        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darin W. Hoffman,                        :
                 Appellant               :
                                         :
            v.                           :
                                         : No. 1674 C.D. 2016
Dr. Samer Makhoul, M.D., Dr. Savas       : Submitted: February 17, 2017
Mavridis, M.D., Conemaugh                :
Memorial Hospital, Inc., Dr. Rashida     :
Mahmud, M.D., and Pennsylvania           :
Department of Corrections,               :
Bureau of Health Care Services           :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                     FILED: May 5, 2017

            This matter is an appeal filed by Darin W. Hoffman (Plaintiff), pro se,
from orders of the Cambria County Court of Common Pleas (trial court) in a civil
action that he brought against the Pennsylvania Department of Corrections Bureau
of Health Care Services (BHCS) and three physicians and a hospital that provided
medical treatment to him. The trial court dismissed Plaintiff’s claims against
defendant BHCS and one of the defendant physicians on preliminary objections
and granted judgment on the pleadings in favor of the remaining three defendants.
For the reasons set forth below, we affirm.
            On July 17, 2014, Plaintiff, an inmate at the State Correctional
Institution at Somerset (SCI-Somerset), filed a pro se medical malpractice
complaint against Conemaugh Memorial Hospital, Inc. (Hospital) and two
physicians, Dr. Samer Makhoul and Dr. Savas Mavridis. On September 23, 2014,
Plaintiff filed an amendment of his complaint joining BHCS and SCI-Somerset
physician Dr. Rashida Mahmud as defendants and asserting claims against them
for alleged violation of the prohibitions against cruel and unusual punishment of
the Eighth Amendment to the United States Constitution and Article I, Section 13
of the Pennsylvania Constitution.
             In his complaints, Plaintiff alleges that in July 2012 he was diagnosed
with a collapsed right lung and was taken to the Hospital for performance of a talc
pleurodesis, a surgical procedure whereby the lung is fused to the chest wall by
introduction of talc.      (Complaint ¶¶4-6, 41; Amended Complaint ¶¶3-5,
Supplemental Reproduced Record (Supp. R.R.) at 14a.) At the Hospital, Plaintiff
was seen by Dr. Makhoul, and Dr. Mavridis performed the talc pleurodesis
procedure. (Complaint ¶¶6-7; Amended Complaint ¶¶5-6, Supp. R.R. at 14a.)
Plaintiff alleges that his right lung did not fully reinflate after the talc pleurodesis
procedure.    (Complaint ¶8; Amended Complaint ¶7, Supp. R.R. at 14a-15a.)
Plaintiff was discharged from the Hospital and returned to SCI-Somerset on July
19, 2012. (Complaint ¶10; Amended Complaint ¶8, Supp. R.R. at 15a.) Plaintiff
alleges that he complained on July 24, 2012 at SCI-Somerset of difficulty
breathing, that prison medical personnel performed x-rays that showed pneumonia,
and that he was treated with an antibiotic.          (Complaint ¶¶13-15; Amended
Complaint ¶¶10-12, Supp. R.R. at 15a.) On September 12, 2012, Plaintiff was
seen by SCI-Somerset chief medical officer Dr. Mahmud and she continued to be
involved in the medical care for his right lung problems through early 2013.
(Amended Complaint ¶¶13-19, 21, 24, Supp. R.R. at 15a-17a.) Plaintiff alleges


                                           2
that Dr. Mahmud and BHCS did not provide adequate treatment or allow him to
receive adequate treatment for the right lung and breathing problems that he
reported to them. (Id. ¶¶14-21, 24, 32-37, 40, Supp. R.R. at 16a-17a, 19a-20a.)
             Plaintiff did not file a certificate of merit when he commenced this
action, but alleged in his July 2012 complaint that expert testimony was
unnecessary to his malpractice claims.         (Complaint ¶¶42-45.)     In response to
notices of intent to enter judgment of non pros, Plaintiff timely filed certificates of
merit with respect to defendants Hospital, Makhoul and Mavridis on September 11,
2014 stating that expert testimony was unnecessary for the prosecution of his
claims against those defendants. (Certificates of Merit; Docket Entries, Supp. R.R.
at 2a.) Defendants Hospital, Makhoul and Mavridis filed answers and new matter
to Plaintiff’s July 2012 complaint against them. Defendants BHCS and Mahmud
filed preliminary objections, including demurrers to Plaintiff’s claims. Defendant
Mahmud, in November 2014, also served on Plaintiff a notice of intent to enter
judgment of non pros for failure to file a certificate of merit. Plaintiff did not file a
certificate of merit with respect to Dr. Mahmud, and the trial court entered
judgment of non pros as to Plaintiff’s professional negligence claims against Dr.
Mahmud. (Docket Entries, Supp. R.R. at 3a.)
             On May 4, 2015, the trial court issued an order sustaining defendants
BHCS and Mahmud’s demurrers to Plaintiff’s claims against them. In October and
November 2015, defendant Mavridis and defendants Hospital and Makhoul filed
motions for judgment on the pleadings, seeking judgment on the grounds that
Plaintiff was precluded by his certificates of merit from introducing expert
testimony and that without expert testimony, Plaintiff could not prove his claims
against them. On November 20, 2015, the trial court granted defendant Mavridis’s


