John is a member of the firm's Health Care Department. He concentrates his practice in medical malpractice, representing correctional health care providers, health systems, long term-care facilities, assisted living facilities, physicians, nurses and mental health professionals. John also has extensive experience in handling general liability matters which is a significant asset in defending legal malpractice actions, particularly as they relate to claims against trial counsel. When a legal malpractice claim derives from an underlying medical malpractice or general liability matter, John brings depth and added knowledge to the defense of the matter. He has successfully tried cases to verdict in all three of Pennsylvania's federal courts, and in 12 county courts of common pleas. John has also participated in various types of ADR activities, including arbitrations and mediations, throughout Pennsylvania.
John partners with his clients to resolve matters as efficiently and effectively as possible. He evaluates each case with an eye toward prompt resolution, whether through ADR or trial. An experienced trial attorney, John assesses the risk of exposure and focuses on developing a persuasive story that is easily understandable for the jury.
While attending the Dickinson School of Law, John was a member of the ATLA trial team. He was also an adjunct professor with the Advocacy Program. Prior to law school, John graduated summa cum laude from Indiana University of Pennsylvania. As an undergrad, he participated in varsity baseball and was named a three-time PSAC scholar athlete award winner. John remains active with IUP and has served as the president of the Alumni Association Board of Directors. He was the recipient of the Distinguished Alumni Award for Service in 2018.
John has been recognized among the Best Lawyers in America since 2018, and has been selected a Best Lawyers “Lawyer of the Year” in the Harrisburg region in both 2022 and 2020. He has additionally been selected a Pennsylvania Super Lawyer numerous times since 2014.
As an active member of the legal and civic communities, John is involved in various organizations. He is a member of the Federal Bar Association, Middle District of Pennsylvania Chapter, as well as the Dauphin and Cumberland County Bar Associations, the Pennsylvania Defense Institute, and the St. Thomas More Society. John is the former Mayor of Paxtang Borough and past president of the Paxtang Borough Council. He coached youth sports through the Wilhem Paxtang Athletic Association and the St. Margaret Mary Athletic Association for a number of years.
Honors & Awards
•The Best Lawyers in America, 'Lawyer of the Year,' Harrisburg, Litigation - Insurance (2020, 2024)
•The Best Lawyers in America, Personal Injury Litigation - Defendants; Litigation - Insurance (2018-2026)
•Pennsylvania Super Lawyers (2014-2018, 2021-2025)
•Pennsylvania Super Lawyers Rising Star (2010-2011)
Results
Defense verdict for physician in the Eastern District of Pennsylvania.
The plaintiff alleged that a physician in the Lehigh County jail failed to properly treat his chronic back pain, and that the physician exhibited a deliberate indifference to his serious medical needs. Specifically, the plaintiff contended that he should have received a spinal cord stimulator during his incarceration. After two days of testimony, the jury returned a defense verdict, agreeing with the defense’s position that the physician did not exhibit a deliberate indifference to the plaintiff’s serious medical needs.
Thought Leadership
Defense Digest
Third Circuit Holds There Is No Right to Intervention in a Medical Context
March 1, 2024
Key Points: There is a constitutional right to medical care for those individuals in custody. Although there is a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, the Third Circuit, in Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023), has definitively stated that there is no cause of action for a failure to intervene in a medical context.In correctional medicine, the Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” With respect to prisoner confinement, the Eighth Amendment obligates the government “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Thus, for decades those individuals in custody have had a constitutional right to medical care. Creative plaintiffs’ lawyers have since brought federal civil rights claims seeking to create a cause of action for a failure to intervene against both law enforcement and medical staff personnel, arguing those individuals had a duty to prevent a violation of the right to medical care where medical care was not provided or adequately provided to a person in custody. For years there had been conflicting case law as to whether there was a cause of action for a failure to intervene in the medical context in correctional facilities. Older authority stood for the proposition that medical providers could not be liable for failing to intervene in situations involving excessive force. See, e.g., Ali v. McAnany, 262 Fed. Appx. 443, 446 (3d Cir. Jan. 25, 2008); Goldsmith v. Franklin County, 2016 WL 6440141, at *7 (M.D. Pa. Sept. 30, 2016) (“[T]he [Third Circuit] has expressly declined to extend its holding in Smith beyond correctional officers to impose a duty to intervene upon medical employees working within a prison setting.”); Harris v. Hershey Med. Ctr., 2009 WL 2762732, at *6 (M.D. Pa. Aug. 27, 2009). In Goldsmith, the District Court explained: [A]lthough [the Third Circuit in] Smith announced that corrections officers have a legal duty to intervene . . . the court clearly grounded its decision in the fact that a corrections officer, like a police officer, is a law enforcement officer, sworn to uphold the law, and authorized to use force if necessary.2016 WL 6440141, at *7. Thus, a medical provider has “no legal duty to intervene on behalf of an inmate in the midst of physical altercations with staff.” Id.More recent decisions have been decided differently. District courts have found plausible causes of action for failure to intervene against medical professionals where they have allegedly failed to provide emergency medical care. See Thomas v. Harrisburg City Police Dep’t, 2021 WL 4819312 (M.D. Pa. Oct. 15, 2021) and Cyr v. Schuylkill Cnty., 2023 WL 1107879 (M.D. Pa. Jan. 30, 2023). The Thomas decision was appealed to the Third Circuit by individual police officers on qualified immunity grounds after their motion to dismiss was denied. See Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023). The decedent in Thomas ingested cocaine at the time of his arrest. The plaintiff argued that the arresting police officers had a duty to intervene to prevent the violation of the decedent’s constitutional right to medical care. Specifically, it was alleged that the police officers should not have taken the decedent to the county booking center but, rather, should have taken the decedent to the hospital for evaluation. The police officers argued that they had qualified immunity. The Third Circuit found that the District Court properly denied the police officers’ motion to dismiss as to the failure to render medical care. However, the Third Circuit held that the District Court erred in denying the motion to dismiss on the failure to intervene claim. The court stated:The Officers contend that the District Court improperly denied their motion to dismiss because (1) Sherelle Thomas cannot adequately plead a violation of failure to intervene to prevent a violation of the right to medical care where no such cause of action exists and (2) there is no clearly established right to intervention in the context of medical care. The District Court does not directly address whether individuals have a clearly established right to intervention. We agree with the Officers that we have not recognized any such right, nor has the Supreme Court. Though we have recognized a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, we have since concluded that our precedent does not establish, let alone clearly establish, a right to intervention in other contexts. Thomas, 88 F.4th at 285. Thus, the Third Circuit has definitively stated that there is no cause of action for a failure to intervene in a medical context, and this holding has been followed by at least one subsequent district court case where such a claim was pursued. See Rossman v. PrimeCare Medical, Inc., 2024 WL 115203 (M.D. Pa. Jan. 10, 2024). As such, neither medical professionals nor law enforcement should be required to defend a failure to intervene claim arising from medical care, and these claims should be challenged.John is a shareholder in our Harrisburg, Pennsylvania, office. He can be reached at (717) 651-3709 or JRNinosky@mdwcg.com. Defense Digest, Vol. 30, No. 1, March 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
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