PHILADELPHIA – A federal judge has retained claims against the City of Philadelphia, made by a man formerly in the local prison system alleging that sub-standard care led him to develop a MRSA infection and be permanently disfigured – while similar claims against the Chief of Medical Operations at the Philadelphia Department of Prisons have been dropped.
Gregory Barrow first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 19 versus the City of Philadelphia, Corizon Health, Inc., Bruce Herdman, Lolitha Trivikram, M.D., Mohammed Haque, M.D., Adekunie Gbadamosi, M.D., Donna Plummer Leone, N.P., Charlett Fentress, M.A., Steven Ibraham, M.D., Victoria Tunacao, R.N., Oluyemisi Adekunle, L.P.N., a John Doe Corizon employee and John Doe corrections officers. All parties are of Philadelphia.
“From November 2021 through December 2021, the City of Philadelphia contracted with Corizon to provide health care to all prisoners and pretrial detainees housed in the Philadelphia Prison System. The City of Philadelphia and Corizon are responsible for creating, implementing and enforcing policies, practices, and procedures to ensure that all pretrial detainees and prisoners are provided proper medical and healthcare while in their custody. At the time, plaintiff was a 61-year-old male with a history of health problems,” the suit said.
“Previous to the time of instant matter, plaintiff had a spine stimulator implant in his body to manage pain from three right hip surgeries and two ventral hernia repairs. Further, since the surgeries, plaintiff was permanently on blood thinners due to a history of Deep Vein Thrombosis. During plaintiff’s initial incarceration, Nov. 25, 2021, plaintiff submitted sick call slips for a lump on his right buttock and associated pain, all of which were ignored. Unrelated to the instant matter, plaintiff received blood thinner medication from the prison. Plaintiff was routinely transported to the medical center at the Curran-Fromhold Correctional Facility for the blood thinner medicine.”
From Nov. 25, 2021, through Dec. 3, 2021, plaintiff submitted multiple sick call slips and grieves in relation to the lump on his right buttocks, all of which were ignored.
Barrow developed a boil on his right buttock, also referred to as cellulitis or an abscess, infected with Methicillin-resistant Staphylococcus aureus (MRSA), which he contended was ignored by doctors over the subsequent week.
The surgery to treat the boil took place at Nazareth Hospital on Dec. 11, 2021, but the suit said that despite specific instructions, doctors at the prison did not follow the prescribed schedule for the plaintiff’s surgical aftercare.
“On Dec. 30, 2021, plaintiff met with defendant Ibraham and complained of continued pain from the wound from the surgery and the wound dressing. The medical records indicate defendant Ibraham knew plaintiff was not given Clindamycin but instead was taking Bactrim from his cell. On or about Dec.31, 2021, the PPS released plaintiff from custody. On Jan. 10, 2022, plaintiff went to Roxborough Hospital near his home for treatment for the wound. The doctors at Roxborough Hospital treated the wound and gave him a dressing. The doctors told him he would be better suited to return to Nazareth Hospital for future care. On Jan. 11, 2022, plaintiff voluntarily returned to Nazareth Hospital with worsening pain and drainage from the buttock wound from the site of the previous abscess. Plaintiff was diagnosed with cellulitis and a new abscess due to the lack of care from the defendant,” the suit stated.
“Plaintiff’s wound was again cleaned and re-dressed. Plaintiff was discharged with new antibiotics. Since the incident, plaintiff received home health care to treat the wound and the MRSA infection. Since the incident, plaintiff has seen the treating physician from Nazareth twice for care and has been a regular patient with a dermatologist for wound care management. Based upon information and belief, had plaintiff been given proper care by the defendants from the time of his initial complaints regarding the lump on his buttock in late November 2021, plaintiff would not have needed surgery and would not have had a continued MRSA infection. Plaintiff is now permanently disfigured. In addition, he has a massive dent in his right buttock due to the infections and surgeries due to the lack of care provided by the defendants.”
The City and Herdman filed a motion to dismiss the case on Sept. 15, for failure to state claims upon which relief could be granted.