                                           3
motion for judgment on the pleadings, and on March 29, 2016, the trial court
granted defendants Hospital and Makhoul’s motion for judgment on the pleadings.
Plaintiff timely appealed the trial court’s March 29, 2016 entry of judgment on the
pleadings and its order sustaining preliminary objections, which became final upon
the entry of judgment on the pleadings for the last remaining defendants.1
               Before this Court, Plaintiff contends 1) that he pleaded a valid cause
of action against defendants BHCS and Mahmud for violation of the Eighth
Amendment to the United States Constitution and Article I, Section 13 of the
Pennsylvania Constitution; 2) that expert testimony was not required to prove his
medical malpractice claims; and 3) that if expert testimony was necessary, the trial
court erred in not appointing an expert witness for him.2 We conclude that none of
these arguments is meritorious.
               The trial court correctly held that Plaintiff did not state any valid
cause of action for violation of his constitutional rights. Actions under 42 U.S.C. §
1983 (Section 1983) for violation of federal constitutional rights may be brought in
the courts of this Commonwealth and are not subject to state sovereign immunity
defenses.     Howlett v. Rose, 496 U.S. 356, 367-83 (1990); Jones v. City of
Philadelphia, 890 A.2d 1188, 1215-16 (Pa. Cmwlth. 2006) (en banc). Section
1983 provides in relevant part:



1
  Plaintiff appealed the trial court’s orders to the Superior Court, which transferred the appeal to
this Court pursuant to Pa. R.A.P. 751.
2
  Because this is an appeal from the sustaining of preliminary objections in the nature of a
demurrer and from judgment on pleadings, our review of the trial court’s orders is plenary. Gale
v. City of Philadelphia, 86 A.3d 318, 319 n.1 (Pa. Cmwlth. 2014); Tobias v. Halifax Township,
28 A.3d 223, 225 n. 4 (Pa. Cmwlth. 2011).


                                                 4
              Every person who, under color of any statute, ordinance,
              regulation, custom, or usage, of any State or Territory or the
              District of Columbia, subjects, or causes to be subjected, any
              citizen of the United States or other person within the
              jurisdiction thereof to the deprivation of any rights, privileges,
              or immunities secured by the Constitution and laws, shall be
              liable to the party injured in an action at law, suit in equity, or
              other proper proceeding for redress .…
42 U.S.C. § 1983.        A state or state agency, however, is not a “person” under
Section 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 64-71
(1989). Because BHCS is a Commonwealth agency, Plaintiff therefore as a matter
of law had no cause of action against BHCS for violation of his federal
constitutional rights. Will, 491 U.S. at 64-71; Association of Settlement Companies
v. Department of Banking, 977 A.2d 1257, 1264 (Pa. Cmwlth. 2009) (en banc);
Verrichia v. Department of Revenue, 639 A.2d 957, 962-64 (Pa. Cmwlth. 1994).
              Although Plaintiff’s federal constitutional claim against Dr. Mahmud
is not barred on this ground,3 Plaintiff’s allegations were insufficient to set forth a
federal constitutional violation. To state a cognizable claim for violation of the
Eighth Amendment’s prohibition on cruel and unusual punishment based on failure
to provide adequate medical care, an inmate must allege acts or omissions that
constitute deliberate indifference to serious medical needs. Estelle v. Gamble, 429
U.S. 97, 104-06 (1976); Tindell v. Department of Corrections, 87 A.3d 1029, 1038
(Pa. Cmwlth. 2014); Kretchmar v. Commonwealth, 831 A.2d 793, 798 (Pa.
Cmwlth. 2003). The requirement of deliberate indifference is satisfied only where
the inmate shows that the defendant knew of and disregarded an excessive risk to

3
  Plaintiff’s amended complaint included claims against Dr. Mahmud in her personal capacity.
(Joinder Praecipe ¶1, Supp. R.R. at 8a.) A cause of action for damages under Section 1983 can
be asserted against a state official in her personal capacity. Hafer v. Melo, 502 U.S. 21, 25-31
(1991).


