Parker v. Correctional Care, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JACQUELYN PARKER, :

Plaintiff, : CIVIL ACTION NO. 3:20-427

v. : (JUDGE MANNION)

CORRECTIONAL CARE, INC., et :

al.,

:

Defendants.

MEMORANDUM

Presently before the court is defendants’ motion for summary

judgment. (Doc. 36). The defendants filed a Statement of Material Facts,

(Doc. 39), and a brief in support of their motion, (Doc. 40). The plaintiff filed

a brief in opposition, (Doc. 46). Then, the defendants filed a reply brief, (Doc.

48). The matter is now ripe for disposition.

I. BACKGROUND1

On May 24, 2018, Jacquelyn Parker (“Parker”) committed herself to a

rehabilitation center, Just Believe Recovery Center of Carbondale (“Just

Believe”). When Parker entered Just Believe, she was given a pregnancy

1 The facts set forth herein are derived from defendants’ Statement of

Material Facts, (Doc. 39), and plaintiff’s Answer to the Statement of Facts,

(Doc. 47).

test, which returned a negative result. At Just Believe, Parker was prescribed

psychotropic medication, which could alter her menstrual cycle. Parker

stated that she last had sexual intercourse approximately two weeks prior to

entering Just Believe. After exiting Just Believe, Parking was committed to

Lackawanna County Prison on June 14, 2018. Upon entering the prison,

Nurse Ruth Coulthard received a medical history and initial screening from

plaintiff. Parker stated she was not pregnant and that her last menstrual

period was June 7, 2018. Parker was not given a pregnancy test by any

medical staff upon entry into the prison.

On June 22, 2018, Parker went to the Prison medical department for

“c/o abnormal bleeding patterns. States for 2 wks she had been bleeding off

& on like a normal period. She feels cramping in vaginal area. Told I/m to

save pads & show us.” (Doc. 47, ¶16). Over the telephone, Dr. Zaloga

prescribed Motrin for pain and pads for five days. Dr. Zaloga did not order a

pregnancy test. While the medical sheet says to save the pads and show

them to medical, Parker insists she was never informed to save the pads and

show them to medical.

After the consultation on June 22, 2018, plaintiff explains that she

communicated to the nursing staff working the medical cart that she was in

severe pain almost every time she encountered them. Plaintiff states that

she told them about her bleeding, pain in her stomach, vagina, and legs.

From June 22, 2018 until July 19, 2018, plaintiff claims she submitted

medical call slips and placed them in the request box four to five times per

week. She even complained to the nursing staff about not being seen by

medical and was told to keep putting request slips in. According to

defendants, Dr. Zaloga and Nurse Practitioner Anthony Iannuzzi were

unaware of any complaints between June 22, 2018 until July 19, 2018.

On July 19, 2018, Parker was seen by medical after reporting vomiting

for three days and pain in her right side that was tender to the touch

according to CCI nurse Wombacker. Parker was administered a pregnancy

test, which came back positive, and a urine test, which came back positive

for a urinary track infection (“UTI”). Parker was placed on pregnancy

restrictions, given prenatal medications, and an antibiotic for her UTI. Mr.

Iannuzzi prescribed the medication and placed Parker on the pregnancy

restrictions, but did not physically examine her nor speak with her about her

symptoms. Parker was told to return to her cell for the night.

The next morning, on July 20, 2018, Parker woke up in severe pain,

vomiting, sweating, and a lack of responsiveness. Prison officials and

nursing staff came to her cell and brought her to medical around 12:30 p.m.

A telephone call was placed to Dr. Zaloga, where he had Parker immediately

transferred to Moses Taylor Hospital.

Upon arrival at the hospital, it was discovered that a ten-week ectopic

pregnancy existed. Parker underwent surgery for a left salpingo-

oophorectomy for a ruptured left ectopic pregnancy. Parker had her left

fallopian tube and ovary removed during the surgery.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901

F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury

could find for the non-moving party, and is material if it will affect the outcome

of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp.

836, 838 (M.D. Pa. 1995). At the summary judgment stage, the judge’s

function is not himself to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial. Anderson,

477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247

(3d Cir. 2004) (a court may not weigh the evidence or make credibility

determinations). Rather, the court must consider all evidence and inferences

drawn therefrom in the light most favorable to the non-moving party. Andreoli

v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party

can discharge the burden by showing that on all the essential elements of its

case on which it bears the burden of proof at trial, no reasonable jury could

find for the non-moving party. In re Bressman, 327 F.3d 229, 238 (3d Cir.

