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HomeMy WebLinkAbout94-6724 CivilPAUL BALLOD, Plaintiff Ve DEPARTMENT OF CORRECTIONS; JOHN ZAVAKI, M.D.; CARL HOFFMAN, D.O.; JOHN LESNIEWSKI, M.D.; MUHAIL KONDASH, M.D.; and HERBERT FELLERMAN, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-6724 CIVIL TERM IN RE: MOTION OF DEFENDANTS HOFFMAN AND LESNIEWSKI FOR SUMMARY JUDGMENT; MOTION OF DEFENDANTS ZAVAKI AND FELLERMAN FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., and OLER, J. _ QRD__E~ OF COURT AND NOW, this '~~day of A~gu~tI ~996, upon consideration of the motions for summary judgment filed on behalf of Defendants Hoffman and Lesniewski and on behalf of Defendants Zavaki and Fellerman, and ~or the reasons stated in the accompanying opinion, the motion of Defendants Hoffman and Lesniewski is GRANTED and the motion of Defendants Zavaki and Fellerman is DENIED. BY THE COURT, Paul Balled, AM-2502 State Correctional Institution at Dallas Drawer K, I-Block Dallas, PA 18612-0286 Plaintiff, Pro Se G. Michael Thiel, Esq. Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 Attorney for Commonwealth of Pennsylvania, Department of Corrections Fred T. Howe, Esq. Suite 700 - Mellon Bank Center 8 West Market Street Wilkes-Barre, PA 18701-1867 Attorney for Defendants Zavaki and Fellerman Jack M. Hartman, Esq. One Keystone Plaza, Suite 107 Front and Market Streets P.O. Box 786 Harrisburg, PA 17108-0786 Attorney for Defendants Hoffman and Lesniewski Richard B. Wickersham, Esq. 315 North Front Street P.O. Box 741 Harrisburg, PA~17108-0741 Attorney for Defendant Kondash : rc PAUL BALLOD, Plaintiff Vo DEPARTMENT OF CORRECTIONS; JOHN ZAVAKI, M.D.; CARL HOFFMAN, D.O.; JOHN LESNIEWSKI, M.D.; MUHAIL KONDASH, M.D.; and HERBERT FELLERMAN, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-6724 CIVIL TERM IN RE: MOTION OF DEFENDANTS HOFFMAN AND LESNIEWSKI FOR SUMMARY JUDGMENT; MOTION OF DEFENDANTS ZAVAKI AND FELLERMAN FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., and OLER, J. OPINION and ORDER OF COURT Oler, J. In this civil case a state prisoner has sued various parties for medical malpractice and constitutional~rights, inter alia. are motions for summary judgment defendants. related violations of his For disposition at this time filed on behalf of several For the reasons stated in this opinion, the motion filed on behalf of two of the defendants will be granted, and the motion filed on behalf of two other defendants will be denied. STATEMENT OF FACTS This action was commenced by the filing of a complaint on November 28, 1994, by Plaintiff Paul Ballod.~ Plaintiff is an inmate who allegedly received medical treatment while incarcerated at the State Correctional Institution at Dallas, Pennsylvania; he is proceeding pro se in this case. Among the Defendants are Plaintiff's complaint, paragraph 1. NO. 94-6724 CIVIL TERM Doctors Carl Hoffman, John Lesniewski, John Zavaki, and Herbert Fellerman; they allegedly provided medical care to Plaintiff.2 Plaintiff asserts three causes of action against these defendants, summarized in his complaint as follows: The above doctors have not used the proper degree of skill and care of their professions and have not used the judgment of a reasonable man under like circumstances and were negligent for which I ask for unliquidated compensatory damages.3 Ail of the above doctors have violated my 8th Amendment right under the United States Constitution to be free from cruel and unusual punishment also, my Article 1 §13 Pennsylvania Constitutional right for which I ask for compensatory damages in the amount of twenty thousand $20,000 dollars.4 Ail of the above doctors violated my substantive due process right under the 14th Amendment to the United States Constitution to be informed of the treatment and viable alternatives for which I ask for compensatory damages in the amount of five thousand $5,000 dollars,s Plaintiff alleges that Defendant Zavaki improperly treated his psoriasis and adrenal insufficiency during his incarceration, causing Plaintiff to develop stretch marks.6 Plaintiff alleges Id. at paragraphs 2-4, 6. Id. at paragraph 51. Id. at paragraph 52. Id. at paragraph 53. Id. at paragraphs 7-8. 