JESSICA HANKEY, Individually, and as Administratrix of the Estate of Ryan Rohrbaugh v. Wexford Health Sources, Inc.

Honorable Gene E.K. Pratter, United States District Judge for the Eastern District*
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 09-3675
____________
JESSICA HANKEY,
Individually, and as Administratrix of the Estate of Ryan Rohrbaugh,
Appellant
v.
WEXFORD HEALTH SOURCES, INC.;
PRISON HEALTH SERVICES, INC.;
D.O. MARK BAKER; D.O. ALAN ESPER;
DEBORAH O’LEARY, PA-C
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-05-cv-00136)
District Judge: Honorable A. Richard Caputo
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 16, 2010
Before: FISHER and COWEN, Circuit Judges, and PRATTER, District Judge.*
(Filed:June 4, 2010 )
____________
OPINION OF THE COURT
____________

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The District Court had jurisdiction pursuant to 42 U.S.C. § 1983, and this Court1
has jurisdiction pursuant to 28 U.S.C. § 1291.
2
PRATTER, District Judge.
Ryan Rohrbaugh was diagnosed with malignant melanoma while incarcerated at
State Correctional Institution – Albion (“Albion”). He received a significant amount of
medical treatment at Albion, but did not consult with an oncologist prior to his release
from prison. After his release, Mr. Rohrbaugh filed a lawsuit in the Middle District of
Pennsylvania, raising a multitude of federal and state claims against various defendants.
Mr. Rohrbaugh’s claims included, inter alia, a claim against Dr. Mark Baker, a family
practitioner and the medical director of Albion, for deliberate indifference to medical
needs under 42 U.S.C. § 1983 and the Eighth Amendment, as well as a claim against Dr.
Baker for medical malpractice under Pennsylvania state law.
Mr. Rohrbaugh subsequently passed away, and Ms. Jessica Hankey was substituted
as a party. Ms. Hankey, individually and as the Administratrix of Mr. Rohrbaugh’s estate,
now appeals from an Order and Judgment entered by the District Court granting summary
judgment to Dr. Baker on the § 1983 claim and declining to exercise supplemental
jurisdiction over the state medical malpractice claim. We will affirm the District Court’s
judgment.1

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Mr. Rohrbaugh was initially incarcerated at York County Prison, and after several2
months he was transferred to State Correctional Institution – Camp Hill. He was later
transferred to Albion, where he remained until his release. Although Mr. Rohrbaugh
alleged that he requested treatment for a lesion on his back at all three places of
incarceration, the facts relevant to this appeal are limited to those that arose at Albion.
3
I. Factual and Procedural Background
This case initially involved several additional parties and claims, but the issues on
appeal are limited to the treatment that Mr. Rohrbaugh received at Albion by Dr. Baker.2
We write exclusively for the parties, who are familiar with the factual context and legal
history of this case. Therefore, we set forth only those facts necessary to our analysis.
While incarcerated at Albion, Mr. Rohrbaugh underwent a shave biopsy of a
lesion, or mole, on his back. This biopsy was performed on September 27, 2003, and a
pathology report was generated on October 3, 2003. The report contained the following
diagnosis: “Malignant Melanoma, with invasion of at least the reticular dermis (Clark’s
level of at least IV), to a maximum Breslow thickness of at least 5mm, with extension to
the base (deep margin) of the biopsy.” (App. at 51.) On October 7, 2003, this pathology
report was given to Dr. Baker, who reviewed it. Dr. Baker then referred Mr. Rohrbaugh
to a general surgeon, Dr. Alan Esper.
Dr. Esper saw Mr. Rohrbaugh at the prison’s general surgery clinic on October 15,
2003. At that time, Mr. Rohrbaugh told Dr. Esper that he had had the mole for two years
and that it had gotten progressively larger. Later that same day, Dr. Esper wrote a letter to
Dr. Baker, recommending that Mr. Rohrbaugh receive a wide excision of the lesion. Dr.

