Case No. 3:16-cv-266-KRG-KAP
Report and Recommendation
The remaining claims in this case are plaintiff Charles T. Jones' claims against Dr. Muhammad Naji, the medical director at S.C.I. Houtzdale, for deliberate indifference to plaintiff's serious medical needs and for negligence under state law. The claims stem from plaintiff right bicep injury in 2014. Dr. Naji has filed a motion for summary judgment. ECF no. 90 (Motion); ECF no. 91 (Defendant's statement of Facts); ECF no. 92 (Brief with plaintiff's medical records as Exhibit A). The matter has been briefed. ECF no. 114 (Response); ECF no. 115 (Brief with exhibits); ECF no. 116 (Plaintiff's statement of Facts); ECF no. 117 (Declaration by plaintiff); ECF no. 118 (Exhibits in support of plaintiff's declaration). I recommend the motion for summary judgment be granted.
The operative complaint is the amended complaint at ECF no. 18, with additional exhibits at ECF no. 20, that was included in plaintiff's objections to a previous report and recommendation. In addition to a claim against Naji, the amended complaint contained what I found to be an inadequate attempt to allege a malpractice claim against Shawn Kibe, P.A., and at ECF no. 21 I recommended dismissing the amended complaint without further leave to amend and without prejudice to proceeding in state court on any claim against Kibe because it was separable from the claim against Dr. Naji. Plaintiff filed objections that promised he would send in additional supporting exhibits against the other defendants when he had the funds and asked for another chance to amend the complaint to send in additional information about "yet-to-have-claims filed defendants." See ECF no. 26 ¶¶ 5, 8, 15, 28; ECF no. 27. The plaintiff subsequently did attempt to amend the complaint despite lack of permission to do so, but the additional proposed claims were new ones and the allegations and exhibits were not relevant to the bicep injury. See ECF no. 65. The court adopted my recommendation. ECF no. 72.
The claim against Dr. Naji can be characterized as a pro se attempt to allege both a negligence claim and federal civil rights claim without clearly differentiating between the two. The state law medical negligence claim need not be addressed at length because plaintiff has failed to comply with Rule 1042.3 of the Pennsylvania Rules of Civil Procedure which requires a plaintiff to file a certificate of merit within sixty days after filing a professional negligence complaint. This failure to comply "is fatal" to any claims of professional negligence in federal court, just as it would be in state court. See Crawford v. McMillan, 660 Fed.Appx. 113, 116 (3d Cir. 2016), citing Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011).
As for the federal claim, prison medical care providers violate the Eighth Amendment by "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The taxonomy of deliberate indifference claims recognized in this circuit includes cases where (1) prison authorities deny reasonable requests for medical treatment, (2) knowledge of the need for medical care is accompanied by the intentional refusal to provide it, (3) necessary medical treatment is delayed for non-medical reasons, and (4) prison authorities prevent an inmate from receiving recommended treatment for serious medical needs. Pearson v. Prison Health Service, 850 F.3d 526, 538 (3d Cir.2017). A defendant is deliberately indifferent when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
A party moving for summary judgment bears the initial burden of pointing the district court to the basis in the record for its argument that there is no genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so, Fed.R.Civ.P. 56 then obliges the party opposing summary judgment to show by competent evidence that there is a genuine factual dispute, that is, that sufficient evidence exists so that a reasonable jury applying the relevant law could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where there is a factual dispute, all reasonable inferences must be drawn in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
At issue in this case are defendant's position that conservative therapy for plaintiff's bicep injury was appropriate, opposed to plaintiff's claim that by delaying an outside consultation and immediate surgical repair, Dr. Naji was deliberately indifferent. The medical records are at ECF no. 92-1, Defendant's Brief Exhibit A. Although there is a dispute as to whether plaintiff was "lifting weights" or "lifting a weight," see ECF no. 115 ¶ 19 et seq., it is not in dispute that on December 17, 2014, plaintiff suffered an injury at Houtzdale while lifting a weight. Dr. Naji saw plaintiff within minutes and diagnosed plaintiff as having a rupture of the right bicep. ECF no. 92-1, page 174; ECF no. 91 ¶¶ 26-28; ECF no. 116 ¶¶ 1-3. Dr. Naji noted an obvious deformity to the right bicep muscle when plaintiff flexed his elbow. ECF no. 91 ¶ 27. Dr. Naji requested approval for an orthopedic consult that same day. Id. Dr. Naji noted that plaintiff was already being prescribed Naprosyn for pain relief. ECF no, 91 ¶ 27; ECF no. 116 ¶ 4. That analgesic had been prescribed for plaintiff since a diagnosis of spondylosis in about 1986. ECF no. 115; ECF no. 114 ¶ 100. Within the next week or so plaintiff was writing requests to staff asking when his appointment was. ECF no. 18 Exhibits 2, 3.