                                               5
his health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Tindell, 87
A.3d at 1039; Kretchmar, 831 A.2d at 799. The mere claim that medical treatment
provided by prison doctors or officials was inadequate is insufficient to state a
cause of action for violation of the Eighth Amendment. Estelle, 429 U.S. at 105-
08; Kretchmar, 831 A.2d at 799; Wareham v. Jeffes, 564 A.2d 1314, 1323 (Pa.
Cmwlth. 1989). “Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.
             Plaintiff’s amended complaint did not allege any refusal to provide
medical treatment for his lung and breathing problems or any disregard of his need
for medical treatment for that condition. To the contrary, he alleged that diagnostic
tests were performed in response to his reports of breathing problems, that he was
given medical treatment for the conditions diagnosed from those tests, and that he
was sent outside the prison for further medical evaluation. (Amended Complaint
¶¶10-12, 23-24, 26, Supp. R.R. at 15a, 17a-18a.) The facts pleaded by Plaintiff
therefore, at most, set forth claims that the treatment he received was inadequate
and were not sufficient to constitute deliberate indifference to medical needs.
             Plaintiff likewise did not plead any valid cause of action for violation
of Article I, Section 13 of the Pennsylvania Constitution. The courts of this
Commonwealth have not recognized any private right of action for money
damages for violation of the Pennsylvania Constitution. Mount Airy #1, LLC v.
Pennsylvania Department of Revenue, 154 A.3d 268, 280 n.11 (Pa. 2016); Balletta
v. Spadoni, 47 A.3d 183, 192-93 (Pa. Cmwlth. 2012); R.H.S. v. Allegheny County
Department of Human Services, Office of Mental Health, 936 A.2d 1218, 1226 (Pa.




                                          6
Cmwlth. 2007); Jones, 890 A.2d at 1208, 1216.4 In any event, even if such a cause
of action existed, Plaintiff’s allegations were insufficient to set forth any violation
of the Pennsylvania Constitution.            Article I, Section 13 of the Pennsylvania
Constitution provides no greater or different protection to prisoners than the Eighth
Amendment to the United States Constitution, and any claim under Article I,
Section 13 concerning prisoner medical treatment or safety requires the same
showing of deliberate indifference as under the Eighth Amendment. Tindell, 87
A.3d at 1036 n.8; Jochen v. Horn, 727 A.2d 645, 649 (Pa. Cmwlth. 1999).
Because Plaintiff alleged only a disagreement with the adequacy of treatment that
is insufficient to state a claim of an Eighth Amendment violation, his allegations
equally failed to state a claim for violation of Article I, Section 13 of the
Pennsylvania Constitution.
               The trial court also correctly concluded that Plaintiff as a matter of
law could not prove his malpractice claims. Because the complexities of the
human body are beyond the knowledge of laypersons, expert testimony is
ordinarily required to prove negligence and causation in medical malpractice
actions. McCool v. Department of Corrections, 984 A.2d 565, 571 (Pa. Cmwlth.
2009); Vazquez v. CHS Professional Practice, P.C., 39 A.3d 395, 397-99 (Pa.
Super. 2012). The absence of expert opinion is therefore fatal to a claim for
medical malpractice and judgment for the defendant is properly granted for failure
to produce expert opinion, unless the defendant’s breach of the standard of care


4
  Although Plaintiff also included requests for declaratory and injunctive relief in his complaint
against BHCS and Dr. Mahmud, he has not set forth any basis for such relief, as his allegations
assert only a claim concerning failure to provide treatment in 2012 and early 2013 and contain no
allegations that he suffered from any condition at the time that he filed the action in 2014 for
which medical treatment was not being provided.


