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HomeMy WebLinkAbout2010-552 WILLIAM MCLAUGHLIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : TERESA LAW, AND : BARRY BEAVEN, : DEFENDANTS : NO. 10-552 CIVIL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Ebert, J, November 19, 2010 - This opinion is written pursuant to Pa. R.A.P. 1925(a). Plaintiff has filed a Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925(b) and 1 appeals on the following grounds: 1. The lower court erred in failing to extend lenient consideration to pro se Plaintiff’s efforts in obtaining a medical Certificate of Merit; 2. The lower court erred in failing to provide Appellant due process of law, and direct Appellant be provided necessary medical records to obtain Certificate of Merit; 3. The lower court erred in failing to direct that pro se incarcerated Plaintiff be transported to Dr. Sullivan for examination relevant to his Certificate of Merit; 4. The lower court erred in failing to conduct a pre-trial hearing/conference, where Dr. Sullivan would provide Certificate of Merit via in-court testimony; 5. The lower court erred in failing to construe pro se Plaintiff’s motion for medical records from Dr. Sullivan as a Rule 4009.1 thru 27 Subpoena of Documents; 6. The lower court erred in failing to provide pro se incarcerated Plaintiffs opportunity and/or due process of law in prosecuting medical complaints/claims. Procedural History The procedural history in this case shows that Plaintiff has repeatedly asked this Court for extensions or exceptions to procedural requirements. Plaintiff has been 1 Concise Statement of Matters Complained of on Appeal, filed Oct. 7, 2010. 1 granted significant time and opportunity to comply with the required procedures, but has still failed to file a Certificate of Merit. Plaintiff filed a complaint on January 25, 2010. Defendant Teresa Law, as a Commonwealth Defendant, filed Preliminary Objections to Plaintiff’s Complaint on February 24, 2010. On March 9, 2010, Defendant Law filed a Notice of Intention to Enter Judgment of Non Pros for failure to file Certificate of Merit. On March 15, 2010, Plaintiff filed a Motion for Extension of Time for Plaintiff to File Reply to Defendants’ Preliminary Objections, which this Court granted on March 18, 2010. On March 22, 2010, Plaintiff filed a Motion to Extend Filing of Certificate of Merit. By Order of March 29, 2010, this Court directed Plaintiff to file his Certificate of Merit on or before April 30, 2010, and that a Non Pros should not be entered until May 3, 2010, should the Plaintiff fail to file the Certificate of Merit. Defendant Beaven filed a Praecipe to Enter Judgment of Non Pros Pursuant to Pa. R.C.P. No. 1042.7, and Notice of Entry of Judgment of Non Pros was entered by the Cumberland County Prothonotary on May 3, 2010. On June 24, 2010, the Court issued an Order striking the May 3, 2010, Judgment of Non Pros as premature because Plaintiff’s Motion for Exception to Certificate of Merit Pending Discovery Due to Extraordinary Circumstances filed April 13, 2010, was still pending before the Court. The June 24, 2010, Order granted Plaintiff until August 23, 2010, to file the Certificate of Merit, and stated that no further extensions of time would be granted. On July 22, 2010, Plaintiff filed a Motion for Discovery of Medical Records to Assist Plaintiff in Obtaining Certificate of Merit, which this Court denied on August 5, 2010. A second Entry of Non Pros was entered against Plaintiff on August 24, 2010. On September 7, 2010, Plaintiff 2 filed a Motion to Strike Judgment of Non Pros and at the same time filed a Notice of Appeal from the Judgment of Non Pros along with a Motion for Leave for Plaintiff to Proceed in Forma Pauperis on Appeal. Statement of Facts Plaintiff is William McLaughlin, pro se, who is currently incarcerated at the State 2 Correctional Institution at Rockview in Bellefonte, Pennsylvania. In August 2008, 3 Plaintiff was an inmate at SCI-Camp Hill in Cumberland County, Pennsylvania. Plaintiff alleges that in August 2008 he injured his knee while exercising in the prison yard. Plaintiff went to the prison infirmary, where the attending physician examined Plaintiff’s knee and suggested that Plaintiff may have ruptured his quadriceps, and that Plaintiff 4 required surgery. That same day, Plaintiff was taken to Holy Spirit Hospital and alleges that the attending emergency room physician confirmed that Plaintiff had ruptured his 5 quadriceps and that immediate surgery was necessary. Plaintiff alleges that correction officers prohibited him from having the surgery that day, and he was instead returned to 6 SCI-Camp Hill. In September 2008, Plaintiff was taken from SCI-Camp Hill to 7 Memorial Hospital in York, Pennsylvania, were an M.R.I. was taken of Plaintiff’s injury. In October 2008, Plaintiff was taken to Dr. Sullivan in York, Pennsylvania. Plaintiff again claims that he was not permitted to have the surgery, and he was returned to SCI- 8 Camp Hill. In November 2008, Plaintiff had surgery at Memorial Hospital in York, 2 Plaintiff’s Complaint, filed Jan. 25, 2010. 3 Pl. Compl. at ¶ 5. 4 Pl. Compl. at ¶ 8. 5 Pl. Compl. at ¶ 10. 6 Pl. Compl. at ¶ 13. 7 Pl. Compl. at ¶ 16. 8 Pl. Compl. at ¶ 23. 