IN THE COMMONWEALTH COURT OF PENNSYLVANIA Orlando Baez, Petitioner v. No. 311 M.D. 2013 Pennsylvania Department of Submitted January 17, 2014 Corrections John Wetzel, Prison Health Care Services Inc., Wexford Health Sources Inc., Bureau Health Care Service Inc., Byunchak Jin, MD. Med. Dir., et al., Respondents BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED March 18, 2014 Before this Court are the Preliminary Objections (POs) of the Department of Corrections and Secretary of Corrections, John Wetzel (together, the Department), Prison Health Care Services Inc. (PHCS), Wexford Health Sources Inc. (Wexford), and Byunchak Jin, M.D. (collectively, Respondents) 1 to the Petition for Writ of 1 Baez s Petition for Writ of Mandamus (Petition) also lists Bureau Health Care Service Inc. (BHCS) as a respondent; however, Baez makes no specific allegations against BHCS in his Petition other than alleging that BHCS shares a business address with PHCS, Wexford, and Dr. Jin. (Petition 2.) Notably, the Petition s certificate of service indicates that Baez served BHCS (Continued )
Mandamus (Petition) of Orlando Baez (Baez), an inmate at the State Correctional Institute at Greene (S.C.I-Greene). In the Petition, Baez requests that this Court direct Respondents to provide him with treatment by a gastroenterologist and a chronic pain specialist, as suggested by physicians whom Dr. Jin consulted regarding Baez s lupus. In their POs, the Respondents argue, inter alia, that Baez s Petition fails to allege a cognizable claim for mandamus relief. Also before this Court is Baez s Formal Complaint[] and Request[] for This Honorable Court s Protection/Immediate Intervention and Support From Acts of Retaliation, which this Court treats as an application for injunction (Application). In the Application, to which the Department, Wexford, and Dr. Jin have filed responses, Baez alleges that he has been denied medical treatment in retaliation for his filing grievances against the conduct underlying the Petition. We address the POs and Application in turn. I. Preliminary Objections The facts of this case, as asserted in the Petition, 2 are as follows. Baez is an inmate at S.C.I.-Greene and suffers from systematic lupus erythematosus, 3 along at the same address as the Department. (Petition at 10.) Therefore, it appears that Baez may not have properly served BHCS with the Petition. 2 In considering preliminary objections, this Court accepts as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Saxberg v. Pennsylvania Department of Corrections, 42 A.3d 1210, 1211 (Pa. Cmwlth. 2012). In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id. at 1211-12. 3 Dorland s Medical Dictionary defines systematic lupus erythematosus in part as a chronic, remitting, relapsing inflammatory, often febrile multisystematic disorder of connective 2 (Continued )
with rheumatoid arthritis, joint pain, chronic abdominal and chest pain, myositis, fibromyalgia, stenosis of the cervical spine, Sjorgen s syndrome, 4 and rectal bleeding. (Petition 1, 3.) Baez was seen by Marc C. Levesque, M.D., Ph.D., a lupus specialist, on September 10, 2012. (Petition 5.) Dr. Levesque recommended that Baez be seen by a gastroenterology specialist. (Petition 5.) In addition, three other doctors have recommended that Baez be seen by a gastroenterologist. (Petition 7.) Respondents refused to send Baez to a gastroenterologist. (Petition 6.) On February 28, 2013, Baez was seen by a pain management specialist, Sudhakar Mannam, M.D., who stated he was not capable of treating Baez s medical conditions and recommended that Baez be sent to a qualified chronic pain specialist at the University of Pittsburgh Medical Center. (Petition 8.) Respondents have refused to send Baez to such a chronic pain specialist. (Petition 8.) Baez has exhausted the available grievance procedures regarding the lack of adequate care for his condition. (Petition 9.) tissue, acute or insidious in onset, characterized principally by involvement of the skin... joints, kidneys, and serosal membranes. Dorland s Medical Dictionary 1032 (29th ed. 2000). 4 Dorland s Medical Dictionary defines Sjorgen s syndrome as a symptom complex of unknown etiology... marked by the triad of keratoconjunctivitis sicca with or without lacrimal gland enlargement, xerostomia with or without salivary gland enlargement, and the presence of a connective tissue disease, usually rheumatoid arthritis but sometimes systematic lupus erythematosus.... Dorland s Medical Dictionary 1767 (29th ed. 2000). Baez asserts his manifestation of Sjorgen s syndrome involves chronic dryness of the eyes and mouth. (Petition 3.) 3