                                                7
and the causal relationship of the defendant’s conduct to plaintiff’s injury involve
matters so simple and obvious as to be within common knowledge. McCool, 984
A.2d at 571-72; Vazquez, 39 A.3d at 397-401.
            In the certificates of merit that he filed, Plaintiff stated that expert
testimony was not necessary for the prosecution of his claims. That certification
barred him from presenting any expert testimony that defendants were negligent or
that their negligence caused him any injury. Pa. R.C.P. No. 1042.3(a)(3) Note;
McCool, 984 A.2d at 571-72 & n.9. Indeed, Plaintiff does not dispute that he had
no expert testimony in support of any of his claims. Rather, he has asserted that
negligence and causation were obvious because the surgery that was performed did
not reinflate his lung and he was prematurely discharged from the Hospital before
he had recovered. (Complaint ¶¶42-45.) We do not agree. The appropriate
medical treatment for a collapsed lung, whether talc pleurodesis surgery may be
unsuccessful even when competently performed, and the appropriate length of
hospitalization for that surgical procedure are all questions that involve medical
knowledge and judgment, not matters within common knowledge that can be
evaluated by laypersons without expert medical testimony. Plaintiff also argues
that he asserted a claim of lack of informed consent. (Appellant’s Br. at 13.)
Assertion of an informed consent claim, however, does not eliminate the need for
expert testimony. While the plaintiff in an informed consent case need not offer
expert testimony that the doctor acted negligently, expert testimony is required to
prove the risks of the surgical procedure.     Section 504 of the Medical Care
Availability and Reduction of Error Act, Act of March 20, 2002, P.L. 154, § 504,
as amended, 40 P.S. § 1303.504; McSorley v. Deger, 905 A.2d 524, 528, 532 (Pa.
Super. 2006). Because Plaintiff was precluded from presenting expert testimony


                                         8
and could not prove his malpractice claims against the physician defendants and
the Hospital without expert testimony, the trial court properly granted judgment in
favor of these defendants. McCool, 984 A.2d at 571-72.
               Plaintiff’s remaining claim, that the trial court should have appointed
an expert witness, is without merit. An indigent plaintiff in a civil action has no
right to a court-appointed expert to support his claims. Ballod v. Department of
Corrections, 676 A.2d 1333, 1334 (Pa. Cmwlth. 1996); Cook v. City of
Philadelphia, (Pa. Cmwlth., No. 2304 C.D. 2015, filed Nov. 28, 2016), slip op. at
21, 2016 WL 6938451 at *9;5 Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.
1987).
               For the foregoing reasons, we affirm the trial court’s orders sustaining
defendants BHCS and Mahmud’s preliminary objections and granting judgment on
the pleadings in favor of defendants Hospital, Makhoul and Mavridis.



                                           __________ ___________________________
                                           JAMES GARDNER COLINS, Senior Judge




5
  Because it is an unreported decision, this opinion is not binding precedent, but is considered by
the Court for its persuasive value. 210 Pa. Code § 69.414(a).



                                                9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darin W. Hoffman,                      :
                 Appellant             :
                                       :
            v.                         :
                                       : No. 1674 C.D. 2016
Dr. Samer Makhoul, M.D., Dr. Savas     :
Mavridis, M.D., Conemaugh              :
Memorial Hospital, Inc., Dr. Rashida   :
Mahmud, M.D., and Pennsylvania         :
Department of Corrections,             :
Bureau of Health Care Services         :


                                   ORDER

            AND NOW, this 5th day of May, 2017, the orders of May 4, 2015 and
March 29, 2016 of the Cambria County Court of Common Pleas in the above
captioned matter are AFFIRMED.



                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darin W. Hoffman,                     :
                 Appellant            :
                                      :       No. 1674 C.D. 2016
             v.                       :
                                      :       Submitted: February 17, 2017
Dr. Samer Makhoul, M.D., Dr. Savas :
Mavridis, M.D., Conemaugh Memorial :
Hospital, Inc., Dr. Rashida Mahmud,   :
M.D., and Pennsylvania Department     :
of Corrections, Bureau of Health Care :
Services                              :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE McCULLOUGH                                         FILED: May 5, 2017


             I respectfully dissent. At this stage of the proceedings, I believe that
Darin W. Hoffman has raised sufficient allegations in his complaint and amended
complaint regarding the adequacy of his treatment for his collapsed lung by the
various defendants and a premature discharge from Conemaugh Memorial
Hospital, Inc. (Hospital), such that the trial court’s order sustaining the preliminary
objections of the Pennsylvania Department of Corrections, Bureau of Health Care
Services and Dr. Rashida Mahmud and granting a judgment on the pleadings in
favor of Hospital, Dr. Savas Mavridis, and Dr. Samer Makhoul was in error.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