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At his deposition, Dr. Baker was questioned as to why he wrote the order for the3
wide excision, as opposed to Dr. Esper writing the order. Dr. Baker testified that the
normal procedure was for Dr. Esper to make treatment recommendations and for Dr.
Baker to review them. If Dr. Baker agreed with the recommendations, he would take the
steps necessary to implement them.
4
Baker wrote an order for a wide excision, which Dr. Esper performed on November 4,3
2003. A pathology report was generated two days later, which reflected that there was:
1) Superficial spreading [of] malignant melanoma, Clark’s level V, 6 mm
thick with mild lymphohistocytic inflammatory infiltrate . . .
2) All surgical margins of excision negative for malignant neoplasm;
3) Cicatrix.
(Supp. App. at 20.) The pathology report was received by Dr. Baker on the following
day, November 7, 2003, and Dr. Baker made a notation on the report that the findings
were abnormal.
Dr. Esper followed up with Mr. Rohrbaugh on November 19, 2003, and
recommended that he see an oncologist. Later that same day, Dr. Baker spoke to both Dr.
Esper and Mr. Rohrbaugh about Dr. Esper’s recommendation that Mr. Rohrbaugh see an
oncologist. However, Mr. Rohrbaugh told Dr. Baker that he was scheduled to be released
from prison soon, and strongly preferred to delay further treatment until after his release.
Dr. Baker confirmed that Mr. Rohrbaugh was scheduled to be released from prison in two
to eight weeks, and likely with an actual release in less than four weeks. Under these
circumstances, Dr. Baker decided to defer to Mr. Rohrbaugh’s expressed wishes, and he
did not order an oncology consult for Mr. Rohrbaugh prior to release from prison. At this

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5
point in time, Dr. Baker did not know whether Mr. Rohrbaugh’s cancer had metasticized,
and he knew that an oncology consultation was necessary to determine Mr. Rohrbaugh’s
prognosis.
Dr. Baker again met with Mr. Rohrbaugh on December 5, 2003, and advised him
to seek further medical treatment after his release, including an oncology consult. At that
time, Dr. Baker gave Mr. Rohrbaugh a copy of his November 6 pathology report, a letter
from Dr. Esper regarding the surgery, and a prescription for a possible follow-up
metastatic work-up.
Mr. Rohrbaugh was released from prison on December 22, 2003. He sought care
for his melanoma approximately seven weeks after his release. Unfortunately, his cancer
recurred and he was diagnosed with metastatic disease, from which he passed away on
June 7, 2006.
In support of her Eighth Amendment arguments, Ms. Hankey presents the report of
a family medicine expert, Dr. Casey Cochran, who opined that once Dr. Baker knew that
Mr. Rohrbaugh’s melanoma was at least 5mm thick, Dr. Baker should have required a
referral to a medical oncologist or a melanoma specialist “soon after the melanoma
diagnosis in order to optimize the chances for appropriate therapy.” (App. at 58-59.) In
addition, Ms. Hankey presents the report and testimony of a surgical oncology expert, Dr.
Douglas Fraker, who opined that given the information available to Dr. Baker as of his
November 19, 2003 evaluation of Mr. Rohrbaugh, the appropriate standard of care

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Ms. Hankey subsequently transferred the lawsuit, together with the record, to state4
court pursuant to 42 Pa.C.S.A § 5103(b).
6
required an urgent re-excision with sentinel node biopsy and lymph node mapping. (App.
at 60-61.) Ms. Hankey also emphasizes that Dr. Baker never asked Mr. Rohrbaugh to
sign a DC-462 form, which is a form that the Pennsylvania Department of Corrections
maintains so that medical providers can document occasions when inmates refuse medical
treatment.
On July 8, 2009, the District Court granted that part of Dr. Baker’s motion for
summary judgment regarding the federal civil rights claims, and denied that part of Dr.
Baker’s motion regarding state and common law medical malpractice claims. On
August 13, 2009, pursuant to an agreement of the parties, the Court issued an order
declining to exercise supplemental jurisdiction, dismissed the remaining state and
common law medical malpractice claims, and entered a final judgment. Ms. Hankey4
then filed this appeal regarding the entry of judgment in favor of Dr. Baker on the federal
claims.
II. Standard of Review
Our standard of review over the District Court’s grant of summary judgment is
plenary. See McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment
is proper “if there is no genuine issue as to any material fact and [the] movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine if there is a

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7
sufficient evidentiary basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the Appellant failed to
“make a showing sufficient to establish the existence of an element essential” to her case,
and for which she bears the burden of proof at trial, we must affirm the entry of summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We view the record in the
light most favorable to the Appellant and draw all reasonable inferences in Appellant’s
favor. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). We may affirm the District
Court on any basis that finds support in the record. Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999).
III. Discussion
The Eighth Amendment, through its prohibition of cruel and unusual punishment,
imposes a duty on prison officials to provide humane conditions of confinement,
including adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). A
violation of the Amendment occurs when (1) a medical need is serious and (2) the acts or
omissions by prison officials demonstrate “deliberate indifference” to the inmate’s health
or safety. See id. at 104-06; Monmouth County Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326, 346 (3d Cir. 1987). Thus, there are both objective and subjective
components to a deliberate indifference claim. Montgomery v. Pinchak, 294 F.3d 492,
499 (3d Cir. 2002).

