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IN THE COURT OF COMMON PLF.AS OF CUMBP.RLAND COUNTY, PP.~NS'fL'/MrIA
CIVIL DIVISION - LAW
SAMUP.L WHITE,
Plaintiff
I
No. ~595 Civil 1994
v.
COMMONWEALTH OF PP.NNSYLVANIA,
DEPARTMP.NT OF CORRF.CTIONS;
KATHY MONTAG; and GAIL A.
KF.LLY,
Defendants
PLAINTIFF'S PRETJIMINARY OBJF:CTIONS
TO DEFENDANTS' PRELIMINARY OB~TIONS
AND NOW, Plaintiff, Samuel White, hereby preliminarily objects
to defendants' preliminary objections in the form of demurrer dated
August 15, 1994, and answers same as follows:
I. Preliminary Objection Raising a Question of Failure to Conform
to Pa.R.C.P. 1026(a).
1. Plaintiff commenced the instant action by filing the
complaint via certified mail on June 21, 1994.
2. Defendants, the Commonwealth of Pennsylvania, Departmont of
Corrections, Kathy Montag and Gail A. Kelly, authorized agent accepted
service on behalf of each individual defendant in accordance with
Pa.R.C.P. 402(a)(2)(iii) on June 29, 1994. A true and correct copy of
each Return Receipt is attached hereto and marked collectively as
Plaintiff's Exhibit .A."
3. Notwithstanding, on July 7, 1934, each individual defenilant
was again personally served with plaintiff's complaint, this time by
the Cumberland County Sheriff's Office. A true and correct copy of
the Sheriff's Return of Service is attached hereto and marked as
Plaintiff's Exhibit "B."
4. Uonsequently, defendants' answer or response to the primary
copy of the complaint received on June 29, 1994 was due on or before
July 12, 1994. Alternatively, defendants' answer or response to the
latest copy of the complaint received on July 7, 1994 was due on or
before July 27, 1994.
See, Pa.R.C.P. 1026(a).
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5. However, instead of filing an answer or pleading, defendants
moved the Court for an extention of time til August 16, 1994, inwhioh
to "answer or otherwise respond to the complaint... ~,Defendants'
Motion For Extention of Time dated July 26, 1994, at para. 7. A true
and correct copy of said motion is attached hereto and marked as
Plaintiff's Exhibit "C."
6. As defendants were effectively served with the complaint on
June 29, 1994, plaintiff deemed it unnecessary to respond to defendants
motion because not only was it untimely, but also failed to comply with
the Local Rules of Court, namely C.C.R.P. 206-3.
7. To the best of plaintiff's knowledge, defendants have not been
granted the requested extention of time.
8. Accordingly, 1efendan ts I preliminary objections are untimely
and should be stricken. Triage, Inc. v. PennDOT, 113 Pa. Cmwlth. 348,
356-57, A.2d, (1988).
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WHEREFORE, plaintiff respectfully requents that defendants'
untimely preliminary objections be stricken pursuant to Pa.R.C,P.
1017 (b) (2).
II, Preliminary Objection Raisine a question of Failure to Conform
to Pa.R.C.P. H)19(d), (h) and Lack of Judicial Noticfl.,-__
9. Plaintiff incorporates bY' reference para~raphll 1 throu/l;h 8
above.
.. 2..
10. Preliminary objltctions unquestionably constitutes "pleadings."
~, Clay v. Advanced Computer Applications, Inc., 370 Pa. Super. 497,
508-07, 536 A.2d 1375, 1382-83 (1988), rev'd in part, 522 Pa. 86, 559
A.2d 91 7 (1989).
11. Defendants request this Court to take judicial notice of DC-ADM
003, the Department of Corrections regulation governing, among other
things, custody and release of inmates medical records. ~, Defendants'
Preliminary Objections at para. 12.
12. At the pleading stage, judicial notice is severely limited.
Johnston v. Lehman, ___pa. Cmwlth.___, ___, 609 A.2d 880, 883 (1992);
Martin v. PennDOT et. al., 124 Pa. Cmwlth. 625, 630, 556 h.2d 969, 974
(1989). Indeed, courts may only take judicial notice of those rules and
regulations published in the Pennsylvania Code or the Pennsylvania
Eulletin, and the supplements thereto. 45 Pa.C.S.A. g 506.
13. Plaintiff has no t been able to find (and defendants do no t ci te)
where DC-ADM 003, as it relates to medical records, is published in
either the Pennsylvania Code or the Pennsylvania Bulletin, including
the supplements thereto.
14. Thus, it would appear that DC-ADM 003, as it relates to medical
records, was not promulgated in accordance with the provisions of the
Commonwealth Document Law, 45 P.S. ~ 1101 et seq., the LeRislative
Reference Bureau, 45 Pa.C.S.A. ~ 501 et seg., nor the Re~latory Review
Act, 71 P.S. Q 745.1 et seq. hs such, this Court should not take judicial
notice of DC-ADM 003 insofar as it relatee to medical records.
15. Also, defendants have violated Pa.R.C.P. 1019(d), (h) by attach..
ing DC-ADM 003 thereto their preliminary objections. See, Facchiano
- ------
Contracting v. Turnpike Com~, 153 Pa. Cmwlth. 138, 144, _A.2d_,
____ (199~). For this additional reason, plaintiff's
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objection should be sustained.
WHEREFORE, plaintiff respectfully requests that nC..ADM 003,
appended thereto defendants' preliminary objections, be stricken
pursuant to Pa.R.C.P. 1017(b)(2).
III. Preliminary Objection Raising a Question of Failure to Conform
to Pa.R.C.P. 1024.
16. Plaintiff incorporates by reference paragraphs 1 through 15
above.
17. Defendants' preliminary objection at paragraph 9 reads as
follows:
"The information contained in plaintiff's
medical records is available to him through
Department policy. Plaintiff has failed to
avail himself of that opportunity, but has
instead requested a complete copy of his
medical records."
18. The facts alleged in plaintiff's complaint does not support
defendants assertion. To the contrary, plaintiff specifically stated
that he "requested to inspect and photocopy, at his own expense, all
medical records maintained by the Medical Department at SCr..OH
concerning his person on March 8, 1994." ~,Complaint at para. 11.
19. Since defendants are alleging facts not appearing in the
complaint or record, they were requir~d to "state that the averment
or denial is true upon the signer's personal knowledge or information
and belief and shall be verified." ~, Pa.R.C.P. 1024(a). However,
they did not. The Court should strike defendants averment at para~rAph
9. ~ Zeger v. Harrison, 25 n. & C.2d 60 (1960).
