Jon Campisi Feb. 14, 2012, 7:13am

A federal judge has denied a request by Montgomery County to dismiss a lawsuit against it that had been filed by a former prison inmate who claimed a failure on the part of correctional medical staff to detect a spinal abscess caused him to suffer great bodily harm.

Peter D’Agostino, who had been incarcerated at the Montgomery County Correctional Facility in February 2010 for a parole violation, alleged in his complaint that prison medical staff failed to discover an abscess that had been growing on his spine, a failure that led to D’Agostino needing serious surgery and subsequently being confined to a wheelchair.

In addition to the county, the other defendants named in the lawsuit were Blue Bell, Pa.-based Correctional Medical Care Inc., which has a contract with the prison; Margaret Carillo, who is identified as CMC’s medical director; and an unidentified CMC nurse CMC physician’s assistant.

D’Agostino’s suit claims that prison medical staff treated him for a urinary tract infection even though his real problem was the undetected spinal abscess.

The suit alleges that the defendants violated D’Agostino’s Eighth Amendment right to be free from cruel and unusual punishment.

It also asserts that the county and CMC should be held liable for the actions of the individual defendants.

The defendants filed a motion to dismiss the complaint in its entirety, arguing that D’Agostino failed to exhaust administrative remedies, that he failed to state a claim of deliberate indifference against the individual defendants, that he failed to state a constitutional claim against the correction facility and CMC, and that he failed to file certificates of merit in support of the state-law professional malpractice claims as required by the Pennsylvania Rules of Civil Procedure.

In denying the defendants’ motions to dismiss, U.S. District Judge Cynthia M. Rufe ruled that, first, D’Agostino didn’t fail to exhaust all available administrative remedies, since he was hospitalized and gravely ill during the seven-day period allowed for the filing of an administrative compliant under Montgomery County Correctional Facility policy.

In her ruling, Rufe also wrote that the plaintiff’s claims of deliberate indifference on the part of the defendants are sufficient at this stage of the litigation in order to move the case forward.

The judge further wrote that D’Agostino’s claim of vicarious liability could move forward as well, since the “allegation that the County and CMC entered into a written contract which created a financial disincentive to meet the serious medical needs of inmates who required referral to outside medical providers, along with the allegation that Dr. Carillo acted pursuant to a resulting policy, practice or custom which discouraged outside referrals, is sufficient to state a claim at this state of the litigation.”

Lastly, Rufe determined that D’Agostino has not run out of time to file certificates of merit in support of his state-law professional malpractice claims, despite the defendants’ assertion to the contrary.

D’Agostino’s lawsuit claims that following surgery to drain the spinal abscess from his body, the plaintiff had to receive outpatient rehabilitation services, and to this day continues to suffer from limitations due to his spinal cord injury, such as difficulty walking without assistance, pain and discomfort, and difficulty voiding his bladder, which has caused him to have to catheterize himself multiple times a day.

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