On February 9, 2012 Eastern District Court of Pennsylvania upheld claims of deliberate indifference by individual defendants, vicarious liability of Correctional Medical Care, Inc. ("CMC"), and professional malpractice.

Peter D'Agostino, a prisoner in the Montgomery County Correctional Facility ("MCCF"), was examined by CMC physician assistant ("PA") for back, arm, and leg pain, a 104 degree fever and an elevated pulse. PA diagnosed a urinary tract infection, ordered test for confirmation and prescribed antibiotics and acetaminophen. The lab tests were negative for urinary tract infection. A week later, Dr. Carrillo examined D'Agostino, who was now confined to a wheelchair, and decided that no additional treatment or diagnostic tests were necessary.

By the ninth day, D'Agostino's condition worsened. Increasing white blood cell count indicated that the prescribed antibiotics were ineffective. After being transported to Mercy Suburban Hospital emergency room, the MRI revealed a spinal abscess.

In spite of rehabilitation and aftercare, D'Agostino continued to suffer physical problems stemming from the spinal injury. When he filed a civil suit, MCCF and CMC motioned to dismiss under Federal Rule of Civil Procedure 12(b)(6). D'Agostino presented factual content for the court to draw reasonable inference on the liability of the misconduct.

Since the content was enough to raise a right to relief above speculative level, the court categorically evaluated the complaint and made its findings. The court first ruled that D'Agostino could not exhaust his administrative remedies in the time period required by the Prison Litigation Reform Act before filing a civil rights action in federal court. In the seven calendar days from the triggering event, D'Agostino was hospitalized, and gravely ill, and unable to utilize the Inmate Grievance process. The court denied this claim of the motion for dismissal.

D'Agostino alleged the PA and physician violated his Eighth Amendment, which prohibits cruel and unusual punishment of prisoners. When the medical personnel acted with deliberate indifference to D'Agostino's serious medical condition, his condition worsened and still Dr. Carrillo opted not to change the medication or order additional tests, which resulted in being taken to the emergency room. The court determined there was sufficient claim to the allegation.

The court also recognized the contractual agreement between CMC and the County and inferred from D'Agostino's allegation that financial incentives delayed referral to outside medical treatment because CMC followed policy, practice, and custom of discouraging outside referral. The court denied the Motion to Dismiss.

See: D'Agostino v. Montgomery County, et al., Penn. Dist. Ct., No. 11-7728.

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