WHP.RF,PORT<:, plBintHf respectfully requests that paragrAph 9 of
defendants' preliminary objection be stricken pursuant to Pa.R.~.P.
1017 (b) (2) .
-4..
IV.
Preliminary Objection Raising a Question
"Speaking Demurrer."
20. Plaintiff incorporates by reference
of Defendants' Improper
paraeraphs 1 through 1q
above.
21. Defendants have attached a regulation (ne-ADM 003) in support
of their preliminary objections, which this Court should not take
judicial notice of, and have asserted facts not apparent from the face
of the challenged pleading. ~,supra., at paras. 9-19. Thus,
defendants I demurrer cons ti tutes an impermissible "speaking demurrer."
Johnston, supra., _pa. Cmwlth. at _, 6QO A.2d at 882; !:!!!:tJ.n, ~upra.,
.
124 Pa. Cmwlth. at 628-29, 556 A.2d at 881-82; and accordingly, it should
be 0 verruled.
WHEREFORE, plaintiff respectfully requests that defendants'
preliminary objection in the nature of demurrer be overruled.
V. Preliminary Objection to Defendants' Demurrer.
22. Plaintiff incorporates by reference paragraphs 1 through 21
above.
A. Standard
23. The standard in which this Court must employ in determining a
demurrer was succinctly stated in Gekas v. Shap~, 469 Pa. 1,364 A.2d 691
(1976) :
The standards for sustaining preliminary objections
in the nature of a demurrer are quite strict. A
demurrer admits every well-pleaded material fact set
forth in the pleadinr;s to whi.cL 1 t is addressed as
well as all inferences reasonably deducible therefrom,
but not conclusions of law.... In order to sustain
the demurrer, it is essential that the plaintiff's
complaint indicate on its face that his claim cannot
be sustained, and the law will not permit recovery....
If there is any doubt, this should be resolved in
favor of overruling the demurrer.
!!t., 469 Pa. at 5-6,364 A.2d at ;S'J3 (citation omitted). In addition,
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because "Pennsylvania is a 'fact pleading' jurisdiction under which
courts are presumed to know the law, () plaintiff() need only plead
facts constituting (a) cause of action, and the courts will take
judicial notice of the statute involved." Heinly v. commonwea~,
153 Pa. Cmwlth. 599, 621 A.2d 1212, 1215 n. 5 (1993); Diaz v. Houck,
___Pa. Cmwlth.____, 632 A.2d 1081, 1086 n. 6 (1993). Finally, courts
do not hold pro se complainants to the stringent standarrls expected of
pleadings drafted by lawyers, and will examine the substance of the
complaint to determine if, under any reasonable reading ot the pleading,
the complainant may be entitled to relief. Madden v. Jeftes, 85 Pa.
Cmwlth. 414, 418, 482 A.2d ___, ___ (1984).
B. Discussion
a. Count I and II
24. The factual averments of plaintiff's complaint demonstrates
that defendants objection is without merit. Although defendants
attempt, in their preliminary objections, to style plaintiff's action
as one seeking access to an adequate law library or adequate legal
assistance, a fair reading of plaintiff's complaint reveals that the
real focus of plaintiff's claims is that defendantD' denial of plaintiff's
request for a copy of his medical records is infringing or renderinl!;
nugatory his constitutional right of access to the courts.
25. Plaintiff's right to present a claim before a court of law is
one of the most fundamental rights protected by tile United states
Constitution. As characterized by the United states Supreme Court in
Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 28 S.Ct. 34 (1907),
(t)he right to sue and defend in the courts is
the alternative of force. In an organized SOCiety
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it is the right conservative of all other rights,
and lies at the foundation of orderly government.
It is one of the highest and most essential
privileges of citizenship, and must be allowed by
each state to the citizens of all other stated to
the precise extent that it is allowed to its own
citizens. Equality of treatment in this r~spect
is not left to depend upon comity between the
states, but is granted and protected by the
Federal Constitution.
~., 207 u.s. at 148, 28 S.ct. at 35 (citations omitted). While the
Chambers Court viewed the right of accesn to courts as one of the
pri vileges and immuni ties accorded under Article IV of the Consti tu tion,
other courts have determined the right to also be grounded in the First
Amendment right to petition and in the nue Process and P,qual Protection
Clauses of the Fourteenth Amendment. ~,MUrray v. Giarratano, 492
U.S. 1, 109 S.ct. 2765 (1989); Agresta v. City of Philadelph~, 801 F.Sup~
1464, 1472 (E.D. Pa. 1992). Like the United states Constitution, the
Pennsylvania State Constitution also grants and protects an individual
right of access to the courts. Pennsylvania state Constitution Article r,
Sections 1, 11, 20,25,26 and 28.
26. The right of access to courts requires that an individual have
"adequate, effective and meaningful II access to the court procedures. ~,
Bounds v. Smith, 430 U.s. 817,822,97 S.ct. 1491, 1495 (1")77). On that
basis, courts have found various ac ts of de laY' in court proceed i ngs and
suppression or destruction of evidence to constitute an impermissible
burden on the right of access to courts. ~,Germany v. Var:~, MiA F.2d
9, 15 (1st Cir. 1989) (intentional suppreBsion of 0virlenc~ infringes upon
protected right of access to courts); Jackson v. Procunier, 789 F.2d 307,
311 (5th Cir. 1)86)("Any deliberate impediment to access, even a delay of
access, may constitute a constitutional deprivatIonll); Bell v. Milwaukee,
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746 F.2d 1205, 1260-63 (7th Cir. 1984) (withholding evldence that would
enable an individual to state a valid claim violates right of access);
Ryland v. Shapiro. 708 F.2d 967, 173 (5th Cir. 1983) (conduct which
interferes with the right to institute a suit constitutes actionable
impediment to right of access); Brown v. Grabowski, 922 F.2d 1097.
1113 n.l0 Ord Gir. 1990) (liThe constitutional ri~ht of FlCCSSS to the
courts also comprehends a rIc;ht to learn facts necessary to seek
redress for constitutional violations of individual r1.'~hts"): !!.ondu v.
Gurvich, 473 So.2d 1307 (Fla. App. 3 Dist. 1984)(failure to maintain and
provide medical records. upon request, interferes with one~ right to
seek redress in courts); Valcin v. Public Health Trust of Dade County.
473 80.2d 1297 (Fla. 3d DCA 1984)(same) (citations omitted).
