Metropolitan News-Enterprise


Friday, October 3, 2008


Page 1


Ninth Circuit Revives Suit Against U.S. Over Alien’s Cancer Death

Court Says Public Health Service Doctors Can Be Sued Under Bivens




Public Health Service doctors who willfully fail to render appropriate diagnosis and treatment may be sued in a constitutional tort action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Agreeing with a district judge that the Federal Tort Claims Act does not provide an “equally effective remedy” for such violations, the panel affirmed an order denying a motion by three officers and two civilian doctors employed by the service to dismiss on the grounds of absolute immunity.

 The suit was brought last year in the U.S. District Court for the Central District of California by Francisco Castaneda, whose survivors were substituted as plaintiffs following his death this past February. The complaint, naming a number of state and federal officials and medical personnel as defendants, alleges that the 36-year-old Castaneda died as a result of the defendants’ unwillingness to conduct diagnostic procedures that would have resulted in timely discovery that lesions on his penis were cancerous.

State Prisoner

Castaneda was a state prisoner from December 2005 to March 2006, when he was turned over to Immigrations and Customs Enforcement and held at the San Diego Correctional Facility. The complaint alleges that despite his numerous complaints and obvious symptoms, and despite a prescription for a biopsy, he was told that he probably had genital warts and that while surgery “might be recommended long-term,” the government did not consider his condition to be “threatening to life, limb, or eyesight” and therefore would not provide the operation.

In January 2007, a year after the biopsy was prescribed, and after he was transferred to a facility in San Pedro, Castaneda was seen by another civilian doctor, who again ordered a biopsy and diagnosed a fungating lesion that was “most likely penile cancer.” ICE, however, chose to release him from custody, enabling him to seek treatment on his own.

Confirmation that he had cancer led to the amputation of his penis, followed by months of chemotherapy, prior to his death.

Constitutional Tort

Among the causes of action pled by the plaintiffs was one under Bivens, which holds that the victim of a constitutional violation by agents of the federal government may sue those agents for damages. The remedy was limited, however, under Carlson v. Green, 446 U.S. 14 (1980), holding that such an action will not lie if there are “special factors counselling hesitation in the absence of affirmative action by Congress” or an “equally effective” statutory remedy that Congress has declared as a substitute for a constitutional tort action.

The PHS defendants moved to dismiss, arguing that they were absolutely immune under Bivens because the plaintiffs had an equally effective remedy under the Federal Tort Claims Act. District Judge Dean Pregerson denied the motion, saying that Congress has not expressed an intent for the FTCA to be a substitute for a direct action under the Constitution, nor would such a remedy be as effective as a Bivens action.

Ninth Circuit Opinion

Judge Milan D. Smith Jr. agreed, noting that the FTCA applies state tort law and that state medical malpractice law in recent years, both in California and nationally, has become particularly less favorable to plaintiffs.

“Were Plaintiffs’ sole remedy for the alleged mistreatment and death of Castaneda a common law malpractice suit against the United States, as the PHS Defendants argue, the damages they could recover, and the quasi-substantive procedural hurdles they would have to surmount to bring suit in the first place, would vary from state to state even more now than in 1980,” when Carlson was decided, Smith wrote.

Smith also noted that there has been discussion within congressional committees as to whether to enact new laws regarding medical malpractice by federal employees, and that Congress has not seen fit to enact laws that would explicitly substitute for the constitutional tort remedy declared by Bivens.

Judges Stephen Reinhardt and Marsha S. Berzon concurred in the opinion.

The PHS defendants were represented on appeal by John K. Rubiner of Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, P.C., and by lawyers from the Washington, D.C. firm of Feldesman Tucker Leifer Fidell LLP.

The plaintiffs’ attorneys were from Public Justice, P.C. in Washington and  the Oakland firm of Willoughby Doyle LLP.

The case is Castaneda v. Henneford, 08-55684.


Copyright 2008, Metropolitan News Company