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8
Deliberate indifference may be manifested by “intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once prescribed.”
Estelle, 429 U.S. at 104-05; see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(reiterating that deliberate indifference may be demonstrated by intentionally denying,
delaying or preventing a prisoner from receiving needed or recommended medical
treatment). Estelle instructs, however, that medical judgments by doctors or prison
officials that later prove inappropriate or negligent are not alone sufficient to give rise to
an Eighth Amendment claim. See Estelle, 429 U.S. at 104-07; Farmer v. Brennan, 511
U.S. 825, 835 (1994) (reiterating Estelle’s distinction between deliberate indifference to
serious medical needs and “mere negligence”); Durmer v. O’Carroll, 991 F.2d 64, 67 (3d
Cir. 1993) (acknowledging that a deliberate indifference claim requires that a prisoner
demonstrate “more than negligence”). Instead, the deliberate indifference standard
requires “obduracy and wantonness,” Whitley v. Albers, 475 U.S. 312, 319 (1986), which
has been likened to conduct that includes recklessness or a conscious disregard of a
substantial risk of serious harm. See Rouse, 182 F.3d at 197. Accordingly, when some
medical care is administered by officials that arguably falls below the generally accepted
standard of care, that medical care is often sufficient to rebut accusations of deliberate
indifference and preclude a finding of an Eighth Amendment violation. See, e.g., Brown
v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (stating that prison
officials and doctors will be given wide latitude to address the medical needs of inmates

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9
and that “it is well established that as long as a physician exercises professional judgment
his behavior will not violate a prisoner’s constitutional rights”).
In Farmer v. Brennan, the Supreme Court explained that the term “deliberate
indifference” lies “somewhere between the poles of negligence at one end and purpose or
knowledge at the other.” 511 U.S. at 836. The Court instructed that:
A prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw
the inference.
511 U.S. at 837.
Here, we are concerned with whether Dr. Baker acted with deliberate indifference
to Mr. Rohrbaugh’s health. The evidence reflects that Dr. Baker knew that Mr.
Rohrbaugh needed to consult with an oncologist regarding the lesion on his back, and that
the consultation should be done sooner rather than later. However, there is nothing to
suggest that Dr. Baker thought that an oncology consultation was necessary prior to Mr.
Rohrbaugh’s release from prison, especially in the face of Mr. Rohrbaugh’s expressed
wish to wait until after he was released to receive follow-up care. As Dr. Baker testified
at his deposition:
Q: Okay. Did you feel an oncology consult was necessary?
A: I felt an oncology consult was necessary at some point. But the key
is the patient was adamant about getting out and wanting to follow
up with his own doctors. And that’s his own choice.

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Later in the deposition, Dr. Baker clarified his use of the phrase “at some point”;5
however, the relevant deposition page was not included in the appendices on appeal. Dr.
Baker’s clarification, as reprinted in the District Court’s opinion, is as follows:
Q: What do you mean when you use the phrase “at some point”?
A: Well, again, with the – with his diagnosis, I would think that sooner
than later would be better, obviously. But since he was – the dates
were coming up, he was insistent upon him leaving within four to six
weeks, eight, that it should be done soon.
Q: Did you believe that the oncology conduct should be done sooner
than four to six weeks?
A: No, that – that would be a reasonable amount of time to get someone
in to an oncologist . . . I would recommend within the 60-day time
frame, yes.
Hankey v. York County Prison, No. 3:05-CV-0136, at 20-21 n.8 (M.D. Pa. Jul. 8, 2009).
10
(App. at 39.)5
Of course, Mr. Rohrbaugh’s expressed wish to delay further care cannot be
divorced from Dr. Baker’s duty to evaluate Mr. Rohrbaugh’s condition and educate Mr.
Rohrbaugh so that he can make informed decisions about his health. Although Estelle
“affords considerable latitude to prison medical authorities in the diagnosis and treatment
of the medical problems of inmate patients,” such diagnosis and treatment must be
sufficiently informed so as not to suggest deliberate indifference on the part of Dr. Baker.
See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Here,
looking at the evidence in this case as a whole, it is clear that the high bar for deliberate
indifference has not been reached.