27. Here, plaintiff does not have sufficient funds to hire an
attorney who would undoubtedly require the medical records in order to
research and draft an adequnte medical malpractice suit. In the same
vein, plaintiff's need for the medical records is equally. if not. more
important than that of a skilled attorney. As the Bounds ~ourt
recognized:
It would verge on incompetence for a lawyer to
file an ini tial pleading wi thout resea.rching such
issues as jurisdiction, venue, standing, exhaus-
tion of remedies. proper parties plaintiff and
defendant, and types of relief available. Most
importantly, of course, a lawyer must know what
the law is in order to J0t~rmlne wh~ther B
colorable claim exists. and if so, what facts are
necessar.Y' to state a cause of action.
If a lawyer must perform such preliminary
research. it is no less vital for a Kro se
prisoner. (footnote omitted) Indee ..:-it is
often more important that a prisoner complaint
set forth a nonfrivolous claim meeting all
procedural prerequisites, since the court may
pass on the complaint's sufficiencY' before
allowing filing ~ forma pauperis and may
(Continued... )
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(. .. .Continued)
dismiss the case if it is deemed frivolous.
Id., 430 l) .S. at 825-26, 'J7 S.ct. at 1496-<J7 (emphasis in orip;inal).
-
,Accord, Bonner v. City of prichard, Ala., 661 F.2d 1206, 1212 (11th Cir.
1981)(en bance); Ward v. Kort, 762 F.2d 856,859 (10th Cir. 1<J85).
28. As the facts of the complaint reveals, plaintiff io unable to
institute a legal action without his medical records. Indeed, without
the medical records plaintiff will be depri"ed of the abili tv to gF.lin
the testimony of an independent medical expert as to whether the acts
or omissions of the physicians in this case fell below the standard of
care owed plaintiff. Bxpert testimony is a prerequisite in establishing
medical malpractice under Pennsylvania law. Tarter v. Lin, 396 Pa. Super.
155, 159, 578 A.2d 453,
(1990). Moreover, Pa.R.C.P. IIl019(a)
requires fact pleading. 'The purpose of (1019(a)) is to require the
pleader to disclose the 'material facts' sufficient to enable the adverse
party to prepare his case.' A complaint therefore must do more than
'give the defendant fair notice of what the plaintiff's claim is and
the grounds upon which it rests.' It should formulate the issues by
fully summarizing the material facts. 'Material facts' are 'ultimate
facts,' i.e., those facts essential to support the claim." Baker v.
Rangos, 229 Pa. Super. 333,349, A.2d, (1974)(citlJ,tions omitted).
- --
In addition, averments of time, place and special damages must be
specific. Pa.R.C.P. 1019(f). Thus, it goes without saying, pleadin~s
must do more than allege boilerplate arId catch-all allegations of
medical malpractice__it must specifically identify defendants' negligent
acts or omissions. The value of medical records, in the perpetration of
a medical malpractice suit, cannot be understated. Consequently,
-'J-
plaintiff's medical records are required, and indeed crucial, in order
for him to research and draft his complaint to stRte a colorable claim
of medical malpractice. Accordingly, the facts alleged in the
complaint, which Count I and II arl!l based on, are sufficient BS A
matter of law. ~,stone It Edwards Ins. v. Dept. of Ins., 151 Pa.
cmwlth. 266, 271-72, 616 A.2d 1060,
(1992) (plaintiff under no
burden to prove his cause of action at demurrer stage, rather, court
must determine whether facts in the complaint are sufficient to
entitle plaintiff to any kind of relief).
b. Gount III
29. Defendants argue that Count III of the Complaint, alleging
negligence per se, should also be dismissed because they "acted in
accordance with (DC-ADM 003) in responding to plaintiff's request for
a photocopy of his medical records." ~,Defendants' Preliminary
Objections at para. 13.
30. It is well-set.tled that any power exercised bv an administrR-
ti ve agency, such as the Department of Corrections, must be conferred
by statute which can be either expressly conferred or necessarily
implied. Department of Environmental Resources v. Butler County
Mushroom Farm, 499 Pa. 509, 454 A.2d 1 (1982). Here, the powers of
the Commissioner of the Department of Corrections is severly limited
to "prescrib(ing) rules and regulations, not inconsistent with law."
- --
~, Section 506 of the Administrative Code of 1929, Act of April 9,
1929, P.L. 177, as amended, 71 P.S. ~ 186. (Empha.sis added).
31. Since it appears that the adoption and filing requirement~ of
the Commonwealth Document I,aw (Law), 45 P.s. S 1101 et seq.. the
Legislative Reference Bureau, 45 Fa.C.S.A. 9 501 et seq., and the
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Regulatory Review Act, 71 P.S. 8 745.1 et seq., were not observe~ with
respect to DC-ADM 003 as it rela tee to med ical records, the document
ie an ineffective and invalid regulation which cannot form the baeie
of defendants' decision. Baker v. Oepartment of Public Welfare, 93
Pa. Cmwlth. 632, 635,
A.2d, (1985).
- --
Therefore, regardlesB
of whether defendants acted in accordance with DC-AOM 003 in denying
plaintiff'e request for hie medical records is of no moment.
32. Even assuming for the sake of argument that DC-ADM 003 did
not need to be filed in accordance wi th the Law, the Commissioner
nevertheless exceeded the ecope of his statutory grant of authority
when he promulgated DC-A!lM 003 insofar as it relates to medical
records. This is because the "(l)egilllati ve power of the CommonweAlth
is vested in the General Assembly. The legilllature cannot dele~ate
power to make a law to any other branch of government or to anv other
body or authority. It follows that a rule promulgated by an
administrative agency that makes law by rule or regulation rather
than merely administer law acts iller.;ally." Lookenbill v. Garrett,
340 Pa. Super. 435, 443-44, 490 A.2d 857,
(1985}. Consequently,
no administrative rule or regulation can alter or modify any statute
enacted by the legislature, Serefeas v. Nationwide Insurance Co., 338
Pa. Super. 587,488 A.2d 48 (1985); Commonwealth v. Defusco, 378 Pa.
Super. 442, 549 A.2d 140 (1988), appeal dismissed, 523 Pa. 425, 567
A.2d 1043 (1990), and when it does, the rule or regulation must give
way.
33. Here, the legislature articulated strong pUhlic policy for
allowing access to one's medical records:
Patients or patient designees shall be ~t~
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access to or a copy of their medical records,
or both, in accordance with Q 013.22(b)(15)
(relating to implementation).... The patient
or the patient's next of kin may be charged
for the cost of reproducing the copien; how-
ever, the charges shall be rOflRonably related
to the cost of making the copy.
28 Pa. Code 8 115.29 (emphasio supplied). The Gode
further provideR that a physician engages in un-
professional conduct when he or she fails to make
available medical records or copieR of medical
rllcords at the (latient's request. 49 "a. Code II
17.251(18). (footnote omitted).