On January 7, 2015, plaintiff was transported to University Orthopedics, where he was seen by a physician assistant, Shawn Kibe. ECF no. 91 ¶ 29; ECF no. 116 ¶¶ 6-7. Kibe noted bruising, loss of mobility, joint tenderness, weakness and a "Popeye deformity" of the right biceps. ECF no. 91 ¶ 29. Plaintiff was assessed as a "67 year old male with ruptured long head of biceps tendon right shoulder," and the plan for treatment was "RICE" (rest, ice, compression, elevation) and "activity as tolerated." ECF no. 91 ¶ 29. Plaintiff describes the examination as short and cursory, and noted that Kibe never discussed surgery with him, ECF no. 115 ¶ 24, spent more time ogling female staff members than examining him, and then told him "your arm is defunct alright" and "John Elway won a Super Bowl with a pop-eye arm." ECF no. 4 ¶ 16-19. (The reference appears to be to the historical case of the Denver Broncos quarterback who had a long head of the bicep in his throwing arm rupture in 1997, after which (without surgery) he led his team to two consecutive Super Bowls. Reputedly, this inspired Brett Favre to have his biceps tendon cut in 2009, after which he threw for a career second-best season total of 4200 yards.) The next day plaintiff was seeking information about Kibe because he was so dissatisfied with the diagnosis and treatment recommendation that he planned to file a grievance.
On January 14, 2015, plaintiff was seen by a physician assistant at Houtzdale, Patrick Nagle, because plaintiff sought another opinion concerning his injury. Id. ¶ 30; ECF no. 116 ¶ 7. Nagle told plaintiff that he had already received an opinion at University Ortho that surgery was not recommended. ECF no. 91 ¶ 30; ECF no. 92-1 at 171. Plaintiff thereafter filed a grievance, No. 548682, seeking an MRI and surgery. ECF no. 4, Exhibits.
Plaintiff has been in prison since 1984, and at Houtzdale since about 1997. ECF no. 18 ¶¶ 4, 7; ECF no. 115 ¶ 5. It is not in dispute, ECF no. 115 ¶ 13, and more than 200 pages of medical exhibits indicate, that Dr. Naji had seen plaintiff before December 2014 for medical issues, including for complaints about plaintiff's right shoulder. ECF no. 91 ¶¶ 31-65. However, after January 2015, although plaintiff has sought medical attention for other issues including bilateral tennis elbow in January 2016, see ECF no. 92-1 at 164, 250, there are no records that indicate any complaint related to his bicep injury. According to plaintiff, notwithstanding that absence of records he spent unspecified "months" informing Dr. Naji and the health care administrator (Pearson) about his constant and intense pain, ECF no. 115 ¶ 32, and Dr. Naji told him "there wasn't enough funds for further treatment in the budget." ECF no. 115 ¶ 38. Plaintiff asserts that he has suffered "at least 50% loss of [his] dominant right arm." ECF no. 115 ¶ 13. He asserts that the records are inaccurate about several matters including his height and whether he has allergies, but he does not disagree that the record accurately shows no subsequent complaints about his bicep. He explains (although the explanation is inconsistent with his claim to have complained for months) that the lack of a record of complaints is due to his poverty and his fear that he would have other injuries ignored. ECF no. 114 ¶¶ 77-79.
In his opposition to summary judgment, plaintiff announces that discovery has not yet commenced, "let alone" been completed. ECF no. 114 ¶ 4. This is incorrect. I established a discovery schedule shortly after the answer was filed, ECF no. 74, and in February of this year I advised plaintiff if he needed more time to respond to the summary judgment motion because there were facts or records not available to him, he should specify what additional discovery he needed. ECF no. 95. Plaintiff indisputably had his medical records by February of this year because they were attached to Dr. Naji's motion for summary judgment. Plaintiff filed a motion in May of this year advising he was waiting for additional records, ECF no. 102, and another motion in late August, ECF no. 109, complaining about how the response to Covid-19 was impeding his use of the law library. In both cases the plaintiff was granted the extensions of time he sought, and in his response to the motion for summary judgment he does not suggest the existence of any additional relevant records.