3 9 Pennsylvania, performed by Dr. Sullivan. Plaintiff had a follow-up examination in 10 January 2009. Plaintiff claims that on June 22, 2009, and October 1, 2009, he experienced pain and swelling in his knee and visited the medical facility at SCI- 11 Rockview. Plaintiff claims that Dr. Sullivan advised him post-surgery that the ruptured quadriceps could not be repositioned and that this could cause at least a 50 percent 12 limitation of the injured leg. Plaintiff’s claims against the Defendants are based on Plaintiff’s belief that Defendants prevented him from having immediate surgery, and that delay in surgery prevented full recovery of his knee injury. Discussion Plaintiff’s appeal is based on his belief that he was denied due process of law because of his incarceration and because of his status as a pro se plaintiff. However, as discussed below, Plaintiff had access to court procedures available to any other litigant, and his status as a pro se plaintiff or as an incarcerated individual had no bearing on his failure to file the appropriate documents. I. Failure to File Certificate of Merit A judgment of Non Pros was entered against Plaintiff for his failure to file a Certificate of Merit as required by Pa. R.C.P. No. 1042.3 for all professional liability claims. In numerous filings with this Court, Plaintiff has requested a suspension of the rule, an extension for filing, requested assistance from this Court in requiring that documents be provided to him that would aid in his obtaining the Certificate of Merit, 9 Pl. Compl. at ¶ 25. 10 Pl. Compl. at ¶ 31-32. 11 Pl. Compl. at ¶ 35, 37. 12 Pl. Compl. at ¶ 44-45. 4 and requested that testimony be accepted in lieu of a written Certificate of Merit as required by the rule. A Certificate of Merit is a confirmation that: an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, ... Pa. R.C.P. No. 1042.3(a)(1). A. This Court was not responsible for ordering Plaintiff’s medical records. Plaintiff appeals in part because the Court denied his request to have the Court order Defendants to provide Plaintiff with his medical records in order to assist him in obtaining a Certificate of Merit. Denial of Plaintiff’s request was proper, as the proper avenue for obtaining his medical records was to subpoena the appropriate non-party to the suit, not to involve the Court. Plaintiff’s argument is misplaced and Plaintiff is misconstruing Rules 1042.3 and 1042.5. Plaintiff basically argues that his request to have the Court order Defendants to provide his medical records was done under 1042.5, which provides that the Court shall allow discovery necessary to determine whether Defendants deviated from the standard of care. Rule 1042.5 clearly states that: Except for the production of documents and things or the entry upon property for inspection and other purposes, a plaintiff who has asserted a professional liability claim may not, without leave of court, seek any discovery with respect to that claim prior to the filing of a certificate of merit. Note: Upon motion seeking leave of court, the court shall allow any discovery which is required for a licensed professional to make a determination as to whether a defendant deviated from accepted professional standards. Pa. R.C.P. No. 1042.5. 5 Plaintiff did not need leave of court to request “production of documents and things.” Clearly, Plaintiff’s own medical records are documents and the proper procedure for obtaining such discovery is outlined in Pa. R.C.P. 4009.1, Production of Documents and Things, and, specifically, Pa. R.C.P. 4009.21, Subpoena Upon a Person Not a Party for Production of Documents and Things. Plaintiff has had ample opportunity and time to acquire his own medical records, and the Court had no obligation to order the medical records for him before he initiated any kind of procedure to acquire them on his own. B. The Court should not have construed Plaintiff’s Motion as a Subpoena. Plaintiff also argues that the Court erred because it failed to construe his Motion for Discovery of Medical Records to Assist Plaintiff in Obtaining Certificate of Merit as a subpoena. This Court was under no obligation to construe his Motion as a subpoena, and certainly would not have done so if filed by counsel under any other circumstances. The Pennsylvania Commonwealth Court has stated that A court must remain neutral and cannot act as the attorney for pro se litigants or be responsible for bringing a litigant’s suit into compliance with the rules of civil procedure. As the trial court in this matter aptly noted, the burden to comply with all procedural rules lies with the plaintiff who chose to initiate the suit, pro se. Fraisar v. Gillis, 892 A.2d 74, 76-77 (Pa.Cmwlth. 2006). The Pennsylvania Superior Court has made it clear that a pro se litigant is not afforded special consideration. In Rich v. Acrivos, the Court stated that While this court is willing to liberally construe materials filed by a pro se litigant, we note that appellant is not entitled to any particular advantage because she lacks legal training. (quoting O'Neill v. Checker Motors Corp., 567 A.2d 680, 682 (Pa. Super. 1989). Further, “any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, 6 assume the risk that his lack of expertise and legal training will prove his undoing.” (quoting Vann v. Com., Unemployment Compensation Board of Review, 494 A.2d 1081, 1086 (1985). Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa. Super. 