The Code reflects, therefore, a clear policy in
favor of a patient's acceSR to hiA or her medical
records. Indeed, there are obvious policy con-
siderations why medical records should be made
freely available to a patient at his or her request.
Access to medical records allows a patient to
participate meaningfully with hin or her physician
in making decisions re0arding treatment and
encourages informed consent. In addition, making
copies of medical records available to a pRtient
assists the patient in neeking a second opinion.
Soxman v. Goodge, 372 Pa. Super. 343, 347-48, 539 A.2d 826,
(1988); Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988)
(recognizing right of access to one's medical records based, in part,
on public policy). ~~, 49 Pa. Code ~ 16.95. Because the prison
infirmary is a health care facili ty licensed under the laws of this
Commonweal th which certified physicians and nurses, who are under
contract with the Department of Corrections, provide health care/medical
services to inmates, defendants are not immune from the force and
effect of Title 28 and 49 of the Pennsylvania Code'. And it would
ill become the defendants to argue the opposite.
34. Defendants continual denial of plalntiff's request for a
photocopy of his medical records not only violates Title 28 and 49 of
1. See, warehame v. Jcffes, 129 Pa. Cmwlth. 124, 564 A.2d 1314
(1'J89)(prI'S'On inUrmary properly claosified as a medical facility).
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the Pennsylvania Code, but also 42 Pa.C.8.A. . 6155(b) which provides
aa follows:
8 6155. Rights of patients
******
(b) Rights to records generally. --A
patient ahall have the right of access
to all of his medical charts and records
and to photocopy the same for his own
use.
Medical Records, Act of November 28,1')86, P.L. 1458, No. 145 Ill,
42 Pa.C.S.A. II 6155(b).
35. Under Pennsylvania law, a violation of a statute is negligence
per se. Garcia v. Bang, 375 Pa. Super. 356, 544 A.2d 512 (1988). As
the Garcia Court stated:
"The rule in Pennsylvania is that violation
of a statute is ne~l1gence per se. 'The
violation of a legislative enactment by doing
a prohibited act ... makes the actor liable
for an invaaion of an interest of. another.'
Jinks v. Currie 324 Pa. 532, 538, 188 A. 356,
'~!:l (l'nb) quoting Restatement, Torts (I 2fl6.
See also: Kaplan v. Kaplan, 404 Pa. 147, 149,
171 A.2d 1 00, 107 (1961 J; Ennis v. AIkin, 354
Pa. 1 65, 1 69, 47 A. 2d 21 7 , -'fl1 ( 1 ':140) ;
Salvitti v. Throppe, 343 Pa. 642, 644, 23 A.2d
445, 446 (1942J."
Id. at 358.
-
36. The above-cited statutes reflect the principles and policies
of this Commonwealth. The Commissioner plainly contravenes the
statutory laws of this Commonwealth with an ostensibly conflicting
regulation, namely OC..ADM 003. Consequently, it is readily apparent
that Count III of plaintiff's Complaint is suffioient as a matter of
law.
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Concluaion
WHEREFORE, for all of the above-stated reasons, defendants'
preliminary objections should be overruled and ~efendants directed
to answer plaintiff's complaint.
Respectfully submitted,
~~7;~
Samue e
Plaintiff, pro se
Date: August 29. 1994
!' .
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and ,.. il plid' .
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'uS GPO '....lO'.... DOMESTIC RETURN RICEIPT
,
.
5. This matter was assigned to the undersigned counsel on
July 20, 1994, however, coun.el was absent from the office until
Monday, July 25, 1994, due to a family medical emergQncy in
pittsburgh.
6. Due to other court obligations and deadlines, counsel
will be unable to interview the defendants and formulate a response
to the complaint by July 27, 1994.
7. Defendants request an additional twenty (20) days in
which to answer or otherwise respond to the complaint.
8. This motion is not submitted for purposes of delay.
9. The granting of this motion will not SUbstantially delay
the disposition of this matter.
10. plaintiff will not be prejudiced by the granting of this
motion.
WBUIJ'ORI, for the reasons flet forth above, defendants request
an additional twenty (20) day. in which to answer or otherwise
respond to the complaint so that same is due on or before August
16, 1994.
Respectfully submitted,
~~
Da~id B. Fa~
Assistant ~~~~"l
Attorney Identification No. 36801
Pa. Department of corrections
P. 0, Box 598, 2520 Lisburn Road
Camp Hill, pennsylvania 17001-0598
Dated: July 26, 1994
IN Tm: COllR'r O~' COMMOIl PI,"A:l 0[" CU~!m:RT.ANn I':OllN'PY, PI':NN:lYJ,l/ANIA
I':IV'H DIV'I:lION - I.AW
SAMIJF;L WHI'I'I':.
.
.
CIVIL ACTION NO. 941- ~9S-
JURY TRIAL DF.MANDF:D
Plaintif:f
.
.
v.
COMMONW)~ALTII o~' PENNS YLV'ANIA,
DBPAR'rMEN'r 0 I" CORRF.r)'rrO NS ;
KATHY MONTAG; and GAIL A.
KELLY.
Defendants
CO~1PLAINT
The Plaintiff, Samuel Whi te, by and through himself. complains
against the Commonweal th of Pennsylvrmia, Department of Corrections;
Kathy Montag; and Gail A. Kelly, Defendants, and aoserts the following
in support of his claim.
I. Partieo
1. The Plaintiff. .3amuel White ("ilhite"), is an adult individual
presently incarcerated in the Department of Corrections at the state
Correctional Institution at Camp Hill, Pcnncylvania.
2. 'rhe Defendant. Commonwealth of Pennoylvn.nia, Department of
Corrections ("Department"), i8 an established state administrative
agency and at all times mentioned herein thin complaint acted in its
official capacity. The Department is Gued in its official capacity.
3. The Defendant. Kathy Montar, ("Montar;"), is an adult Individual
employed FlS Health Care Adm Ini B trator of th("Ha tc I':orrec t ional
Institution at IJamp Hill, PennfJylvan1.1., by the Department of Justice,
Department of Corrections. An He81th Cnre Admin[ntrntor, nhe is in
char'~e of the Mertical Depllrtment and re8ponsible for, amon(': othp.r
thines, its day to rtaY' internal affairs, oper,'1t[on:l, nnd m'ln,'l!(ement,
as well as ausuring all inmnteo complete access to adequate medical
treatment. She is also 1~8ponoiblc for maintaining services adequate
to provide medical records which are accuratel.y documentod and readily
accessible to authorized peroons re0uiring ouch Bccena and which can
be readily uBed for rotrieving and compiling informntion. She ia sued
in her indivi,lual nnd off'1cial capo.cf.tics.
