Opinion
3:19-CV-00163-KRG
08-04-2022
GREGORY LINDELL BURNS, Plaintiff v. JENNIFER SCHROCK, RNS; JAWAD A. SALAMEH, M.D.; MELISSA STEFANIC, RN; ANDREW DANCHA, DO; ERIN CLARK, CRNP; AND CHARDONNAY DIALYSIS, INC., Defendants,
GREGORY LINDELL BURNS SCI LAUREL HIGHLANDS Attorney[s] for Defendant[s] via electronic filing
GREGORY LINDELL BURNS SCI LAUREL HIGHLANDS Attorney[s] for Defendant[s] via electronic filing
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge.
I. RECOMMENDATION
This civil rights action was initiated pro se by Plaintiff Gregory Lindell Burns (“Plaintiff”) against several Defendants for alleged violation of his civil rights while incarcerated in the Pennsylvania Department of Corrections State Correctional Institution (“SCI”) at Laurel Highlands. Presently before the Court is a Motion to Dismiss for failure to file a Certificate of Merit by Defendants CharDonnay Dialysis, Inc. (“CharDonnay”) and RN Melissa Stefanic (“RN Stefanic”). (ECF No. 112).
The Court has subject matter jurisdiction under 28 U.S.C. § 1331. For the reasons that follow, it is respectfully recommended that Defendants' motion be denied and that the Court enter an Order giving Plaintiff twenty days to submit a Certificate of Merit as to Defendant CharDonnay.
II. REPORT
a. Background
Plaintiff initiated this lawsuit on October 7, 2019, and thereafter was permitted to amend his complaint twice. The operative facts are taken from his Third Amended Complaint (“TAC”) (ECF No. 109). Plaintiff receives dialysis treatment. Defendants CharDonnay Dialysis, Inc. provides the nurses and technicians that provide the dialysis treatments, and are under the supervision of Defendant Melissa Stefanic, RN. Plaintiff alleges that prior to September 2019, Plaintiff's left arm fistula was normal. On October 6, 2018, his left arm and hand had edema noted by a CharDonnay technician and his treating physician, Dr. Salameh, was made aware of this. A fistulagram was ordered on October 9, 2018 at Connemaugh Memorial Hospital Center. An occlusion was noted to be present in the upper left arm. Upon return to SCI Laurel Highlands, Plaintiff's left hand and arm showed moderate swelling.
On November 15, 2018, Plaintiff wrote to Dr. Dancha that he had swelling in his left arm, and went for a fistulagram a month prior and was told his vein was “no good.” TAC at 8. Dr. Salameh explained to Plaintiff that no doctor would perform the surgery to repair his vein and Dr. Salameh was trying to force Plaintiff to go to another dialysis site, but Plaintiff wanted his vein repaired. Plaintiff alleges that Dr. Dancha never responded.
In November 2018, Dr. Salameh told Plaintiff that it was too expensive to repair the veins in his left arm.
On December 4, 2018, a CharDonnay technician noted that Plaintiff was grimacing and massaging his left arm and asked to be let off treatment 14 minutes early.
On December 21, 2018, Plaintiff underwent another fistulagram and vein mapping showed inadequate veins for an AVF and a right upper arm AVG was recommended.
On January 16, 2019, another fistulagram was performed and it showed left upper arm edema with central stenosis and the occlusion was unable to be opened.
On January 27, 2019, a culture of purulent discharge was taken of Plaintiff's left arm which showed an abscess and he was prescribed antibiotics. Defendant Stephanic told technicians to keep using the left arm site and to just stick the needles around the abscess.
On February 13, 2019, the left arm fistula was blocked and Plaintiff underwent surgery for a right arm AVF creation.
On March 22, 2019, Plaintiff wrote to Dr. Dancha, and informed him that he “needs to send me to see a vascular surgeon since my left hand finger tips is(sic) dark purple and feels cold.” Id. at 9. Dr. Dancha did not respond to Plaintiff or take any action in response to Plaintiff's information.