Baez filed his Petition with this Court on June 24, 2013. In it, he argues that a writ of mandamus is necessary to compel Respondents to provide him with adequate medical treatment for his medical conditions. He asserts that Respondents refusal to provide him with the consultations recommended by Dr. Levesque and Dr. Mannam amounts to deliberate indifference in violation of the Eighth and Fourteenth Amendments to the United States Constitution. 5 Baez asserts that he is at risk of irreparable harm or death if his lupus is not appropriately treated. Baez requests that this Court issue a writ of mandamus compelling Respondents to provide him with treatment by a gastroenterology specialist and Chronic Pain Specialist(s). (Petition at 9.) Respondents make the following POs in the nature of demurrer (1) Baez has failed to plead facts that would show deliberate indifference to his medical needs his disagreements regarding his treatment do not constitute a violation of the Eighth Amendment by Respondents; (2) the Department argues that Baez has failed to allege that Department officials, particularly Secretary Wetzel, were aware of any deprivation of medical care or had the power to compel a particular course of treatment; (3) PHCS argues that it is not a proper party to the mandamus action because it no longer provides health care services to the Department; (4) Wexford and Dr. Jin argue that Dr. Jin has an obligation to exercise professional medical judgment and mandamus is not a proper venue to compel his exercise of 5 The Eighth Amendment provides [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. Amend VIII. Section 1 of the Fourteenth Amendment provides, in relevant part, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV 1. 4
that judgment in a specific manner; (5) Wexford and Dr. Jin argue that Wexford is not a proper party to the mandamus action because it has no power to compel the relief Baez seeks and is not a governmental actor; and (6) the Department and PHCS argue that mandamus is not proper where Baez has adequate alternative relief in the form of a claim pursuant to Section 1983 of Title 42 of the United States Code, 42 U.S.C. 1983. Preliminarily, we note that [m]andamus is an extraordinary writ that compels performance of a ministerial act or mandatory duty where there exists (1) a clear legal right in the petitioner; (2) a corresponding duty in the respondent; and (3) an absence of any other adequate and appropriate remedy. Buehl v. Beard, 54 A.3d 412, 416 (Pa. Cmwlth. 2012). Mandamus is appropriate only to enforce established rights; it is not available to establish legal rights. Further, a court may not direct the manner in which an official performs a discretionary function. Id. (internal citations omitted). In this case, Baez asserts that Respondents are violating his right to adequate medical treatment under the Eighth Amendment. The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const. Amend. VIII. In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the United States Supreme Court concluded that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment. (Internal citation omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). In their POs, Respondents assert that Baez has failed to plead facts that would show deliberate indifference on the part of Respondents to Baez s medical 5
needs. In order to state a claim alleging deliberate indifference, an inmate must allege that (1) the deprivation of medical care is objectively sufficiently serious; and (2) subjectively, prison officials acted with a culpable state of mind, being aware of, and disregarding, an excessive risk to the inmate s health and safety. Kretchmar v. Commonwealth, 831 A.2d 793, 798-99 (Pa. Cmwlth. 2003) (citing Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)). The first prong of this test is met where the failure to treat a prisoner s condition could result in further significant injury or the unnecessary and wanton infliction of pain. Id. at 799. Respondents do not argue that Baez s alleged chronic pain and rectal bleeding do not constitute serious conditions. They do dispute, however, that Baez has been deprived of medical care for these conditions. Courts will not find deliberate indifference where an inmate is receiving medical treatment, but merely disagrees with his course of treatment The deliberate indifference test affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients. Courts will disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment... (which) remains a question of sound professional judgment. Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (citations omitted). Complaints about medical care which merely reflect a disagreement with the doctors over the proper means of treating the prisoner s medical condition do not rise to the level of a constitutional violation. Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987). Kretchmar, 831 A.2d at 799 (alterations and omissions in original). Respondents argue that the exhibits to Baez s Petition show that he is regularly receiving medical treatment and that his claims, therefore, do not amount to allegations of deliberate indifference, but merely a disagreement over his course of treatment. 6
