JOHNSTOWN – A federal judge won't grant summary judgment to a doctor who is being sued after treating an inmate at the Correctional Institution at Laurel Highlands.

Judge Kim Gibson, of the Western District of Pennsylvania, denied Dr. Barry Eisenberg's motion for summary judgment Feb. 5. He's being sued by Stephanie McGovern and Bryan McGovern, who were co-administrators of the estate of Michael McGovern.

Other defendants in the case were listed as Correct Care Solutions LLC; Csaba Mihaly, M.D.; Hans Resinger, PA; Eisenberg, DO; and Jawah Salameh, MD. They were all dismissed on Jan. 15.



Gibson

The case stemmed from the estate’s claims that the late Michael McGovern's Eighth Amendment rights were violated and the defendants committed medical malpractice.

"The crux of Mr. McGovern's second amended complaint is that defendants were dilatory in their diagnosis and treatment of cancer initially found in Mr. McGovern's left mandible," the opinion stated.

Under Pennsylvania law, the plaintiffs claimed the physician owed a duty to the patient and he allegedly breached that duty. The patient allegedly suffered harm and damages because of the breach.

"Here, the record is sufficient for a reasonable jury to find that all of these elements are satisfied,’’ Judge Kim R. Gibson wrote in her opinion.

Back in October of 2014, McGovern sought treatment after complaining of a mass on his left jaw, and he was seen by the correction facility’s doctor Mihaly. In his notes, Mihaly wrote that McGovern’s immune system was compromised because he was HIV-positive.

Mihaly diagnosed McGovern as suffering from a "submandibular gland adenocarcinoma until proven otherwise." In his notes, Mihaly suggested that McGovern should have an oncology consultation even though he did not specifically order one.

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After a series of other doctor visits, McGovern saw Eisenberg in December. The opinion states that Eisenberg made an addendum to his notes, saying that McGovern’s prognosis was not good and admitted that every day matters when dealing with cancer.

"Yet, Dr. Eisenberg took what could, arguably, be interpreted to be as an impermissible 'bystander' role by leaving the care of Mr. McGovern to the other defendants and not taking any independent action to provide for medical treatment in accordance with what Plaintiffs' experts identify as the appropriate standard of care," the opinion states.

In March 2015, McGovern went to the UPMC Department of Otolaryngology in Pittsburgh, where the doctor stated that McGovern likely suffered from a stage IV cancer, the opinion states. The opinion stated that when McGovern was being treated in December of the previous year, he likely had stage II cancer. McGovern died Jan. 12, 2016.

In their arguments, the plaintiffs used a series of expert reports. They claimed that Eisenberg breached an independent duty to McGovern, claiming the doctor failed to take adequate action to expedite the patient's testing and treatment.