Metropolitan News-Enterprise


Monday, July 30, 2012


Page 1


C.A. Throws Out Verdict in Prisoner’s Wrongful Death

Panel Finds Failure to File New Claim After Inmate Died Fatal to Cause of Action


By a MetNews Staff Writer


The Court of Appeal for this district has thrown out a $1.7 million verdict resulting from the allegedly wrongful death of a state prisoner who died from skin cancer.

Div. Three held Thursday that, although Francisco Castaneda filed a timely and legally sufficient claim against the state prior to his death, the failure of his estate to file a wrongful death claim bars its action.

The court also held that the doctrine of equitable estoppel does not bar the state, which raised the claims-presentation issue after the deadline for the plaintiff to seek leave to file a late claim, from asserting the matter. And the plaintiff could not prevail in any event, Justice Richard Aldrich wrote, because the state is immune from medical malpractice liability.

According to the evidence, Castaneda was in local custody awaiting transfer to state prison after being convicted of drug possession with intent to sell, when he first complained of pain and informed medical staff of a two-year-old growth on his penis.

He arrived at North Kern State Prison in December 2005 and was examined twice within a three-week period. The second time, the doctor—who was not a specialist—noted that consultation with a urologist was in order so as to rule out cancer or veneral disease.

He marked the referral form “routine,” which under DOC policy required that he be seen within 90 days. The referring doctor later testified that the condition was not actually routine, but that the alternative—marking the form “urgent,” which would require that he be seen within 72 hours—was unnecessary.

He was never seen by a urologist at North Kern, the chief physician there later explained, because he was soon transferred to the Richard J. Donovan Correctional Facility in San Diego. He arrived there in January 2006 and was seen by a nurse practitioner less than a month later, well within the 90-day referral period.

The nurse practitioner noted a lesion that needed “excision and biopsy.” A urology appointment was scheduled for late March 2006, but three days before it was to take place, Castaneda was released to immigration authorities, spending 11 months in federal custody.

Within nine days of his release, he was diagnosed by doctors at Harbor-UCLA medical center with a form of carcinoma. Penile amputation failed to halt the spread of the cancer, and he died in February 2008.

A month before Castaneda’s death, his attorneys—who also filed a still-pending federal action—filed suit in Los Angeles Superior Court. The state compensation commission had previously denied their statutory tort claim, which was based on Government Code Sec. 845.6.

The section waives sovereign immunity for failure to summon immediate medical assistance for a prisoner.

About 16 months after he died, his counsel filed an amended complaint. They named Castaneda’s sister as substitute plaintiff with respect to the surviving claim, and added his daughter Vanessa, through her mother and guardian, as plaintiff on a second cause of action, for wrongful death.

The state moved for judgment on the pleadings, arguing—among other things—that the lack of a separate tort claim on behalf of the wrongful death plaintiff barred the action. Judge Thomas I. McKnew, however, ruled that the state was estopped from asserting the defense, allowed the amendments, and permitted the case to proceed to trial, where jurors awarded over $230,000 to the estate and $1.5 million to Vanessa.

Aldrich, however, said there was no estoppel. The state, he noted, had done nothing to mislead the plaintiff or her counsel—the same lawyers who had filed the decedent’s tort claim—into believing that they were not required to file a separate tort claim on behalf of the estate.

The requirement of a separate claim is significant, because a wrongful death claim involves different legal principles, on which the claims board might reach a different result.

Besides, he noted, equitable estoppel in government claims cases can only arise from the conduct of the responsible agency, not its lawyers.

Turning to the substance, Aldrich noted that Castaneda was promptly seen by a doctor upon arrival at North Kern, and by a nurse practitioner when he got to Donovan. His claim, therefore, is in reality one for medical malpractice, not failure to summon assistance, and the state retains sovereign immunity from medical malpractice claims under Sec. 845.6., the justice wrote.

Attorneys on appeal were Deputy Attorneys General Richard J. Rojo, Mark V. Santa Romana, and Daniel Helfat for the state and Adele P. Kimmel of Public Justice and Conal Doyle of Willoughby Doyle for the plaintiffs.

The case is Castaneda v. Department of Corrections and Rehabilitation, 12 S.O.S. 3715.


Copyright 2012, Metropolitan News Company