4. The Defendant, GaU A. Kelly ("KellY"), if! on adult indi-
vidual employed no Aoointant Modical Recordn Technician of the 9tate
Correctional Institution at Camp "ill, Pcnnoylvania, by the Depart-
ment of Justice, Department 0" Corr'lct;!onn. An n certiflcd medlcal
records practltioner, nhc io renponsiblc ror, among other things, to
diroct or manage, l1upervi::H', nnd perform work involved in the
developmont, analysis, maintenance Bnd uoo of medical records and
reports. She is sued in her individual and official capacities.
II. Facts
5. Plaintiff was incarcerated at the state Correctional
Institution at Gratorford (SC1-G) from April 30, 19J3 throu~h
July 13, 1993.
6. Plaintiff was thereafter transforcd to the S tate Correct-
ional Institution at Camp Hill (Ser-CR) on July 13, 1993, where he
presently remains incarcerated to date.
7. In May of 1'333, Plaintiff serlo\Jsly .Ln,jured his riF;ht knee
whil~ in the prison ~xerciae rard at SCT-G.
8. The aforosa.Ld injury was 00 serious in fact that an
unidentified prison ph/sician at SCI-G adviaed PIB.Lntiff that he
would require immediate [lUrgical tro8 tmcnt.
J. llo~lover, PlnintJ.Ct' did 1I0t actlw.lly receLve th0 roquired
surgical treatment untLl n yeur lator.
10. Plnintiff b.!Uoveo on,] therefore nverll that throll/.~hout his
your long trontment, ccrtnin utJIdl)ntLfiol] prtnon prlynLclnns and
nurSl1S were no(';ligcnt in Lrcatin(, his injury :1nd intl,!ntinnnlly
prolon(';ed the required 8ur6e1'Y which oaid acto or omisnlons waR
mal1cIouoly ond :]nd!.:l ticnlly calculrlkd for the nole purpose of
increaninrj hio pain and :lUft'orinI5 unneCCfll1l1rUy.
fl. As n rl!:mlt tllc1.'Qof, Plaint1ff requerlt('d to 1.1wpect and
photocopy, at hie own axpnnoo, 011 medIcal r0cordo maintained by
tile Medical Depnrtment at :-WI-GIl concernin('; hin pernon on Ma.rch 8,
lJJ4.
12. Plaintiff rcquented ooid merllc21 records from Defendant
Montag 1n order to lll10quntel,1 and effectively compose of lit m0dical
malpractice nu11; n(~o.ll1st thane individualn who we're nec;lJ.nmt in
attending to Plaintiff'o meJicnl neede.
13. On Narch 17, 1 ])4, Dc:fendant K('ll,y c1enied Plaintiff's
roquest for a photoco~1 of hie meclical records per order of
Defendant Montag.
14. PlaintIff wiohcs to AVRil himnelf of mc~nin~ful access to
thc courts co he will be atle to file a civil complaint B~ainst those
J.nrLlvlcJunlo who ~.','r" n(,,:ll.'~I,nt in I'lclmlni[lteril'H~ mr'rllcal trc8tment to
Pll'linUff.
15. Plnlntiff C8,nnot hav" IlioiHlln;ful acc"'lln to the courts
~Iithout havinl\ (1 pho tocop.\' or hin mOI1ical rl,'cor.d8.
16. 'Phc IJepartmont hi"" cDtrllJll:lhed throul"h, [lY'nctico, procedure
and re'~ulatLon, n pollc.\' wh1ch r,pocJ.r:'(~(llly prohlblb inrnnten, sucloj
nn PlalntJ.ff, frail! obtninItI,'., a cOPY' of hIn m[ldicnl rccor(ln without n
court 01'00.:1'. By eOtltrClnt, thl' Dep:'ll'tm',nt will rCJloJnnCJ, upon written
consent of the inmate, hin mcrllcnl recorda to hin ""ni,~nnt(>c1 attorney
wlthout a court ordCJr.
17. Plaintiff "oell not hnve sufficient funds or income to hlre
[In attorney.
18. Defendants, individunlly nnd collectively, are intentionally
frustrating the Plaintiff's ability to file and purnuc n medical
malpractice nuit.
1'). AD a dLroet and proximatn ronult of Defcndantl1 tortious
conduct, Plaintiff :;uffcred nnd cOl!tinl</)11 to l!uffer sever.e and perhaps
permanent men tal pain, omo t f.onal anc;u i nh, din trenn, nnd humiliation.
20. All the f'ore!:oine neb or ominnlonn of Defendants have, at
all timen material hereto, been committed WAntonly, wilfully, and
maliciously wi th a recklofJ:J (11nre"ar,1 for the r1."hts of the Plaintiff.
III. Caul10s of Action
Gount I
21. The alleGatf.ons of paraGrnphs 1 thr.ou~h 20 are incorporated
herein by reference nn if fully net forth atlenc;th.
22. The acto or omiooiotlo of the Defonrlnntn impcdo, hinders,
obstructo, deprives, and othcrwi3~ violates Plaintiff's rights,
privileges and immunitico ~uarantecd to him as a cit1.zcn of the United
Sta,tes by the Conclti tuUon and the Amendments thereto. in violntion of
42 U.S.C. ~ 1)83.
2':1. SaLc1 righto an,1 privllc(';en includr>rl thosc {jumcnntcrl by the
Pirot, Fifth and Fourte,cnth Amendmcnb, lneludInG but not llmited to:
(a) th(~ ri.,;h t to pc tL tl.on thr>;ovCrO'!len t fo t' r"'l rCClG 0 f'
creivenccs;
(b) tho right to ndequatc, affective, and meaningful Rccons
to tho courts; and
(c) tho ri(,h t to eounl [lr'o tee tio!l nnrler the la...l.
Count II
24. '1'he allc{'.;ntions oC pnJ:'nl,rn[lho 1 through 20 nre incorporated
herein by reference aD if fully oet forth at lenGth.
25. '1'hc acts or omiudonn of the' D()fnnrlnnts im[lodo, hinders,
obstructo, deprivcR nnd otlwrw.l:Jo vIolateD Plnintlff'o rIghts,
privileges and imlllunlt1en (';un.rnnteed to hIm an rt citizen of the
CommonweAlth by the Pl)unoylvanln Cor,stLtution (In well no the laws
and rel3ulnt1ons of tho Commonweal tho
26. Snid rl{"hto n.nd [lrLvl.lel3en Includcd thooe guar:1ntoed by
Article I, Scctiono 1, II, 20, 25,26 and 28 of the Pennsylvania
Conotitution, including but not limited to:
(n) the rl{"ht to peU t10n thc:"ovornment for redrE:f1s of
greivr:nces;
(b) the ri(;h t to adequate, effec tl ve, and mea.n lngful access
to the courts; and
(c) the riGht to equ.'ll protectLon under the law.