We agree that the exhibits to Baez s Petition indicate that he is regularly receiving medical treatment. For instance, a response from the Department to one of Baez s grievances regarding his medical treatment states Mr. Baez, you state that you are being deprived of medical care when in fact you are seen on a regular basis every two weeks, unless there are any new changes in your condition. You are being followed closely by the UPMC Lupus Center and Dr. Jin has addressed the recommendations by the specialist. Mr. Baez, you are scheduled to see the Lupus Specialist in the near future and all your present medications will be reviewed. (Initial Review Response, Grievance No. 431174, October 22, 2012, Petition Ex. G.) In addition, the medical records Baez attaches to his Petition show only that some of Baez s treating physicians recommended that referrals to other specialists be considered; none of the attached records show that treating physicians thought the referrals were, without qualification, necessary to the proper treatment of Baez. For instance, in one of the records Baez attaches to his Petition, there is an unattributed 6 recommendation stating [t]he patient complains of rectal bleeding. I encouraged follow-up with medical director with consideration for referral to GI. (Petition, Ex. C (emphasis added).) Another record, from Fotios Koumpouras, M.D., states [a]bdominal pain etiology unclear. Could be gastritis. Consider Prilosec. Consider GI evaluation. Doubt pericarditis as cause. (Petition, Ex. D. (emphasis added).) Dr. Mannam s treatment plan for Baez states in part that [h]e may benefit from some multidisciplinary pain management program from University of Pittsburgh Medical Center. (Petition, Ex. F (emphasis added).) 6 Because Baez included only a single page of the medical record, it is unclear which doctor prepared this record. 7
Baez does not assert that he has received no treatment for his rectal bleeding or pain. Rather, his Petition demands that he be sent to gastroenterology and pain management specialists. In essence, Baez is attempting to mandate a particular course of treatment. As stated above, Courts will disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment... (which) remains a question of sound professional judgment. Kretchmar, 831 A.2d at 799 (quoting Inmates of the Allegheny County Jail, 612 F.2d at 762 (citations omitted)) (alterations and omissions in original). Thus, as a matter of law, Baez cannot show that he has a clear right to the relief he requests, that he be sent to a gastroenterologist and pain management specialist. 7 Therefore, we must sustain Respondents POs in the nature of demurrer and dismiss Baez s Petition with prejudice. 8 II. Application for Injunction In the Application filed with this Court on February 6, 2014, Baez alleges that on January 22, 2014, a nurse informed Baez that Dr. Jin had discontinued 7 Moreover, we take judicial notice that most, if not all, of the claims Baez raises in his Petition have been resolved in another forum. In Baez v. Falor, No. 09-1149, 2012 U.S. Dist. LEXIS 138574 (W.D. Pa. September 24, 2012), the United States District Court for the Western District of Pennsylvania, in a lengthy and thorough opinion, considered Baez s complaints including, inter alia, that medical staff and Department officials at S.C.I.-Greene failed to refer him to a gastroenterologist despite the recommendations of specialists treating Baez s lupus, and failed to adequately address Baez s pain. Id. at *98-*104, *128-134. After considering these claims, the District Court determined that Baez had failed to show deliberate indifference to his medical needs, but rather a disagreement with the treatment provided to him. Id. 8 Due to our resolution of this issue, we do not reach Respondents remaining POs. 8
vitamin D medication that had been prescribed for Baez s lupus by specialists at UPMC. (Application at 2.) Baez alleges that no specialist had recommended that the vitamin D be discontinued and that Dr. Jin was unqualified to make such a decision himself. (Application at 2.) Baez alleges that Dr. Jin has, in the past, exhibited a pattern of interference with Baez s medical treatment. (Application at 2.) Baez alleges a second incident occurred on January 26, 2014, when the same nurse informed Baez that Dr. Jin had discontinued and refused to re-order Refresh/Celluvisc eye drops, which were prescribed for Baez by specialists at UPMC for dry eyes related to Baez s lupus. (Application at 3-4.) Baez alleges that without the eye drops he experiences severe dryness and burning sensations. (Application at 4.) Baez alleges that the deprivation of the vitamin D and the eye drops are in retaliation for grievances Baez filed on January 24, 2014 9 and January 26, 2014. As relief, Baez requests that any of his visits with Dr. Jin or others from the Department s medical staff be recorded for review by this Court and that this Court order that Baez be given Refresh/Celluvisc eye drops and vitamin D medication. (Application at 5.) In support of the Application, Baez attaches the grievances filed on January 24, 2014 and January 26, 2014. In these grievances, Baez alleges that the deprivation of the vitamin D and the eye drops are in retaliation for Baez s filing of the Petition and previous grievances. 9 We note that the first instance of alleged retaliation, the January 22, 2014 deprivation of Baez s vitamin D, occurred prior to the January 24, 2014 grievance, which Baez alleges was the stimulus for the retaliation. 9