2 NO. 94-6724 CIVIL TERM that Defendants Fellerman, Hoffman and Lesniewski's treatment of my psoriasis and adrenal insufficiency aggravated my preexisting stretch marks and caused new ones and caused scars to my skin from wounds, caused my easy bruising and hemorrhages and skin atrophy, caused unipolar depression, muscle wasting. [sic] arteriosclerosis, osteoporosis, hypertension, skin discoloration, obesity, carbohydrate intolerance, liver enzyme damage, endocrine system dysfunction, irregular heartbeat, disfigurement and damage to my immune system, which are all permanent in nature.7 Plaintiff alleges that another defendant, the Pennsylvania Department of Corrections, is responsible for his medical care while he is in custody and that Defendants Hoffman, Lesniewski, Zavaki and Fellerman are or were employees or agents of the Department.8 Plaintiff further alleges that the said doctors failed to monitor his treatment,9 failed to keep proper records,~° failed to warn him of the consequences of the treatment,~ failed to make a proper diagnosis,~2 failed to inform him as to alternative Id. at paragraph 50. Id. at paragraphs 1-4, 6. Id. at paragraphs 10, 24, 36. Id. at paragraphs 13, 27, 39, 47. Id. at paragraphs 11, 25, 37. Id. at paragraphs 14, 16, 19, 31, 45. 3 NO. 94-6724 CIVIL TERM treatment,~3 thereby increasing the risk of future injuries,TM and abandoned his case.~5 On May 2, 1996, the Honorable Kevin A. Hess of this court issued an order in response to a motion for sanctions filed on behalf of Defendants Hoffman and Lesniewski.~ The order precluded Plaintiff from introducing or presenting expert witness testimony against these defendants at trial. Because Plaintiff cannot produce expert testimony against them, Defendants Hoffman and Lesniewski request entry of summary judgment in their favor.~? On June 21, 1995, Judge Hess issued an order directing Plaintiff to file full, complete and responsive answers to Expert Witness Interrogatories propounded by Defendants Zavaki and Id. at paragraphs 26, 38. Id. at paragraph 12. Id. at paragraphs 15, 29, 41. This order of court read as follows: AND NOW, this 2nd day of May, 1996, this matter having been called for argument on the record, the within motion for sanctions is granted, and the plaintiff is precluded from introducing or presenting expert testimony against Dr. Hoffman and Dr. Lesniewski. Counsel fees are awarded in favor of said defendant and against the plaintiff in the amount of $500.00. ~7 See Motion for Summary Judgment by Defendants, Carl Hoffman, D.O. and John Lesniewski, D.O. NO. 94-6724 CIVIL TERM Fellerman.~8 Defendants had asked to be informed of the identities of experts whom Plaintiff expected to call at trial and the subject matter of the testimony of each. Defendants also requested Plaintiff to provide them with the substance of the facts and opinion as to which each expert was expected to testify, a summary of the grounds for each opinion held by a given expert, and background information on each expert.~9 According to Defendants, Plaintiff eventually provided answers The order of court read as follows: AND NOW, this 21st day of June, 1995, at 2:30 P.M., upon consideration of Defendants Herbert Fellerman, M.D. and John Zavaki, M.D.%s Motion to Compel Answers to Expert Witness Interrogatories, it is hereby ORDERED AND DECREED that the Plaintiff shall file full, complete and responsive answers to Defendants' Expert Witness Interrogatories, specifically identifying each expert witness expected to testify at trial, the subject matter, the substance of the facts and opinions to which expert is expected to testify and [a] summary of the grounds for each opinion, within ninety (90) days, or suffer the imposition of sanctions, upon a separate motion, which will preclude the Plaintiff from offering into evidence any of the information requested in the Interrogatories and, specifically, prohibiting and precluding the Plaintiff from offering any Expert Witness testimony against Defendants, HERBERT FELLERMAN, M.D. and JOHN ZAVAKI, M.D., at the time of trial. ~ See Defendants, Herbert Fellerman, M.D. and John Zavacki, M.D's Motion to Compel Plaintiff to Answer Discovery, at paragraph 3. 