On April 19, 2019, a vascular study was ordered and completed and recommended further testing and on April 23, 2019, Plaintiff spoke with Dr. Salmeh about the fistula site.
On April 26, 2019, Plaintiff was taken to the emergency room and admitted as an inpatient due to swelling and abscess in the Plaintiff's left arm. A right arm fistula was placed on April 29, 2019.
Plaintiff brings a “negligence” claim against RN Stephanic for telling the technicians to keep using the left arm site and sticking the needle around in the abscess and CharDonnay for not having policies in place to prevent such actions or failing to enforce such policies.
b. Standard of Review
i. Pro Se Pleadings
A pro se pleading is held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). As a result, a pro se complaint under 42 U.S.C. § 1983 must be construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). While pro se litigants are afforded this leniency, they “do not have a right to general legal advice from judges,” and “courts need not provide substantive legal advice to pro se litigants” because pro se litigants must be treated “the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
i. Federal Rule of Civil Procedure 12(b)(6)
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). Yet the court need not accept as true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion, a complaint must provide more than labels and conclusions. Bell Atlantic Corp., 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 555. Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic Corp., 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (quoting Bell Atlantic Corp., 550 U.S. at 556) (internal citations omitted).
When considering a Fed.R.Civ.P. 12(b)(6) motion, the court's role is limited to determining whether a plaintiff has a right to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
As a general rule, if a court “consider[s] matters extraneous to the pleadings” on a motion for judgment on the pleadings, the motion must be converted into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Even so, a court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents integral to or explicitly relied on in the complaint, even if they are not attached, without converting the motion into one for summary judgment. Mele v. Fed. Rsrv. Bank of New York, 359 F.3d 251, 256 n.5 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
c. Discussion
Defendants CharDonnay and RN Stefanic argue that Plaintiff's negligence claim against them must be dismissed because he failed to file a Certificate of Merit based on his alleged breach in the standard of care for dialysis providers, and therefore his claim must be dismissed as a matter of law.
Defendants also argue that Plaintiff improperly expanded his claims in his amended complaint when Plaintiff included a claim against CharDonnay that it failed to enforce any policies it had, and that RN Stefanic failed to contact Plaintiff's treating physicians before treating him and these claims are “time barred.” Defendants do not offer any citation to legal authority to support a finding that these claims are time barred and to the extent that Defendants cite to the Court's prior Order warning Plaintiff not to expand his claims, a fair reading of that Order does not prevent a Plaintiff from pleading claims that are related to the lawsuit, such as the claims pleaded by Plaintiff here and it is respectfully recommended that Defendants' argument be summarily denied. See Order (ECF No. 108) (“Plaintiff is cautioned that the opportunity to file an amended complaint is not an invitation to enlarge the lawsuit by filing new allegations not related to the allegations in the complaints or by adding defendants not related to the allegations in those original complaints.”) (emphasis added).
Pennsylvania law requires that a certificate of merit accompany a claim for professional liability brought against designated licensed professionals, including health care providers. See Pa.R.C.P. No. 1042.3 and 1042.1(b). The United States Court of Appeals for the Third Circuit has held that Rule 1042.3 is substantive law under the Erie doctrine and must be applied as such by federal courts. Liggon-Redding v. Est. of Sugarman, 659 F.3d 258 (3d Cir. 2011). This requirement of state law applies with equal force to counseled complaints, and to pro se medical malpractice actions brought under state law. See Leaphart v. Prison Health Servs., Inc., No. 3:10-CV-1019, 2010 WL 5391315 (M.D. Pa. Nov. 22, 2010).
Plaintiff filed a Certificate of Merit with respect to RN Stefanic on July 16, 2021 indicating that “expert testimony of an appropriate licensed professional is not needed for prosecution of this claim.” (ECF No. 98). As for CharDonnay, Plaintiff filed a motion for determination that a Certificate of Merit is not needed for the claims against CharDonnay. (ECF No. 91).