2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial

burden, the non-moving party must do more than simply show that there is

some metaphysical doubt as to material facts, but must show sufficient

evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,

139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving

party fails to make a showing sufficient to establish the existence of an

element essential to [the non-movant’s] case, and on which [the non-movant]

will bear the burden of proof at trial, Rule 56 mandates the entry of summary

judgment because such a failure necessarily renders all other facts

immaterial. Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La

Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

III. DISCUSSION

a. Negligence

Defendants first argue a claim of medical malpractice in Pennsylvania

requires the testimony of a qualifying medical expert. Federal courts have

held that Section 512 of the Pennsylvania Medicare Care Availability and

Reduction of Error (“MCARE”) Act is a rule of witness competency. Keller v.

Feasterville Family Health Care Ctr., 557 F. Supp.2d 671, 684 n.3 (E.D. Pa.

2008). Under Federal Rule of Evidence 601, state law controls the evaluation

of a witness’ competency in federal diversity cases. Fed. R. Civ. P. 601;

Keller, 557 F. Supp.2d at 684 n.3. Section 512(c) of the MCARE Act states:

(c) Standard of care.-- In addition to the requirements set forth

in subsections (a) and (b), an expert testifying as to a physician's

standard of care also must meet the following qualifications:

(1) Be substantially familiar with the applicable standard of

care for the specific care at issue as of the time of the

alleged breach of the standard of care.

(2) Practice in the same subspecialty as the defendant

physician or in a subspecialty which has a substantially

similar standard of care for the specific care at issue,

except as provided in subsection (d) or (e).

(3) In the event the defendant physician is certified by an

approved board, be board certified by the same or a similar

approved board, except as provided in subsection (e).

(d) Care outside specialty.-- A court may waive the same

subspecialty requirement for an expert testifying on the standard

of care for the diagnosis or treatment of a condition if the court

determines that:

(1) the expert is trained in the diagnosis or treatment of the

condition, as applicable; and

(2) the defendant physician provided care for that condition

and such care was not within the physician's specialty or

competence.

(e) Otherwise adequate training, experience and

knowledge.-- A court may waive the same specialty and board

certification requirements for an expert testifying as to a standard

of care if the court determines that the expert possesses

sufficient training, experience and knowledge to provide the

testimony as a result of active involvement in or full-time teaching

of medicine in the applicable subspecialty or a related field of

medicine within the previous five-year time period.

40 P.S. §1303.512. The defendants argue that plaintiff’s medical expert, Dr.

Jubanyik, is not able to testify to the standard of care in this case. To testify

to the standard of care, the plaintiff’s expert must be substantially familiar

with the applicable standard of care for the specific care at issue as of the

time of the alleged breach of the standard of care. Plaintiff presents her

medical expert, Dr. Jubanyik, an associate professor in the Department of

Emergency Medicine at Yale University and a Board-Certified physician in

Emergency Medicine. Dr. Jubanyik is substantially familiar with the

applicable standard of care for ectopic pregnancies as she has experience

in evaluation, diagnosis, and treatment of women of childbearing age

presenting with abnormal vaginal bleeding and pain.

Next, defendants contend that Dr. Jubanyik is not in the same specialty

or subspecialty as Dr. Zaloga. While this is true, 512(d) provides an

exception to the requirements of 512(c)(2). Dr. Jubanyik is trained in the

diagnosis or treatment of the condition of ectopic pregnancies. (Doc. 47,

¶44). Dr. Zaloga is a nephrologist and internist that provided care to Parker

for her ectopic pregnancy. Defendants do not claim that Dr. Zaloga’s

specialty or competence included the treatment of ectopic pregnancies.

Thus, this specific type of care was not within his specialty or competence.

The court could similarly find Dr. Jubanyik competent to offer expert

testimony under 512(e). Section 512(e) requires, “the expert possesses

sufficient training, experience and knowledge to provide the testimony as a

result of active involvement in or full-time teaching of medicine in the

applicable subspecialty or a related field of medicine within the previous five-

year time period.” 40 P.S. §1303.512(e). “[T]he “relatedness” of one field of

medicine to another, under subsection 512(e), can only be assessed with

regard to the specific care at issue.” Vicari v. Spiegel, 989 A.2d 1277, 1284

(2010) (emphasis in original). The specific care at issue in this case is a

female of childbearing age presenting with abnormal vaginal bleeding and

pain. As plaintiff correctly points out, the evaluation of this specific care issue

is not a unique presentation that one sees as a nephrologist, internist, OB-

GYN, or emergency room physician. Defendants’ attempt to utilize the

specialty of Dr. Zaloga in order to prevent the testimony of Dr. Jubanyik, but

the specific care at issue in this case is not unique to Dr. Zaloga’s specialties.