“By his complaint, plaintiff alleges that he received insufficient healthcare while incarcerated at the Philadelphia Department of Prisons – incorrectly identified as the Philadelphia Prison System – from Nov. 25, 2021 to Dec. 31, 2021. Contrary to his assertion, plaintiff received ample care during his period of incarceration, one week of which was spent inpatient at a local hospital,” per the motion.
“While he disagrees with the course of care provided by PDP and its contracted medical provider, plaintiff cannot establish a claim that he sustained a constitutional harm as a result of that care. Nor does he plausibly allege facts sufficient to support his federal or state law claims against Bruce Herdman, the Chief of Medical Operations at the PDP or the City of Philadelphia. Consequently, the City and Mr. Herdman move to dismiss plaintiff’s complaint in its entirety.”
Defense counsel counters that Barrow failed to properly support his claims.
“First, plaintiff’s allegations about Bruce Herdman are not plausible, and, absent those implausible allegations, plaintiff does not establish the personal involvement of Dr. Herdman in his medical care or in the supervision of medical personnel’s treatment decisions, warranting dismissal of Counts I and II. Second, Pennsylvania law precludes plaintiff from pursuing a claim of negligence against Dr. Herdman, warranting dismissal of Count IV,” the motion stated.
“Third, even had plaintiff sufficiently alleged a constitutional violation arising out of the abundant medical care he was provided during his five-week incarceration, which, as discussed, he has not, he still fails to allege sufficient facts to state a claim that the City can be held liable for such constitutional harm.”
In an opposing response brief filed on Sept. 27, the plaintiff’s counsel called the moving defendants’ actions in attempting to dismiss their client’s case as “shameless.”
“Instead of accepting responsibility for their actions and making the plaintiff whole for their inhumane treatment, the moving defendants shamelessly filed a motion to dismiss, claiming plaintiff failed to state a claim for which he is entitled to relief, asking this Court to shield them from liability. Their motion should be denied except where otherwise indicated by plaintiff,” the brief stated, in part.
According to the brief, the plaintiff “has pled more than enough facts in his complaint to survive a motion to dismiss.”
“Count I of the complaint is a general denial of medical care claim where clearly, based on the above case law, a supervisor for a municipality can be held liable for the lack of access to care by inmates. Further, Count II of the complaint is a more specific claim for supervisory liability against defendant Herdman. Both of these claims are clearly made out by the factual pleadings – defendant Herdman was the top official for the City of Philadelphia who made decisions regarding medical care and medical access to inmates at the PPS. The motion to dismiss should be denied and defendant Herdman should be forced to answer up for his conduct,” the brief said.
“Plaintiff clearly pled that he filed medical requests for his boil, and his requests were completely ignored. The systematic process for inmates requesting medical care is clearly defective, and the City of Philadelphia has made no efforts to fix the defects. The City of Philadelphia’s motion to dismiss on Monell grossly misses the mark. Plaintiff has averred sufficient facts to survive a motion to dismiss – he has alleged a systematic custom of denial of medical care.”
UPDATE
On Oct. 24, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh partially granted the dismissal motion, retaining the claims against the City, but dismissing those against Herdman with prejudice.
“It is hereby ordered as follows: 1) Defendants’ motion to dismiss claims for municipal liability under Monell is denied. 2) Defendants’ motion to dismiss claims against Bruce Herdman is granted. All claims against this defendant are dismissed without prejudice. Plaintiff is granted leave to amend within 20 days from the date of this order,” McHugh ruled.
For counts of violations to the Fourteenth Amendment of the U.S. Constitution through failure to protect and denial of medical care, supervisor liability and municipal liability, negligence and vicarious liability, the plaintiff is seeking damages in excess of $5,000,000 in compensatory damages, delay damages, interest, attorney’s fees and allowable costs of suit and brings this action to recover same.
The plaintiff is represented by Brian J. Zeiger of Levin & Zeiger, in Philadelphia.
Defendants City of Philadelphia and Herdman are represented by Matthew K. Hubbard of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-03322
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com