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Appellant makes much of the fact that Mr. Rohrbaugh never signed a DC-4626
form, and argues that because Dr. Baker never ordered an oncology consult, Mr.
Rohrbaugh was never actually in a position to formally refuse the consult. This argument
does not assist Appellant in making out a deliberate indifference claim. The evidence
reflects that Mr. Rohrbaugh clearly expressed his wish to delay meeting with an
oncologist until after his release from prison, and Dr. Baker honored that wish after
confirming that Mr. Rohrbaugh would be free to consult an oncologist in just a few
weeks. Whether Mr. Rohrbaugh’s wish should have been formalized in a DC-462 form –
or whether Dr. Baker should have scheduled an oncology consult prior to Mr.
Rohrbaugh’s release, despite Mr. Rohrbaugh’s express wishes to the contrary – may
reflect on the quality of Dr. Baker’s exercise of professional judgment and thus be
relevant to a medical malpractice claim. However, these inquiries do not alter our
resolution of the issues presented on appeal.
11
The evidence reflects that in a period of less than four months, Dr. Baker reviewed
an initial pathology report of Mr. Rohrbaugh’s lesion; referred Mr. Rohrbaugh to a
surgeon for further examination and treatment; ordered an excisional biopsy of Mr.
Rohrbaugh’s mole; reviewed another pathology report of Mr. Rohrbaugh’s lesion; and
followed-up with Mr. Rohrbaugh and the surgeon regarding Mr. Rohrbaugh’s future
treatment, including the recommended oncology consult. When Mr. Rohrbaugh
expressed his wish to delay further treatment until after his upcoming release from prison,
Dr. Baker followed up with prison guards to confirm when Mr. Rohrbaugh was scheduled
to be released, so that Mr. Rohrbaugh could seek an oncology consult in a timely manner
after his release. Dr. Baker met with Mr. Rohrbaugh yet again, to discuss the follow-up
care that Mr. Rohrbaugh should seek upon his release, including the oncology consult,
and to give Mr. Rohrbaugh copies of documents that might be helpful for his follow-up
care. Under these circumstances, the subjective component of the deliberate indifference6

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12
test has not been met. There is nothing to suggest that Dr. Baker was reckless in his
decision to allow Mr. Rohrbaugh to wait until his release before consulting with an
oncologist, or that Dr. Baker consciously disregarded a substantial risk of serious harm to
Mr. Rohrbaugh’s health. See Rouse, 182 F.3d at 197. A reasonable jury could not
conclude, on the evidence presented, that Dr. Baker’s state of mind rose to the level of
“obduracy and wantonness” necessary for an Eighth Amendment claim. Whitley, 475
U.S. at 319.

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Appellant relies most heavily on West v. Keve, 571 F.2d 158 (3d Cir. 1978) and7
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir. 1979), which make
clear that inadequate medical care, uninformed medical decisions, and failures to arrange
consultations with a specialist may, in some circumstances, suggest deliberate
indifference. See West, 571 F.2d at 162. However, the medical treatments provided to
the patients in West and Pierce were markedly less adequate to address the medical
conditions at issue in those cases, such that the evidence could support a finding of
deliberate indifference on the part of the treating professionals. By contrast, here the
evidence regarding the medical care given to Mr. Rohrbaugh, and the evidence regarding
the state of mind of Dr. Baker, cannot support a deliberate indifference claim. The
evidence here reflects that Dr. Baker did in fact exercise his professional medical
judgment throughout Mr. Rohrbaugh’s treatment, such that Mr. Rohrbaugh’s Eighth
Amendment claim cannot stand. Whether Dr. Baker’s exercise of medical judgment met
the requisite standard of care is, of course, a different question, and one integral to Mr.
Rohrbaugh’s state law medical malpractice claim.
Appellant also cites Durmer v. O’Carroll, in which this Court concluded that an
inmate had a viable deliberate indifference claim against the prison physician where the
inmate, who had suffered a stroke, had been denied physical therapy for 18 months while
he was referred from one consultant to another. See 991 F.2d at 67-68. This case is
distinguishable from Durmer, however, in that Dr. Baker knew that Mr. Rohrbaugh was
scheduled to be released within just a few weeks – a period that Dr. Baker thought, in his
professional judgment, was reasonable to delay in seeing an oncologist. The delay here
was significantly shorter than the one in Durmer, and does not suggest a subjective
“deliberate indifference” state of mind on the part of Dr. Baker. Moreover, here the delay
was not actually occasioned by Dr. Baker, inasmuch as Dr. Baker was ready to arrange a
consult with an oncologist at the time that Dr. Esper recommended it, and Mr. Rohrbaugh
himself chose to defer the consultation.
13
Appellant chooses a handful of cases in which this Court has addressed the7
contours of deliberate indifference claims and has held that under some circumstances,
delaying treatment for non-medical reasons can form the basis for an Eighth Amendment
claim, and a physician’s state of mind can be inferred by the actions of that physician.
However, neither the fact patterns nor the discussion of the law in any of those cases
suggests that the subjective standard for deliberate indifference is met in this case. Mr.

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Rohrbaugh’s claim amounts to a disagreement over whether he received the best, or the
quickest, or the most appropriate care for his condition, and such a disagreement over
medical treatment does not rise to the level of deliberate disagreement. See Spruill v.
Gillis, 372 F.3d 218, 235 (3d Cir. 2004). It may be that Appellant will pursue the state
law cause of action against Dr. Baker, but such a claim sounds in medical malpractice and
not in the Eighth Amendment.
IV. Conclusion
For the foregoing reasons, we will affirm the District Court’s Order.

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