Defendants argue that Dr. Jubanyik’s testimony should be excluded

because she is not familiar with the standard of care in a correctional context.

However, this argument is wholly unsupported by case law. There is nothing

to indicate that the “standard of care for the specific care at issue” changes

depending upon the setting the care takes place in. Defendants do not

identify where in the statute or caselaw the “setting” of the care reshapes the

applicable standard of care.

Thus, Dr. Jubanyik is qualified to testify under the MCARE Act

regarding the applicable standard of care.

Next, defendants argue that Dr. Jubanyik does not offer an opinion to

a reasonable degree of medical certainty that would support a conclusion

that an earlier diagnosis of ectopic pregnancy would have led to a different

outcome. In Hamil v. Bashline, the Supreme Court of Pennsylvania

explained the required level of certainty a medical expert must express when

testifying in an increased risk of harm case. 392 A.2d 1280 (Pa. 1978). The

court explained that an increased risk of harm theory inherently involves the

weighing of probabilities of what might have happened. Id. at 1288. While a

medical expert can testify to a lesser degree of certainty pertaining to the

potential outcome (meaning a more likely than not standard), the medical

expert is still required to testify to a reasonable degree of medical certainty

that the defendant’s conduct increased the risk that the harm would have

occurred. Id. at 1288-89. As such, Dr. Jubanyik expressed with a reasonable

degree of medical certainty that “Dr. Zaloga and Mr. Iannuzzi violated the

standard of care in their medical care to Ms. Parker and this violation led to

the traumatic and unnecessary complication of a ruptured ectopic pregnancy

that required life-saving emergency surgery.” (Doc. 36-15).2 Plaintiff

presents an expert opinion that testifies to a reasonable degree of medical

certainty that the defendants’ failure to follow the standard of care resulted

in an increased risk where Parker went from an unruptured ectopic

pregnancy to a ruptured ectopic pregnancy requiring emergency surgery.

Defendants contend that Dr. Jubanyik’s use of “more likely than not” in

the context of using methotrexate to prevent surgery for the ectopic

pregnancy does not meet the requirements of Hamil. To the contrary, Dr.

2 Dr. Jubanyik indicates in her prepared materials that all of her

opinions are expressed with a reasonable degree of medical certainty.

Jubanyik’s testimony pertains to the likelihood of an alternative outcome that

more likely than not would have occurred had defendants exercised the

proper standard of care. Hamil explains that under Section 323(a) of the

Restatement (Second) of Torts (1965) when a plaintiff claims an increased

risk of harm theory the expert witness can testify to the likelihood of what

would have happened in the defendant performed his service according to

the standard of care. Hamil, 392 A.2d at 1288 (“To resolve such a claim a

fact-finder must consider not only what Did occur, but also what Might have

occurred, i. e., whether the harm would have resulted from the independent

source even if defendant had performed his service in a non-negligent

manner. Such a determination as to what Might have happened necessarily

requires a weighing of probabilities.”). The expert witness is permitted to

testify to the probability of an alternative outcome had the standard of care

been followed. Id. (allowing the doctor witness to testify to the percentage

probability of the patient’s outcome had the proper standard of care been

followed).

Defendants then argue that Dr. Jubanyik cannot offer expert testimony

for the negligence claim against Mr. Iannuzzi as it would be “fundamentally

unfair to permit an Emergency physician to criticize a nurse practitioner who

provides care in a prison setting.” (Doc. 40, p.19). Defendants admit that the

requirements of Section 512(c) of the MCARE Act do not apply to Mr.

Iannuzzi. Defendants again argue that the prison “setting” impacts whether

or not Dr. Jubanyik can testify to the standard of care required of a nurse

practitioner. However, defendants again fail to cite any case law supporting

their “setting” argument. To the contrary, “Pennsylvania courts have

permitted physicians to testify as to a nurse's standard of care, provided

Pennsylvania's evidentiary rules pertaining to expert witness qualifications

are satisfied. Petrancosta v. Malik, No. 3:12-CV-00677, 2015 WL 12516203,

at *4 (M.D. Pa. Jan. 27, 2015), report and recommendation adopted sub

nom. Pentrancosta v. Malik, No. 3:12-CV-00677, 2015 WL 12513527 (M.D.