2003). While the Court may liberally construe materials, it is not appropriate to give Plaintiff the advantage of avoiding the proper procedure of serving a subpoena in order to obtain his medical records. This Court should not have interpreted Plaintiff’s Motion as a subpoena, which is far beyond simply a liberal interpretation. Such a request is effectively asking the Court to act as counsel to complete tasks that were Plaintiff’s responsibility. Plaintiff presents no evidence that he ever attempted to obtain his medical records. Dr. Sullivan’s letter of March 31, 2010, informed Plaintiff that “Prison Health Services in Brentwood, TN has a copy of your medical records regarding treatment at our facility” and Plaintiff could have contacted Prison Health Services and simply asked for a copy of his own records. If they did not comply with the request, Plaintiff could have subpoenaed the records from Prison Health Services. This was the proper procedure for Plaintiff to obtain his own medical records. Instead, Plaintiff improperly requested that the Court order Defendants to provide Plaintiff with his medical records. C. The Court was not obligated to show Plaintiff any further leniency. Plaintiff misinterprets the reasons for extension allowed by Rule 1042.3 and mistakenly asks the Court for exceptions which are not provided for in the rule. According to the rule, extensions are allowed for “good cause shown,” and there is no discretion given to the Court to suspend the rule under any circumstances or to take testimony in lieu of a written Certificate of Merit as requested by Plaintiff. 7 The Pennsylvania Superior Court discusses the purpose of the filing of a Certificate of Merit below: The law requires only that the failure [to file the certificate] be accompanied by a reasonable explanation or a legitimate excuse. Keeping in mind that the opening of a judgment is an appeal to the equitable powers of the court, ... The purpose of requiring a certificate of merit is to help eliminate frivolous claims of professional negligence and, possibly, to help hasten the prosecution of the same. Another recognized purpose of the rule can be found in Speicher v. Toshok, 63 Pa. D. & C.4th 435, 443 (2003), where it was stated that “the purpose of these rules is to minimize the costs of defense and the time that a licensed professional must devote to the litigation until the plaintiff has been able to secure a certificate of merit.” Almes v. Burket , 881 A.2d 861, 866 (Pa.Super. 2005). Pennsylvania courts have certainly recognized that there are times when a Plaintiff has a legitimate and reasonable excuse for failing to file a Certificate of Merit. See Almes v. Burket, supra (excuse for failure to file a Certificate of Merit was reasonable when attorney’s mother-in-law’s serious illness and subsequent death three days before Christmas and near the time the filing was due). See also Estate of Aranda v. Amrick, 987 A.2d 727 (Pa. Super. 2009) (appellant’s excuse reasonable when failure was oversight by appellant’s counsel who had properly filed 14 of the 15 required Certificates of Merit). Plaintiff in this case has presented no excuses other than (1) that he is incarcerated, (2) that he has contacted various doctors but none has been willing to provide a Certificate of Merit, and (3) that he is unskilled in the profession of law. Nevertheless, this Court has repeatedly given significant latitude to Plaintiff in allowing for numerous extensions. Plaintiff has still failed to present any good cause in his latest Motion to Strike Judgment of Non Pros. 8 The Court’s eventual denial of continued extensions of the time for filing Certificate of Merit, and further denial of Plaintiff’s Motion to Strike Judgment of Non Pros is in accordance with the precise purpose of Rule 1042.3. Plaintiff admits that numerous attorneys have failed to take his case, which further suggests that Plaintiff’s claim is without merit. Plaintiff has not shown that he has taken any steps to obtain his medical records on his own, and seems to think that doctors are trying to circumvent his efforts when they require medical records in order to provide a Certificate of Merit. Being pro se does not afford Plaintiff any special consideration or leniency. Plaintiff cannot fail to take necessary steps to advance his case and then claim that he has been denied due process of law. He first must take the proper steps, all of which have been available to him as a pro se Plaintiff. Furthermore, this Court was under no obligation to order Plaintiff to be examined by Dr. Sullivan for the purposes of obtaining a Certificate of Merit. Again, obtaining the Certificate of Merit is Plaintiff’s responsibility and he had access to procedures that allowed him to serve a subpoena for his medical records. Clearly, Plaintiff had the means to carry out other legal procedures as evidenced by his numerous motions and other filings. His status as a pro se litigant or as an incarcerated person had no bearing on his access or ability to follow the proper procedures. Conclusion Plaintiff has made continued use of the legal system to file requests for exceptions and extensions to the appropriate procedures required to advance his case, yet he claims to have been denied due process of law because he is an incarcerated 9 pro se litigant. He chose to initiate and continue his case pro se because he cannot find an attorney who will represent him. This Court has repeatedly given Plaintiff the opportunity and time to comply with the required procedures, yet he has continued to fail to do so. The Court is not obligated to make special allowances for a pro se litigant, and to grant the types of requests Plaintiff has requested throughout this lawsuit would have been unfair and error. This Court has properly handled each request presented to it by Plaintiff, and has not denied Plaintiff due process of law in any way. By the Court, M. L. Ebert, Jr., J. William McLaughlin Plaintiff, pro se SCI-Rockview Box A Bellefonte, PA 16823 Steven C. Gould, Esquire Attorney for Defendant Craig Stone, Esquire Attorney for Defendant 10