to individuals like Mr. DeWald. Essentially, Plaintiff argues that she is not simply alleging that Correctional Care, Inc. and Dr. Zaloga, individually, were vicariously liable for the actions of the two (2) identified nurses. Rather, Plaintiff argues that both Correctional Care, Inc. and Dr. Zaloga had duties and responsibilities owed to Plaintiff that they, with reckless indifference and/or deliberate indifference, breached by failing to uphold to protect individuals such as Mr. DeWald.
Plaintiff's Complaint read as a whole, clearly impugns both Correctional Care, Inc. as well as Dr. Zaloga with more than just “vicarious liability.” Rather, each had its/his own duties owed to Plaintiff which were breached. As such, claims for punitive damages against both Correctional Care, Inc. as well as Dr. Zaloga individually should not be dismissed.
If this Honorable Court has an inclination to agree with Defendants and dismiss the claim for Punitive Damages, Plaintiff respectfully requests that it do so without prejudice so as to preserve the statute of limitations and, should further discovery reveal evidence supporting reckless and/or wanton conduct on behalf of any Defendant, allow Plaintiff to Petition this Honorable Court to Amend her Complaint to include said allegations.(Doc. 23, pp. 8-12).
Medical Defendants did not file a reply, and did not respond to Plaintiff's argument that their punitive damages claims against Defendants Zaloga and Correctional Care Inc. were based on these Defendants' own conduct as well as on a theory of vicarious liability.
In this case, the Medical Defendants argue that the requests for punitive damages should be dismissed, not because punitive damages are unavailable as a matter of law, but because Plaintiff has not alleged facts that suggest “outrageous” conduct because of a defendant's evil motive or his or her reckless indifference to the rights of others. “The language in Section 505(a) and (b) of the MCARE Act ‘tracks the test for punitive damages discussed in the case law' governing punitive damages in civil actions.'” Hughes v. Wilkes Barre Hospital Company, No. 16-CV-6463, 2017 WL 11657232 at *15 (Lacka. Co. C.C.P. Aug. 14, 2017) (quoting Scampone v. Grane Healthcare Co., 11 A.3d 967, 992 (Pa. Super, 2010)).
I find that dismissal of Plaintiff's request for punitive damages as to the Medical Defendants is premature at this time. Plaintiff has alleged that the Medical Defendants acted in a “reckless,” “outrageous,” and “grossly indifferent” manner. (Doc. 1, ¶¶ 92-95, 97-100). Therefore, discovery is necessary to determine whether the Medical Defendants' actions were merely negligent, or were outrageous. See Cobb v. Nye, No. 4:14-CV-865, 2014 WL 7067578 at *3-4 (M.D. Pa. Dec. 12, 2014) (finding dismissal of punitive damages claims premature at the motion to dismiss stage where Plaintiff pleaded that Defendants acted in a gross, wanton and reckless manner).
C. REQUEST TO STRIKE THE WORDS “DELIBERATE INDIFFERENCE” FROM THE COMPLAINT
In this case, the phrase, “deliberate indifference” appears in the complaint four times. (Doc. 1, ¶¶ 75, 90, 94, 99). The phrase is only used twice in relation to the Medical Defendants-once in each negligence count involving the Medical Defendants.
The Medical Defendants argue that this phrase should be struck from all counts involving the Medical Defendants. Specifically, the Medical Defendants argue:
Because Plaintiff has not plead constitutional claims against the Medical Defendants, and the facts alleged fail to warrant such claims, allegations of “deliberate indifference” should be stricken from the Complaint.
To the extent that Plaintiff's allegations of “deliberate indifference” against Medical Defendants could be construed as claims for violations of Decedent's Constitutional rights, such claims are not warranted under the law.