Pa. Feb. 17, 2015) (citing Rettger v. UPMC Shadyside, 991 A.2d 915, 930

(Pa. Super. 2010)); c.f. Yacoub v. Lehigh Valley Med. Assocs., P.C., 805

A.2d 579, 592 (2002) (finding that a neurosurgeon could not testify to the

standard of care for nurses working in internal medicine because he could

not remember the last time he worked with nurses in an internal medicine

unit, was not board certified in internal medicine, and did not have any

experience related to internal medicine.) As the court has already addressed

Dr. Jubanyik’s qualifications as an expert witness pertaining to the specific

care at issue in this case, defendants have not presented any argument

supported by law that would disqualify Dr. Jubanyik.

Defendants next argue that the negligence in Count II against CCI

must be dismissed if the negligence claims against Dr. Zaloga and Mr.

Iannuzzi are dismissed. As addressed above, the claims against Dr. Zaloga

and Mr. Iannuzzi will not be dismissed. Pennsylvania’s Supreme Court

explained that a physician expert witness testifying to the nurses breaching

the standard of care was “sufficient to support a prima facie claim of

corporate negligence for [defendant’s] failure to oversee all persons who

practice medicine within its walls as to patient care.” Welsh v. Bulger, 698

A.2d 581, 586 (Pa. 1997). Further, in Whittington “the Pennsylvania Superior

Court attributed a series of individual failures to the defendant hospital, and

then held that the hospital had constructive notice because, had it

undertaken adequate monitoring, ‘it would have discovered that decedent

had received and was continuing to receive medical treatment that was

clearly deficient.’” Hernandez-Anguera v. Main Line Hosps., Inc., No. 12-

6645, 2014 WL 12605468, *1 (E.D. Pa. Apr. 10, 2014) (citing Whittington v.

Episcopal Hosp., 768 A.2d 1144, 1150-54). Then, in Thompson, “The

Pennsylvania Supreme Court held that the plaintiff’s claim survived summary

judgment on the basis that, according to the evidence, hospital staff had

been aware of the plaintiff’s deteriorating condition but failed to report it or

question her treating physician’s inappropriate orders, which they had a duty

to do.” Hernandez-Anguera, 2014 WL 12605468, *1 (E.D. Pa. Apr. 10, 2014)

(citing Thompson v. Nason Hosp., 591 A.2d 703, 709 (Pa. 1991)).

Plaintiff then presents the testimony of Dr. Jubanyik to suggest

institutional failure. Dr. Jubanyik presents expert testimony that both Dr.

Zaloga and Mr. Iannuzzi violated the standard of care for plaintiff. (Doc. 36-

15). Then, Dr. Jubanyik explains how the plaintiff suffered a ruptured ectopic

pregnancy due to the violation of the standard of care. (Doc. 36-14).

Plaintiff’s expert specifically explains how the failure to administer a

pregnancy test to plaintiff on June 22, 2018 is a failure of the standard of

care. (Doc. 36-15). Plaintiff also argues that even after a pregnancy test was

administered on July 19, 2018, the standard of care was again violated by a

failure to immediately send her to the emergency room for an evaluation for

an ectopic pregnancy given her history of pain and vaginal bleeding. (Doc.

36-14). Furthermore, plaintiff explains that between June 22, 2018 and July

19, 2018, she verbally communicated to nurses her pain and submitted

medical call slips four to five times per week requesting to be seen by

medical. (Doc. 47, ¶23). Plaintiff also disputes that she was ever informed to

show the pads she was prescribed on June 22, 2018 to medical. (Doc. 47,

¶23). Plaintiff even complained to nursing staff about not being seen and was

told to keep putting medical slips in. (Doc. 47, ¶23). Plaintiff claims that

throughout her time under the care of CCI there were not proper policies,

protocols, or supervision in place in order to protect her well-being and

safety. As such, plaintiff has put forward a genuine issue of material fact as

to CCI’s negligence.