Plaintiff has no expert and, despite his strong opinions on the adequacy of health care for inmates, on health care for elderly inmates, and on his health care in particular, his opinion is not competent evidence to describe the standard of care for his injury or what Dr. Naji knew about the standard of care at the time he examined plaintiff. Expert testimony is necessary where, as here, the range of proper treatments for an injury is not readily apparent to a lay person. See Mitchell v. Gershen, 466 Fed. Appx. 84, 87 (3d Cir. 2011). Not only is there a dispute between the parties (one that a layperson's opinion could not resolve) over whether conservative treatment equals deliberate indifference, there is a more pointed dispute needing expert testimony because plaintiff asserts that time was of the essence and Dr. Naji was deliberately indifferent for not ensuring surgical treatment sooner. Compare Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993)(finding a genuine issue of fact precluded summary judgment on a claim that delay in physical therapy showed deliberate indifference to plaintiff's stroke where it was undisputed that physical therapy had been recommended and that time was of the essence in providing therapy).
In support of his claim that conservative treatment or any treatment short of an MRI and immediate surgery could be found to be deliberate indifference because by the time plaintiff was seen his injury was irreparable, plaintiff attaches multiple documents, from a letter written by an undecipherable name at the American College of Sports Medicine, ECF no. 115-5, to printouts of information downloaded from medical websites providing information on biceps and other injuries, ECF nos. 115-2, 115-7, 115-9, 115-10, 115-11. Some of the documents provided by plaintiff, if competent evidence, would support Dr. Naji's position and not plaintiff's. For instance, "A Patient's Guide to Biceps Rupture," downloaded from the orthopedic department of Houston Methodist, provides, "[t]he physical exam is often most helpful in diagnosing a rupture of the biceps tendon. Your doctor may position your arm to see which movement are painful and weak. By feeling the area of the muscle and tendon, the doctor can often tell if the tendon has ruptured. The muscle may look and feel balled up in the middle of the arm, and a dent can sometimes be felt near the top of the shoulder." ECF no. 115-9 at 4. The guide further provides, "Doctors usually treat a ruptured long head of biceps tendon without surgery. This is especially true for older individuals who can tolerate loss of arm strength or if the injury occurs in the nondominant arm." Id. at 5. However, it is important to stress that the information downloaded from the internet by plaintiff and defendant, while helpful background, is not competent evidence of the standard of care. It is plaintiff's burden to show by competent evidence that there is a dispute of fact about the standard of care and whether Dr. Naji deviated from it.
No jury properly instructed on the meaning of deliberate indifference could find that Dr. Naji knowingly disregarded plaintiff's serious medical need. He did not (1) deny a reasonable request for medical treatment or (2) refuse to provide it, or (3) delay it for nonmedical reasons, or (4) prevent plaintiff from receiving recommended treatment. On the day of plaintiff's injury, Dr. Naji saw plaintiff, noted that plaintiff was prescribed pain relief medication and sought approval for an outside orthopedic consult. There is no evidence that there was any "delay" in treatment, much less delay for nonmedical reasons, because simple lapse of time is not delay. Plaintiff suggests that it is defendant's burden to show that defendant had him seen as soon as possible, see ECF no. 115 ¶ 18. That is not correct. Plaintiff also complains that Naji could not rely on Kibe's assessment because Kibe was incompetent and Kibe did not adequately examine him, but plaintiff's argument is the circular one that Kibe's inadequacies can be inferred from the fact that Kibe did not order an MRI and recommend surgery.
To the extent that plaintiff disagrees with the speed of Naji's scheduling of an evaluation or his acceptance of Kibe's treatment recommendation, even if the alternative courses of action plaintiff wished for would been better, his disagreement cannot support a claim for deliberate indifference. See Matthews v. Pa. Dep't of Corr., 613 Fed.Appx. 163, 170 (3d Cir.2015) (noting that even if the medical defendants exposed the inmate plaintiff to a greater risk of injury by refusing to recommend a cell reassignment, their mistake was negligence, not deliberate indifference); Crawford v. McMillan, 660 Fed.Appx. 113, 118 (3d Cir. 2016) (inmate's personal disagreement with his treatment and its adequacy does not raise an inference of deliberate indifference). Viewing the evidence in the light most favorable to plaintiff, Dr. Naji is entitled to judgment as a matter of law. Compare Mendez v. Pennsylvania Department of Corrections, 233 Fed.Appx. 159 (3d Cir.2007) (affirming the dismissal of inmate's claim that he was not seen until several months after he ruptured his bicep tendon, by which time corrective surgery was no longer a viable option.)
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal may be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error). DATE: October 28, 2020
Keith A. Pesto,
United States Magistrate Judge Notice by ECF to counsel of record and by U.S. Mail to:
Charles T. Jones, AY-6853
P.O. Box 1000
Houtzdale, PA 16698-1000