5 NO. 94-6724 CIVIL TERM to the interrogatories.2° Plaintiff's response to the Expert Witness Interrogatories was said to be as follows: I have been unable to obtain an expert because I cannot pay the fees nor have I been able to get one on a contingency basis due to my incarceration. I cannot see any doctors except those the Department of Corrections lets me see. But if I cannot obtain an expert before trial, I expect to call Drs. Fellerman, Kondash; Hoffman; Lesniewski; and Zavaki as expert witness and their opinions will be their answers to my discovery request. I will supplement this interrogatory pursuant to the Pennsylvania Rules of Civil Procedure.2~ Defendants Zavaki and Fellerman contend, as do Defendants Hoffman and Lesniewski, that Pennsylvania law requires medical malpractice plaintiffs to provide expert testimony at trial to demonstrate that the alleged conduct of defendants fell below the appropriate standard of care,22 and that the Plaintiff will be unable to establish negligence or causation with respect to them without expert witness testimony.~3 Defendants Zavaki and Fellerman further contend that summary judgment is now appropriate because, in the absence of expert witness testimony on behalf of the Plaintiff to establish negligence and causation (such absence being implied by his interrogatory answer), there is no genuine issue of 20 See Motion for Summary Judgment on Behalf of Defendant Drs. Zavaki and Fellerman, at paragraph 8. See id. Id. at paragraph 9. Id. at paragraph 10. 6 NO. 94-6724 CIVIL TERM material fact to be decided.24 DISCUSSION Summary judqment in general. Pennsylvania Rule of Civil Procedure 1035.2 provides, with respect to summary judgment, as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Traditionally, "an entry of summary judgment may be granted only in cases where the right is clear and free of doubt." Demmler v. Smithkline Beecham Corp., Pa. Super. __, __, 671 A.2d 1151, 1153 (1996), citing Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). When considering whether summary judgment is proper, a court must examine the record in the light most favorable to the non-moving party, with all Id. at paragraph 11. NO. 94-6724 CIVIL TERM doubts resolved against the moving party. Demmler v. Smithkline Beecham Corp., Pa. Super. , __, 671A.2d 1151, 1153 (1996), citing Denlinger, Inc. v. Dendler, 415 Pa. Super. 164, 170, 608 A.2d 1061, 1064 (1992). Necessity for expert testimony. The general rule under Pennsylvania law in a medical negligence case is that "a plaintiff cannot establish a prima facie case of malpractice without, inter alia, presenting an expert witness who will testify, to a reasonable degree of medical certainty that the acts of the [defendant] physician deviated from good and acceptable medical standards." Maurer v. The Trustees of The University of Pennsylvania, 418 Pa. Super. 510, 516, 614 A.2d 754, 757 (1992), citing Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 892 (1990); see also Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980) (plaintiff must introduce expert testimony to show defendant's conduct varied from "acceptable medical practice"); Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 509, 559 A.2d 550, 552 (1989), appeal denied, 527 Pa. 635, 592 A.2d 1302 (1990) (expert testimony required to establish "standard of reasonable medical care"); Brophy v. Brizuela, 358 Pa. Super. 400, 405-06, 517 A.2d 1293, 1296 (1986) (expert testimony required NO. 94-6724 CIVIL TERM to establish "standard of care" and deviation therefrom).2s Motion for Summary Judqment of Defendants Hoffman and Lesniewski. In their Brief in Support of Motion for Summary Judgment, Defendants Hoffman and Lesniewksi contend that, since Plaintiff has been expressly precluded by this court from introducing an expert witness at trial, they are entitled to summary judgment as a matter of law.26 A similar issue was addressed in 1995 by Judge Hess in another case brought by the Plaintiff, Ballod v. Dept. of Corrections, 44 Cumberland L.J. 336 (1995); Judge Hess's opinion was subsequently approved by the Commonwealth Court.27 In Judge Hess's case, summary judgment