b. Eighth Amendment

Under the Eighth Amendment and then through the Fourteenth

Amendment of the United States Constitution, inmates are guaranteed

constitutionally adequate medical care while in prison. Pearson v. Prison

Health Servs., 850 F.3d 526, 534 (3d Cir. 2017). In order to allege a viable

Eighth Amendment deliberate indifference to a medical need claim, a plaintiff

must aver: “(1) the existence of serious medical needs; and (2) the official's

deliberate indifference to those needs.” Ham v. Greer, 269 Fed. Appx. 149,

151 (3d Cir. 2008) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999)). Significantly, “in the context of deliberate indifference claim[s] based

on failure to provide adequate medical treatment, ‘it is well-settled that claims

of negligence or medical malpractice, without some more culpable state of

mind, do not constitute deliberate indifference.’” Singletary v. Pa. Dep't of

Corr., 266 F.3d 186, 193 n. 2 (3d Cir. 2001) (quoting Rouse, 182 F.3d at 197

(some internal quotations omitted). See also Estelle v. Gamble, 429 U.S. 97,

97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (noting that “in the medical context, an

inadvertent failure to provide medical care cannot be said to constitute ‘an

unnecessary and wanton infliction of pain’ or to be ‘repugnant to the

conscience of mankind.’ Thus, a complaint that a physician has been

negligent in diagnosing or treating a medical condition does not state a valid

claim of medical mistreatment under the Eighth Amendment. Medical

malpractice does not become a constitutional violation merely because the

victim is a prisoner. In order to state a cognizable claim, a prisoner must

allege acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.”). “[A]s long as a physician exercises

professional judgment, his behavior will not violate a prisoner's constitutional

rights.” Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.

1990).

Medical expert testimony for a deliberate indifference claim may be

necessary to determine the propriety of a particular diagnosis or course of

treatment that would not be apparent to a lay person. Pearson, 850 F.3d at

537-38.

i. Serious Medical Need

There is a genuine dispute of material fact regarding plaintiff’s serious

medical need. Defendant claims there was not a serious medical need until

July 20, 2018 when plaintiff was immediately taken to receive emergency

care at the hospital. Plaintiff presents expert testimony that there was a

serious medical need when plaintiff presented with abnormal bleeding and

pain on June 22, 2018 and was not given a pregnancy test nor evaluated for

an ectopic pregnancy. Then, from June 23, 2018 to July 19, 2018, plaintiff

states that she placed medical slips four to five times per week regarding her

pain and abnormal bleeding. (Doc. 47, ¶23). Next, plaintiff is seen on July

19, 2018 for vomiting, bleeding, and pain where her pregnancy test produced

a positive result. However, plaintiff, even given her history of bleeding and

pain, was not evaluated for an ectopic pregnancy. Plaintiff has alleged

sufficient facts to create a genuine issue of material fact pertaining to her

serious medical need.

ii. Deliberate Indifference

A deliberate indifference claim requires the official to both “be aware of

the facts from which the inference could be drawn that a substantial risk of

serious harm exists” and to “also draw the inference. Farmer v. Brennan, 511

U.S. 825, 835-37 (1994). The plaintiff must offer evidence suggesting that

the defendant appreciated “the true serious of the risk of harm” or produce

evidence suggesting that the defendants’ treatment decision about the

specific symptoms at issue which they had awareness of was a “substantial

departure from accepted professional judgment, practice, or standards” such

that a reasonable jury could conclude that they “actually did not base [their]

decision on such judgment.” Pearson, 850 F.3d at 539 (citing Youngberg v.

Romeo, 457 U.S. 307, 323 (1982). “Courts will disavow any attempt to

second-guess the propriety or adequacy of a particular course of treatment

[so long as it] remains a question of sound professional judgment.”

Youngberg, 457 U.S. at 754.

The plaintiff introduces expert evidence pertaining to the appropriate

standard of care for her specific symptoms. This is appropriate because the

standard of care for a woman presenting with abnormal bleeding and pain is

not apparent to a layperson. Pearson, 850 F.3d at 536-37. Dr. Jubanyik

explains that the standard of care for a woman of childbearing age presenting

with abnormal bleeding and pain requires a pregnancy test and evaluation

for an ectopic pregnancy on June 22, 2018. Dr. Jubanyik explains that the

symptoms plaintiff presented with would make it apparent even to a third-

year medical student to evaluate her for an ectopic pregnancy. As such,

plaintiff presents a genuine issue of fact as to weather Dr. Zaloga’s actions

were “a substantial departure from accepted professional judgment, practice,

or standards.” Youngberg, 457 U.S. at 323.

For similar reasons, plaintiff’s deliberate indifference claim against Mr.

Iannuzzi will proceed. Parker was referred to Mr. Iannuzzi on July 19, 2018

after complaints of vomiting for three days and pain in her right side. (Doc.