Coun t III
27. '1'he allel.r,aUons of para{',rnphn 1 throuc;h 20 are lncortlorated
herein by referonce nn if fully oet Carth at length.
28. The acto or 0mJ.:![;f.onn of the' Defcnrlrtnts amounts to negligence
per se as said conduct vlolntC8 atate le~iAlative enactments, including
but not limIted to, 'l'Ltle 28 of the Pcnno;rlvania Code ~ 115.1 et seCl,
aG well as Ti tle 4] of th,-, pennoyl.vanIa Code ~ 16.95, which is the
direct nnd proximnt0 C~UDe of Plnintlff'D lnjurl.es.
.....v. Proyer for Rolier
29. WHEREFORE, Plaintiff t'uopeetfully t'equ()ots thin Honorable
Court to e;rant the followinc rCIUcf:
A. Declare that tho acto or orr.il3010110 of Defend-ants,
individually and collectively, tortiously interfereo with Plaintiff's
right to meaninGful necens to the cOllrtn;
B. Permanently enjoin Defendants from tortiously
interfering with flnintiff' [l ri{';ht to menningful access to the
courts b.y order.inr; Defend :In to to comply with Plaln tl.ff I S reques t
for a photocopy of hl.n medical records;
C. Grnnt judGment a'~ainl'Jt Dcfcnclanto, Montae, Kelly, and
the Department of CorrecUono, .indivIdually, jointly and oeverr:l1ly
in excess of five thQuoond ($5,000.00) dollaro for ~amaBes sustained
by Plaint.iff tOGcther with cost and interest;
D. Grant punitivc damages in exceeo of ten thousand
cm10,ooo.00) dollara acainst each of the defendants; and
E. Grant P1alntiff such other 1oc;a1 and equ.itable relief
as the Court deoms jUa t. end proper.
Respectfully submitted,
~~f~U~~~
P1nint iff, pro ne
Date: June 21, 199~
IN TlIP. COlJR~' OF COMMON PI,I~AS OF CUMlmRLAND /jOUNTY, pl~Nr:Sn'fANIA
CIViL DIVISION - LAW
SA.MUr.L "mITE,
Plain tift'
CIVIL AC'rTON NO. c/4 ~ 359S
JURY 'PHIAL D'~~7ANTmD
v.
COMMONW8AL'rH OF PI~NNSY.'INANIA, :
m:PAR'rMT-:N'r OF CORRF:C'l'IomJ;
KA.THY MONTAG; and GAIL A.
KELLY,
Dcfendan ts
PrW01" OF S":RVrCF:
I, Samuel \~hHc, hereby c"rtLfy that I ani this daY' rlOrvlng the
foreGoing dOQuments entltlen NotIce and Complaint, upon the persons
and in the manner Indicated b0low wh lch 1'J(~rvice snUsfi(:s the
re!]uirements of Pennsylvnnia Ruleo of Civil Prooedure:
Service bY' certIfied mail addreoscd on
Commonweal th 0 f Penno.!l vanIa
Department of Corrections
P.O. Box 598
Camp Hill, Pa. 17001..0598
follow::J :
Ms. Gail A. Kelly
P.O. Box 200
Camp Hi n, Pa. 17001..0200
Ms. Kathy Monta,,;
P.O. Box 200
Camp Hill, Pa. 17001-0200
Date: June 21, 1994
(S)~~iJ ~
amue " n
PlaIntiff, pro ne
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Public assistance: NO
Other: 110
(d) .
other contributions to household support
(WHe) (Husband) Name: None
(e) .
Pro perty owned: NOlle except personal items,
Cash: L<HIS than :$30.00 dollarn.
Checldng account: NO
Saving account: NO
C'ertificato of deposit: NO
Real es ta to: NO
Mo tor vehicle: NO
Stocks; Bonds: NO
Other: 110
(f). Debts and oblJ.gationn: .None
(fJ, Porelonn dependent upon you for support: None
4). r underc; tand that r have a continuing obligatIon to inf.orm
the court of improvement ln my fJ.nn.nclnl circumstances which would
permit me to pay the coots incurr..'d r.erein.
5). r verify that the otaternentn ma.de in thls affidavit are
true and correct. r IHllh:rs tand that false r,tatements herein are made
subject to the penaltieG of 13 Pa. e,S. ~ 4304, relatinG to unsworn
fololflcatlon to au thori ties.
Date: fa - ;).,-~ '--J
~J~.reJJuj Lv~ t
Plaintiff, pro Be
I,
I
I
I
I
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-."
. .
Samuel White
vs
Commonwealth of Pennsylvania,
Department of Corrections
Kathy Montag and Gail
A. Kelly
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. 94-3595 Civil Term
Complaint in Civil Action Law
and Notice
Wesley Cook, Deputy Sheriff, who being duly sworn according
to law, says on July 7, 1994 at 2130 o'clock P.M., E.D.S.T., he served
a true copy of Complaint in civil Action Law and Notice , in the
above entitled action upon one of the within named defendants,
to witl Commonwealth of Pennsylvania. Department of Corrections
by making known unto Tracey McCullough Clerk for Commonwealth
of Pennsylvania, Department of Correctionsat SCI Camp Hill
Lisburn Road, Camp Hill, Cumberland County, Pennsylvania. its
.contents and at the same time handing to her personally the said true
and attested copy of the same.
Wesley Cook, Deputy Sheriff, who being duly sworn according
to law, says on July 7. 1994 iH 2.40 o'clock P.M., E.D.S.T.. he served
a true copy of Complaint in Civil Action Law and Notice. in the
above entitled action upon two of the within named defendants, to
witl Kathy Montag and Gail A. Kelly by making known unto Lousie
Perkins Secretary for the Superintendent for Kathy Montag and
Gail A. Kelly at SCI Camp Hill. Lisburn Road, Camp Hill.
Cumberland County, Pennsylvania its contents and at the same
time handing to her personally the said true and attested copy of the
same.
Sheriff's Cos ts
Docke Hng
Service
.~ /'"
So answers. /,'
.,.,.....,<'" .