As for the Certificate of Merit filed for RN Stefanic, courts have concluded that a plaintiff's compliance with Rule 1042.3, by “attesting that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim,” is “not fatal at this stage of the proceedings [i.e., a pending motion to dismiss].” See Moore v. Wetzel, No. 1:18-CV-1523, 2019 WL 1397405, at *13 (M.D. Pa. Mar. 6, 2019), report and recommendation adopted, 2019 WL 1383631 (M.D. Pa. Mar. 27, 2019). As the Court of Appeals for the Third Circuit has noted:
There is no basis in Pennsylvania law that would permit a district court to reject a filing under Rule 1042.3(a)(3) in favor of one filed under Rule 1042.3(a)(1). Pennsylvania law expressly allows a plaintiff to proceed on the basis of a certification that expert testimony will not be required to prove h[is] claim. Of course, the consequence of such a filing is a prohibition against offering expert testimony later in the litigation, absent “exceptional circumstances.” Pa. R. Civ. P. 1042.3(a)(3), Note. A filing under this rule allows the case to proceed to discovery, leaving the consequence of [the plaintiff's] decision to be dealt with at a later stage of the litigation, such as summary judgment or trial.Liggon-Redding, 659 F.3d at 265. It is therefore respectfully recommended that Defendant RN Stefanic's motion to dismiss be denied and the court decline to dismiss Plaintiff's medical malpractice claims against RN Stefanic at this time.
As for Defendant CharDonnay, pursuant to Rule 1042.6(c) of the Pennsylvania Rules of Civil Procedure, Plaintiff has filed a motion for the Court to determine whether a Certificate of Merit is required.
“To establish a breach of duty in a professional negligence action, a plaintiff must show that the defendant's conduct fell below the relevant standard of care applicable to the rendition of the professional services at issue.” Zokaites Contracting Inc. v. Trant Corp., 2009 PA Super 35, 968 A.2d 1282, 1287 (2009). “A complaint sounds in malpractice where the conduct at issue constituted an integral part of the process of rendering medical treatment.” Iwanejko v. Cohen & Grigsby, P.C., 249 Fed.Appx. 938, 944 (3d Cir. 2007) (quotations and citation omitted).
The gravamen of Plaintiff's claim is that Defendant CharDonnay is negligent because it “acted unreasonably when it did not have policies in place to prevent” RN Stefanic from not “consulting” with Plaintiff's treating physicians and telling technicians to use the left arm fistula site and to “stick the needle around the abscess” or if it “did have the appropriate policies in effect, it failed to enforce these policies.” TAC (ECF No. 109 at p. 10).
Plaintiff's claims against CharDonnay that failure to have medical policies, or failure to adhere to policies in treating Plaintiff's dialysis needs fell below the standard of care is an issue that requires expert medical testimony. Therefore, it is respectfully recommended that Defendant CharDonnay's motion to dismiss be denied and that Plaintiff be required to file a Certificate of Merit with respect to CharDonnay for his negligence claims within 20 days of the Court Order. Pa.R.C.P. No. 1042.6(c).
Alternatively, while it may be “counterintuitive given the Court's finding that a certificate of merit is necessary,” Plaintiff may file a Certificate of Merit pursuant to Pa.R.C.P. No. 1042.3(a)(3) attesting that a medical expert is not necessary. Frantz v. Fasullo, No. 3:13-CV-02345, 2014 WL 6066020, at *5 (M.D. Pa. Nov. 13, 2014) (a “court is not free to reject a plaintiff's reliance on Rule 1042.3(a)(3) and dismiss the complaint for failure to file a certificate of merit under Rule 1042.3(a)(1).”). In that circumstance, Plaintiff will not be permitted to thereafter offer expert testimony absent exceptional circumstances. Liggon-Redding, 659 F.3d at 265.
d. Conclusion
Based on the foregoing, it is respectfully recommended that Defendants' motion be denied and that the Court enter an Order giving Plaintiff twenty days to submit a Certificate of Merit as to Defendant CharDonnay.
Any party may file objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by August 23, 2022 and Defendants, because they are electronically registered parties, must file objections by August 18, 2022. The parties are cautioned that failure to file objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
Honorable Kim R. Gibson United States District Judge