48, p.11). Mr. Iannuzzi conducted a pregnancy test, which came back

positive, and a urine test, which showed a urinary tract infection (“UTI”). (Doc.

48, p.12). Mr. Iannuzzi ordered Zantac, Tylenol, Prenatal vitamins,

Clindamycin, an antibiotic for the UTI, Phenergan for nausea, and regular

temperature checks for the next three days. (Doc. 48, p.12-13). Plaintiff

presents Dr. Jubanyik to produce extrinsic evidence that Mr. Iannuzzi’s

diagnosis and treatment was a substantial departure from accepted

professional judgment, practice, or standards. Pearson, 850 F.3d at 359. The

defendants produce expert witnesses to testify that prescribing pregnancy

and UTI related medications was the appropriate standard of care. Plaintiff’s

expert explains that it was “incredulous” that plaintiff was not immediately

sent to the emergency room on July 19, 2018 after the positive pregnancy

test. Dr. Jubanyik explained, “This failure to consider ectopic pregnancy in

Ms. Parker and send her to the emergency department immediately was

gross negligence on the part of the Lackawanna medical facility and showed

wanton disregard for her safety.” (Doc. 36-14, p.2). Dr. Jubanyik further

explained that the “standard of care for a medical provider is to consider

ectopic pregnancy in any patient with a positive pregnancy test, recent

abnormal bleeding and abdominal pain. Not doing so puts pregnant women

in life-threatening situations.” (Doc. 36-15, p.2). Therefore, Dr. Jubanyik’s

opinion is that Mr. Iannuzzi substantially departed from the standard of care,

and a reasonable jury could find the same.

Lastly, plaintiff asserts a claim against CCI as the private corporation

providing medical services through a contract with Lackawanna County. The

Third Circuit has explained:

There are three situations where acts of a government employee

may be deemed to be the result of a policy or custom of the

governmental entity for whom the employee works, thereby

rendering the entity liable under §1983. The first is where “the

appropriate officer or entity promulgates a generally applicable

statement of policy and the subsequent act complained of is

simply an implementation of that policy.” Bryan County, 520 U.S.

at 417, 117 S.Ct. 1382 (Souter, J., dissenting). The second

occurs where “no rule has been announced as policy but federal

law has been violated by an act of the policymaker itself.” Id.

Finally, a policy or custom may also exist where “the policymaker

has failed to act affirmatively at all, [though] the need to take

some action to control the agents of the government ‘is so

obvious, and the inadequacy of existing practice so likely to result

in the violation of constitutional rights, that the policymaker can

reasonably be said to have been deliberately indifferent to the

need.’” Id. at 417–18, 117 S.Ct. 1382 (quoting City of Canton,

Ohio v. Harris, 489 U.S. 378, 390 (1989)).

Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003).

First, the plaintiff argues that Dr. Zaloga is the policymaker for CCI

because he has final policymaking authority for medical services provided

by CCI. Dr. Zaloga is the only physician employed by CCI. Whitehurst v.

Lackawanna Cty., No. 17-0903, 2020 WL 6106616, at *17 (M.D. Pa. Mar. 5,

2020) (stating Dr. Zaloga is not only the president and chief medical officer

of CCI, but he appears to be the only physician employed by CCI). As the

policymaker for CCI, if Dr. Zaloga was deliberately indifferent to the plaintiff’s

serious medical needs, then CCI can be held liable under the second path

of liability in Natale.

Second, plaintiff argues that CCI’s only written policy for pregnant

female inmates pertains to handling already pregnant incoming inmates as

opposed to how to evaluate female inmates for pregnancy during their

incarceration. (Doc. 46, p.41). There is no apparent policy in place to

evaluate female inmates for pregnancy. Plaintiff contends that CCI’s failure

to adopt a policy for diagnosing and confirming pregnancy in inmates upon

incarceration and to evaluate female inmates after being committed to the

prison presenting signs of pregnancy constitutes deliberate indifference.

Natale explains that a reasonable jury “could also infer that the failure to

establish a more responsive policy caused the specific constitutional

violation” complained of by Parker. Natale, 318 F.3d at 585. A reasonable

jury could infer that a failure to have any policy in place to evaluate female

inmates for pregnancy caused the specific constitutional violation of a failure

to timely diagnose and treat an ectopic pregnancy.

IV. CONCLUSION

Defendants’ motion for summary judgement, (Doc. 36), on all counts

will be denied.

An appropriate order shall follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 28, 2023

20-427-01