was granted in favor of a defendant in a malpractice action where Plaintiff had been expressly ordered to file an expert report or suffer such a result, and failed to file a report. Id. Based upon Judge Hess's holding in this earlier case, and having examined the record herein in the light most favorable to the Plaintiff, the court believes that summary judgment is 2s There is an exception to the general rule. Expert evidence is not required where the matter in dispute is so simple and the lack of skill or want of care so obvious as to be comprehensible by lay persons. Brophy v. Bruizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986). The side effects of treatments regarding psoriasis and adrenal insufficiency are clearly beyond the purview of laypersons, so that the exception is inapplicable here. ~6 See Brief in Support of Motion for Summary Judgment by Defendants, Carl Hoffman, D.O. and John Lesniewski, D.O. ~ Ballod v. Dept. of Corrections, 676 A.2d 1333, 1334 (1996). Pa. Commw. 9 NO. 94-6724 CIVIL TERM appropriate as to Plaintiff's claims against Defendants Hoffman and Lesniewski. As noted previously, the record reveals that sanctions have been imposed against the Plaintiff pursuant to Rule 4003.5 of the Pennsylvania Rules of Civil Procedure. The order precludes Plaintiff from presenting expert testimony at trial, which is tantamount to a dismissal of the action, and summary judgment is thus appropriate as a matter of law. Steinfurth v. LaManna, 404 Pa. Super. 384, 388, 590 A.2d 1286, 1288 (1991).28 Motion for Summary Judgment of Defendants Zavaki and Fellerman. In their Motion for Summary Judgment, Defendants Zavaki and Fellerman contend that in the absence of expert testimony Plaintiff will be unable to establish negligence and causation,29 and that due to this critical omission summary judgment is warranted. Examining the record in the light most favorable to the Plaintiff, the court believes that summary judgment is inappropriate as to these Defendants. A review of the record 28 Plaintiff's claims of a constitutional nature are substantially inseparable from his malpractice claim and must be considered equally susceptible to Defendants' motion under the present circumstances. In addition, as a general rule simple medical malpractice has not been held to represent an 8th or 14th amendment violation of an inmate's rights. See Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 261-62 (1976); Durmer v. O'Carroll, 991 F.2d 64, 67 (3rd Cir. 1993). 29 See Motion for Summary Judgment on Behalf of Defendant Drs. Zavaki and Fellerman, at paragraphs 10-11. 10 NO. 94-6724 CIVIL TERM reveals that, in contradistinction to the situation involving Defendants Hoffman and Lesniewski, the Plaintiff has not yet been expressly precluded from presenting expert testimony at the time of trial as to the moving parties. Therefore, the court cannot say with the same certainty that the right of Defendants Zavaki and Fellerman to summary judgment is "clear and free from doubt." Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 16th day of August, 1996, upon consideration of the motions for summary judgment filed on behalf of Defendants Hoffman and Lesniewski and on behalf of Defendants Zavaki and Fellerman, and for the reasons stated in the accompanying opinion, the motion of Defendants Hoffman and Lesniewski is GRANTED and the motion of Defendants Zavaki and Fellerman is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Paul Ballod, AM-2502 State Correctional Institution at Dallas Drawer K, I-Block Dallas, PA 18612-0286 Plaintiff, Pro Se 11 NO. 94-6724 CIVIL TERM G. Michael Thiel, Esq. Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 Attorney for Commonwealth of Pennsylvania, Department of Corrections Fred T. Howe, Esq. Suite 700 - Mellon Bank Center 8 West Market Street Wilkes-Barre, PA 18701-1867 Attorney for Defendants Zavaki and Fellerman Jack M. Hartman, Esq. One Keystone Plaza, Suite 107 Front and Market Streets P.O. Box 786 Harrisburg, PA 17108-0786 Attorney for Defendants Hoffman and Lesniewski Richard B. Wick'ersham, Esq. 315 North Front Street P.O. Box 741 Harrisburg, PA 17108-0741 Attorney for Defendant Kondash : rc 12