22.00
8.40
30.40
....-.,
R. Thomas Kline. Sheriff
by
?d/~~
eputy
,
Sworn and subscribed to before me
this /J ~ day ~Of {)k.~ _
1994, A.D. (~1"PL () ]h";L'-<,JtJ,~
~'Prothonotary '17
3. Plaintift claims that in March, 1994 he requested a copy ot
hi. medical records trom Defendant Gail Kelly, so that he
could bring a civil action tor the alleged negligent treatment
ot his injury. He claims that on March 17, 1994, hi. request
was denied by Defendant Kelly as per the orders of Defendant
Montag. He asserts that this denial has prevented him from
bringing a civil action naming those individuals responsible
for his alleged negligent t~eatment.
4. Prison officials are obligated to insure an inmate's
constitutional right of access to the courts by providing
either adequate law libraries or adequate assistance from
persons trained in the law. Bounds v. Smith, 430 U.S. 817, 97
S.ct. 1491 (1977).
5. Defendants' actions in denying plaintiff's request to providti
a complete copy of his medical records does not prevent him
trom filing a civil action for the alleged negligent treatment
of his knee injury.
6, Detendants' actions have in no way impeded or hindered
plaintiff's ability to seek redress for the alleged inadequate
treatment.
7. Defendants' actions have in no way abridged or violated
plaintiff's right to equal protection under the law.
8. Defendants' actions have in no way violated any rights
guaranteed by state law, regulation or the Pennsylvania
Constitution.
2
9. The information contained in plaintiff's medical record. i.
available to him through Department policy. plaintiff has
failed to avail himself of that opportunity, but has instead
requested a complete copy of his medical records,
10. The Commissioner of the Department of corrections has the
statutory authority to prescribe rules and regulation.
regarding the custody, use and preservation of the records
created in the administration of the Department, Section 506
of the Administrative Code of 1929, Act of April 9, 1929 (P,L.
177, No. 175), as amended; 71 P.S. S 186.
11. The Commissioner of corrections has promulgated such rules
governing the custody and release of inmate records.
12. The Court may take judicial notice of the Department's rules
on the release of records. Attached hereto as Exhibit A is
DC-ADM 003.
13. Defendants have acted in accordance with said rules in
responding to plaintiff's request for a photocopy of his
medical records.
3
.....ro.., in livht ot the torevoinv, the Court should sustain
detendants' preliminary objections and dismiss the oomplaint witb
prejudioe.
Respeottully submitted,
David B. Farney.
Assistant Counse
Attorney Identification No. 36801
Pa, Department ot Corrections
P. 0, Box 598, 2520 Lisburn Road
Camp Hill, Pennsylvania 17001-0598
(717) 975-4864
Dated I Auvust 15, 1994
, I
4
DC.ADM 003 ~...Inlltr.tl...e Dlrectln
COMMONWEALTH OF PENNSnVANL\
DBPARTlIIENT 01' CORRECTIONS
~
SubJlct:
RElJtA8E OF INFORMATION
*'
I. P11RP08B
Ills the polley of the Bureau of CorrecUon to cooperate wtth governmental agencies, representaUves
of the media. attorneys and other private citizens by proViding lnfonnaUon requested unless the re-
leasp. of the data Is restricted by law or would Impa,ct adversely upon an Interest which the Bureau
of Correction has a legitimate reason to protect. Described In this c!Jrectlve are the kinds oflnfonnatlon
the release of which are rellulred or prohibited by law or Bureau policy. The procedures described
herein have been established to Insure that release of Infonnatlon Is accomplished In WI orderly and
accountable manner.
D. CIUIIIIl'fAJ. IDSTORT RECORDS INFORMATION
A. Deflnltlon:
I. Criminal History Records InfonnaUon Is that data which results from the Inltlatlon of criminal
proceedings. including Idenllfiable descrtptlons. mugshots. dates and notations of arrests.
Indlctments.lnfonnatlon. other fonnal crtminal charges. sentence status reports. sentencing
orders. and any other documents concerning disposition of criminal charges.
2. 'rbe term does not Include intelligence. investigative. or treatment lnfonnatlon. the release of
which Is addressed In sections V and VI of this directive.
B. Release to Criminal Justice ~encles Mandatory:
Criminal History Records Information must be disseminated by the Bureau of Correction upon
request to w:Il( crlmlnaljustlce agency. The requestlng person or agency should be Infonned that
the Infonnatlon which the Bureau of Correction wlll release Is only that which Is In Its own files
and that a complete criminal history Is available from the Central Repository. the Pennsylvania
State Police. However. the Bureau of Correction may not decline to release the Criminal History
Record Information which Is In Its possession.
C. Release to Individuals and Non-Criminal Justice ~encles DIscretlollll()':
Requ...l~ indiViduals or non-criminal Justice agencies may be 'honored by the Bureau of Cor-
rectl~n~~erred to the Central Repository. Pennsylvania State Police.
CrImlnaI History Record Information which Is to be disseminated to a pel'SOn or agency which Is
not a crlmlnallustlce ~ncv. must be edited to exclude all notations of arrests. Indictments. or
other information relatlng to the lnltlatlon of cr\mlnaJ proceedinga where there Is a dispo$ltlon of
acquittal. charges are dismissed or wtthdrawn. a noUe proseque Is entered. the proceedings are
Indeflnltely postponed or the indiVIdual Is otherwise not found guilty of committlng an alleged
criminal act where three years have elapsed from the time of arrest and no proceedings are pending
seeking conviction or where no conViction has occurred.
The Bureau of Correction may require the person or non-criminal Justice agency requcsUng this
lnformaUon to pay for the costs :.Jf r roduction Incl Ing staff time.
EXHIBIT
I A
DC.ADM 003
D. l.Qfi1nf ~aul~m~nt5:
1. Mandat<mt: Each Ume Criminal History Record Information Is released. a notation must be
made In the me of the Inmate who Is the subject or the Information which waa released. The
notation must Include: a description or the Information released. the source of the Information.
method of release (eg. In writing or via telephone). to whom and the date the Information was
released. Forms should be designed to facilitate the orderly logging of this Information.
2. Purnose: The law requires this logging to Insure that if It Is ever discovered that there was an
error In the Criminal History Record Information which had been compUed with regard to any
person. any agency which has released Information wtll be able to noUfy those to whom the
lnformaUon waa released of the error.
3. Errors In Criminal Hlstorv Record Information: If It Is discovered that there Is an error In any
Criminal History Record Information which haa been disseminated. notice of the error must
be given to each individual and agency to whom the Information was disseminated. nus notice
Is to be given only when It Is discovered the Information disseminated Is Incorrect. ModIfi.
cation or vacation of sentences subsequent to dissemination Is not an error which requires
notice.