Wexford, Dr. Jin, and the Department filed responses to the Application explaining that the prescription for vitamin D was discontinued at the direction of one of Baez s treating specialists at UPMC, Yong Gil Hwang, M.D. (Department s Response 15; Wexford s Response at 2.) Wexford, Dr. Jin and the Department denied that Baez s eye drops were discontinued. They explained that Baez had been given a supply that was supposed to last 45 days, but ran out early and more had to be ordered because none were in stock. (Department s Response 18; Wexford s Response at 2.) The Department averred that Baez received a new supply of eye drops on January 31, 2014. (Department s Response 18.) In order to prevail on a request for a preliminary injunction, a party must establish a clear right to relief, that there is an urgent necessity to avoid an injury which cannot be compensated for by damages, and that greater injury will result from refusing rather than granting the relief requested. Big Bass Lake Community Association v. Warren, 950 A.2d 1137, 1144 n.8 (Pa. Cmwlth. 2008). This Court may consider evidence adduced by the parties in determining whether an injunction is necessary In determining whether a preliminary or special injunction should be granted and whether a notice or hearing should be required, the court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof which the court may require. Pa. R.C.P. No. 1531(a). Here, evidence provided by Wexford, Dr. Jin, and the Department indicates that Baez will not be able to show a clear right to relief. 10
The Department attached to its Response to Baez s Application the Declaration of the Corrections Health Care Administrator (Administrator) of S.C.I.-Greene. The Administrator averred that one of Baez s treating specialists, Dr. Hwang, directed the discontinuation of Baez s high-dose vitamin D medication, ergocalciferol. (Declaration of Administrator 10, Department s Response Ex. A.) Wexford and Dr. Jin attached to their Response to Baez s Application medical records from a visit with Dr. Hwang on December 19, 2013. In these records Dr. Hwang directed, please discontinue high dose ergocalciferol and measure vitamin D level as per Unit MD. (Consultation Record at 8, Wexford Response Ex. A.) With regard to Baez s eye drops, the Administrator averred 13. Regarding the eye drops, on December 28, 2013, Baez was given a total of 45 days of Restasis eye drops. 14. The other eye drops, Refresh/Celluvisc were never discontinued, but rather the order ran out. 15. When it was brought to the provider s attention that the order was empty another order was written. 16. On January 31, 2014, the inmate began receiving the Refresh/Celluvisc eye drops again. (Declaration of Administrator 13-16.) Thus, on the basis of the medical records and averments of the Administrator, it does not appear that Baez will be able to show any likelihood of success on the merits of his claim that his medications were discontinued in retaliation for his previous complaints regarding his medical care. 10 10 In addition, on March 3, 2014, Baez filed responses to the Department s Response and Wexford s Response. Baez s responses generally allege that the Department s Response and Wexford s Response contradict each other and that the allegations in their responses are fabrications or misrepresentations and not supported by the evidence attached thereto. Notably, however, Baez admits that since the filing of his Application, he has received his eye drops and that Dr. Hwang ordered that the high-dose vitamin D medication be discontinued. (Response to 11 (Continued )
We, therefore, deny Baez s Application. RENÉE COHN JUBELIRER, Judge Department s Response at 3; Response to Wexford s Response at 2-3.) Baez alleges that while Dr. Hwang did direct that his high-dose vitamin D medication be discontinued, the Respondents have also discontinued Baez s separate low-dose vitamin D medication. This allegation is contradicted by the Administrator, who stated that Baez is still receiving calcium and vitamin D as prescribed by Dr. Hwang. (Declaration of Administrator 11-12.) 12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Orlando Baez, Petitioner v. No. 311 M.D. 2013 Pennsylvania Department of Corrections John Wetzel, Prison Health Care Services Inc., Wexford Health Sources Inc., Bureau Health Care Service Inc., Byunchak Jin, MD. Med. Dir., et al., Respondents O R D E R NOW, March 18, 2014, the Preliminary Objections in the nature of demurrer of the Department of Corrections, John Wetzel, Prison Health Care Services Inc., Wexford Health Sources Inc., and Byunchak Jin, M.D., are hereby SUSTAINED and the Petition for Writ of Mandamus of Orlando Baez is hereby DISMISSED with prejudice. Upon consideration of Petitioner s Formal Complaints and Requests for This Honorable Court s Protection/Immediate Intervention and Support From Acts of Retaliation, and the Answers thereto, the requested injunctive relief is hereby DENIED. RENÉE COHN JUBELIRER, Judge