Un order to evaluate constitutional claims in the context of medical care, the relevant inquiry is whether defendants were: (1) deliberately indifferent (the subjective element) to (2) plaintiff's serious medical needs (the objective element). Monmouth County Correctional Institution Inmates vs. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979). Because only flagrantly egregious acts or omissions can violate this standard, mere medical malpractice can not result in an Eighth Amendment violation, nor can disagreements over a prison physician's medical judgment.
White vs. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990). Furthermore, a complaint that a physician or a medical department “has been negligent in diagnosing or treating a medical condition does not state a vlaid claim of medical mistreatment under the Eighth Amendment ....” Estelle vs. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). “Allegations of medical malpractice are not sufficient to establish a Constitutional violation.” Spruill vs. Gillis, 372 F.3d 218, 235. “[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.” Brown vs. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice do not give rise to a § 1982 cause of action, and in inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. See Durmer vs. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
The factual allegations of the Complaint suggest that 2 unidentified nurses (John Doe VI and John Doe VII) employed by CCI failed to properly resuscitate the Decedent during a relatively brief period of time. See Doc. 1. However, the Complaint clearly identifies conduct on the part of both alleged nurses that demonstrates that each endeavored to provide care to the Decedent and that emergency personnel were contacted and transported Decedent to the hospital.
The alleged employees of CCI, according to the Complaint, immediately responded when called for and began administering aid to the Decedent. In short, the factual allegations of the Complaint flatly contradict the notion that any individual employed by CCI exhibited “deliberate indifference” to the Decedent.
As a result, had Plaintiff asserted an actual claim for violation of his constitutional rights against the Medical Defendants, such a claim would be dismissed based upon the facts alleged.
Since, however, Plaintiff has made no such claim, the inclusion of an allegation that defendants acted with “deliberate indifference” is impertinent and would only serve to confuse the issues, all references in the Complaint to “deliberate indifference” as to all Medical Defendants should be stricken.(Doc. 23, pp. 11-13).
Plaintiff argues:
Medical Defendants are correct in their assertion that Plaintiff has not asserted a constitutional claim against them. Rather, Plaintiff's claim against Medical Defendants sounds in Professional Negligence under Pennsylvania law. Medical Defendants are under the umbrella of the Honorable Court under the supplemental jurisdiction arm pursuant to 28 U.S.C. Section 1367(a). As Medical Defendants aptly point out in their Brief in Support, Courts will permit a claim for punitive damages if a plaintiff can set forth a claimant for “deliberate indifference” as it is essentially the same standard as reckless or callous indifference. Tenon v. Dreibelbis, 190 F.Supp.3d 412, 418 (M.D. pa. 2016). Given that Plaintiff has asserted a claim for punitive damages against both Correctional Care, Inc. as well as Dr. Zalgoa and the fact that “deliberate indifference” is just another way of saying “reckless” or “callous indifference”, the allegations should not be stricken. Frankly, the standard of deliberate indifference should not serve to “confuse the issues” is it impertinent to Plaintiff's cause of action.(Doc. 23, p. 12).
“District courts possess great discretion in disposing of a motion to strike.” Writ v. Bon-Ton Stores, Inc., 134 F.Supp.3d 852, 857 (M.D. Pa. 2015). Motions to strike, however, are generally disfavored, and they should be denied unless the allegations at issue “ ‘ have no possible relation to the controversy and may cause prejudice to one of the parties, or . . . the allegations confuse the issues in the case.' “ Id. (quoting Dann v. Lincoln Nat. Corp., 274 F.R.D. 139, 142 (E.D. Pa. 2011)). The party moving to strike must demonstrate that the matter falls within one of the categories listed in Rule 12(f).” Id. I am not persuaded that the use of the phrase “deliberate indifference” on two occasions in the complaint causes confusion about the nature of the claims alleged in this case.
Accordingly, the Medical Defendants' request to strike the use of the phrase “deliberate indifference” from the complaint in paragraphs 94 and 99 should be denied.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) The Medical Defendants' Motion to Dismiss (Doc. 22) be DENIED.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that 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.