4. Information released from Central Office: When Criminal History Record Information Is re-
released by anyone In the Bureau or Correction Central Office. the records office at the insti-
tution where the Inmate Is conl1ned must be not1lled so that the release may be logged In the
JBC-llS.
IS. Information released from the institution where the sublect Inmate Is confined: Responsibility
for the release and logging of Criminal History Record Information should be delegated to one
person or to a. small group of persons to Insure that the disseminations are accurately logged.
6. Dissemination orCrimlna1 History which does not link a particular Inmate to a speclflc offerwe
or sentence leg. a list of all Inmates at a state correctional Institution who are from Philadelphia
County or. the number of Inmates who have received a death sentence) Is not governed by the
CrtmIna1 History Record Information Act and need not be logged.
m. PltB-8JUlTEKCZ Il'fVUnGATlON RJtPORTS
Pre.sentence Investigation Reports shall be released only as follows:
A. To a court,
B. To persons or agencies having a legitimate professlona\lnterest In the Information upon court
order.
IV. MATTERS or PUBUC UCORD
A. The Bureau of Correction must provide accelSlS for citizens of the Commonwealth to those docu-
ments In Its custody which are "public records" within the meaning of 6tI P.S. 66.1. et. seq. These
documents must be ava1lable for examination at reasonable times. Photocopying shall be permit-
ted at the expense of the person requesting the coptes.
B . A public record generally Is defined as:
1. Any Information dealing with the receipt or disbursement of funds by an agency or Its acqul.
sltion. use or disposal of services or of supplies, materials. equipment or other property. and
22
DC-ADM 003
,...
2. Any document which e~tabli~he~ the rtghta. privileges. or obligations of any person. group of
persons or agency.
C. However. the tenn public record does not Include:
I. information which would disclose the initiation. progre~~ or re~ult of an investigation under-
taken by an agency In the perfonnance of Ita official dutle~. or
2. Infonnatlon access to which I~governed by another section ofthi~ memorandum or otherwise
prohibited by law or court order.
3. Infonnatlon which would operate to prejudice or Impair a person'~ reputation or personal
security. or
4. Infonnatlon which would re~ult In the loss of federal funds by the Commonwealth. any of u~
political subdivisions or municipal authorities. or
5. Documenta which are not In final fonn. or
6. Documenta which are generated as a result of discussions and. therefore. do not contain final
decisions on a subject included In lV. B.
D. Detennlnatlon of what documenta are public records within the meaning of this section Is often
difficult. Questions IUI to interpretation shall be referred to the Office of the Chief Counsel for reso-
lution.
V. TRJ:ATllENT INJ'ORMATlON
A. All treatment records In the cu~tody of the Bureau of Correction are the property of the Bureau
of Correction. and not of the subject Inmate. There are clUleswhere Inmates. their representatives
or others have a legltlmate need for access to these documenta. In those cases the need for access
to the documenta shall be balanced against the Interesta of the Bureau to keep the documents
confldenUal.
B. No treatment Infonnatlon. including medical and mental health data. shall be released outside
the agency unless the release Is authorized In writing by the person who Is the subject of the in-
formation. ordered by a court. approved by the Commlssloner of Correction or his designee. re-
quested by an attorney representing the Bureau of Correction. the parole board ualatlng with
a parole plan. or persona who are providing health care to the subject Inmate at Bureau of Cor-
rection or county expellle. A fonn appropriate for that purpose Is attached (Appendix 11). The au-
thorization forma will be retained In the health record with notation of what speclflc Infonnatlon
WIllI rel-- I the date of release and the signature of the IndMdual who released the information.
Autho. :~. It by the subject Inmate does not automatically require release.
~':. -
Ortglnal he.1th recorda shall not be released from the custody of the agency except to an attorney
representing the Bureau of Correction or pursuant to court order.
C. Medical Records:
I. Access by the Sul)Ject Inmate: Inmates may discuSll their own medical records with treatment
staff. The Inmate Is not permitted to possess the originals or copies of these records except as
provided In Section V.E. of this directive.
23
DC-ADM 003
2. MC~SS by ~rson5 oth~r than the. sublect lnrnat~:
a.. An attornev reoresentinll the sublect Inmate: Subject to the provisions of VII of this directive.
the attorney or someone authorized by him may:
(I) come to the institution. review the records and make notes: or.
(21 upon approval of the Supertntendent or his designee. obtain a copy of the records by
designating specifically what he wishes to review. executing a fonn by which he agrees
that he will not pennlt his client to obta1n from him a copy of any material provided. and
paying the cosL, of reproduction. (Appendix I)
b. Treatment Dt!rsonnel or facilities out.lde of the institution and or"anlzations to which the
Inmate has aoolled for benefits:
(1) Physicians and treatment facUlties. which are providing treatment to an Inmate after his
release from custody may request copies of the Inmate's medical records. Whenever prac.
tical. this request should be In writing. Copies of the medical records shall be provided
free of charge to the physician or facility.
(2) Reque.ts from an agency assisting with a parole plan may be treated similarly.
(31 Additionally. copies of relevant medical records should be fOlWarded upon wrttten reo
quest to organizations such as the Social Security or Veterans' AdmlnJstration. to which
the Inmate has applied for benefits.
(4) Any records released pursuant to this section shall be marked with a statement that these
records are the property of the Bureau of Correction. are released for limited purpose.
and are not to be given to the subject Inmate.
c. Information released under this section (V.C.2.) may be limited to information required to ful-
fill the stated purpose of the request.
D. Mental Health Record.:
I. Access bv the Inmate or his attorney: Inmates may discuss any facet of their mental health
treatment with treatment staff. However. neither the Inmate nor his attorney shall be permlt.
ted to review or to have copies orany of his mental health records unless producUon Is pur-
suant to court order or requested by an attorney representing the Bureau of Correction.
2. Leiltlmale Treatment personnel or facilities outside of the Institution and orianlzaUons to
which the Inmate has appll"d for benefit,: Copies of mental health records shall be provided
to these persons or organizations upon request. The records released shall be marked to In-
dicate that these records are considered confidential and must not be released to the Inmate.
Information released under this section (V.D.2.) may be Umlled to information required to ful-
IllI the stated purpose of the request.
E. Release of health records durlnll th" course of lIt1l1atlon: The InsUtuUon shall provide originals or
copies of records whenever directed to do so by court order or by an attorney who is representing
the Bureau ofCorrecUon or Its employees. When. under these circumstances. the copies of health
records are released directly to the Inmate. the documents shall be marked to show that he has
obtained the documents through legitimate means.
24