Some federal doctors immune from liability
■ A column analyzing the impact of recent court decisions on physicians
By Amy Lynn Sorrel — covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted June 14, 2010.
A recent U.S. Supreme Court decision has stirred questions over just how far legal immunities for certain government doctors should extend.
On May 3, the high court ruled that the family of an immigrant detainee could not sue an individual physician working in the federal detention facility for medical neglect.
Francisco Castaneda alleged that a U.S. Public Health Service doctor overseeing his treatment refused his repeated requests for a biopsy of what turned out to be a cancerous growth that led to the man's death. He said that internist Esther Hui, MD, and a PHS officer ignored his medical needs, violating his constitutional rights.
But justices concluded unanimously that federal liability protections broadly prohibited lawsuits against employees of the PHS, which provides medical care in immigration detention centers and certain federal prisons. The family was limited to bringing its medical negligence suit against the government, the court said in Hui v. Castaneda.
The case garnered significant attention from physicians on both sides of the debate. Some organizations, including the American Medical Association, argued in friend-of-the-court briefs that subjecting PHS personnel to additional liability exposure would harm the organization's ability to recruit and retain qualified doctors. Others disputed the availability of additional protections for PHS workers and noted in court briefs that government physicians working in other contexts are subject to liability for constitutional violations.
The Supreme Court case stems from Castaneda's incarceration for drug charges in California in 2005. While imprisoned, he complained of a painful penile lesion, court records said. He was transferred into the custody of U.S. Immigration and Customs Enforcement in March 2006 and again reported his worsening condition several times during his 11-month detention in a San Diego facility.
The 35-year-old Salvadoran was examined by Dr. Hui and a physician assistant under her supervision, and both determined that a biopsy was needed to rule out the possibility of cancer, legal documents show. A formal request for an outside biopsy and urology consult for Castaneda was not approved by the Dept. of Immigration Health Services for two months.
Once Castaneda's treatment request was authorized, he was sent to three outside specialists, including oncologists and urologists, all of whom recommended a biopsy and possible surgical intervention to treat what they believed was likely penile cancer or a dangerous progressive viral infection. Castaneda had a family history of cancer.
Some of the specialists offered to admit Castaneda to a hospital to perform the biopsy and possible circumcision. But Dr. Hui and other PHS personnel said Division of Immigration Health Services policy required the procedure to be done on an outpatient basis, and denied the offers to admit Castaneda, court records show.
Meanwhile, Castaneda's condition deteriorated further. He was treated with ibuprofen, antihistamines and antibiotics. After a fourth specialist recommended a biopsy in January 2007, the procedure was scheduled. However, immigration authorities released Castaneda from custody in Feb. 5 of that year, just days before the procedure was to occur.
Castaneda was diagnosed with squamous cell carcinoma. He began chemotherapy and had his penis amputated. The treatment was unsuccessful, and he died in February 2008.
Constitutional claims raised
Three months before he died, Castaneda sued the federal government for medical negligence and filed separate constitutional claims against Dr. Hui for "deliberate indifference to his serious medical needs." He alleged that Dr. Hui and others took no steps to ensure that he received proper care and that the actions amounted to a violation of the 8th Amendment's prohibition on cruel and unusual punishment. Castaneda's daughter and sister took over the lawsuit after his death.
Dr. Hui denied any wrongdoing. Her lawyer, Steven J. Renick, said Castaneda's care involved a number of medical professionals, both public and private, and was subject to government authorization processes.
Dr. Hui asked the court to dismiss the case, arguing that the 1970 Emergency Health Personnel Act, which covers PHS officials, gives the individuals absolute immunity from any civil actions, including constitutional claims. The protections, she argued, limit plaintiffs to seeking recourse against the U.S. under the Federal Tort Claims Act.
But the Castanedas pointed to a 1971 Supreme Court decision in Bivens v. Six Unknown Fed. Narcotics Agents, which held that federal employees, while immune from negligence suits, are not protected from constitutional actions. They argued that the exception also applied to PHS doctors.
It boils down to accountability, said Adele P. Kimmel, an attorney for the Washington, D.C.-based public interest law firm Public Justice, which represented the Castanedas.
"An individual employee who commits a constitutional violation should be held personally accountable, and that is the case for all other federal employees," she said. "When you are talking about a constitutional violation, you are talking about an intentional act," and plaintiffs should be entitled to additional damages.
But the high court said the Federal Tort Claims Act was intended to be the "exclusive" remedy for plaintiffs for any civil actions involving PHS doctors. If Congress intended to include any exceptions to that rule, it could have done so explicitly, justices said, noting that other federal statutes expressly provided for constitutional actions against federal employees.
"There was a specific decision by Congress at the moment to say this was good policy ... to encourage people to join the PHS," said Renick, of Manning & Marder, Kass, Ellrod, Ramirez LLP in Los Angeles. He added that it was up to lawmakers, not the courts, to change the policy.
Justices were mindful of arguments that allowing constitutional claims against PHS personnel may be "necessary to ensure an adequate standard of care in federal detention facilities. ... We are required, however, to read the statute according to its text," Justice Sonia Sotomayor wrote. The high court also noted that the government admitted liability for medical negligence in Castaneda's case.
A level playing field?
Some physicians say the Supreme Court ruling preserves safeguards that Congress put in place to help attract doctors to what often are low-paying jobs by relieving them of the burden and expense of insuring against risks that can arise in such difficult settings.
In cases involving prison care, constitutional claims often are tacked on to medical liability claims because damages are uncapped, said Timothy B. Hyland. He represented an association of PHS officers, the AMA and other military and civilian medical groups who joined a friend-of-the-court brief in the case.
"These are some of the lowest-paid folks in the medical profession, and yet the price of coverage against these sorts of claims would be the highest," said Hyland, of Stein Sperling in Maryland.
He acknowledged that constitutional violations are not won easily. "But so much of the consideration for these physicians is not having to be sued in the first place," which still requires time and expense, whether or not the claim is successful.
However, other federally employed physicians performing the same kind of work in prisons and elsewhere do not enjoy the same immunities, simply because they are not PHS employees, said Jonathan S. Franklin, who works in Fulbright & Jaworski LLP's D.C. office. He filed a brief for a group of doctors who have served in and overseen various detention centers across the country on behalf of federal and state agencies.
"These doctors often work side by side with PHS doctors in the same facilities," Franklin said. "Congress could not have intended to single out only PHS doctors."
Nor has the lack of such protections elsewhere adversely affected detainee medical care, he added. "If somebody is going to be deterred from working because they might be subject to a claim that requires an extreme departure from the normal standards, that's not somebody you want to be hiring anyway. ... All other doctors are subject to that standard and go about discharging their duties properly."
The Castanedas' battle is not over, Kimmel said. They will pursue their negligence claim against the federal government and constitutional claims against other non-PHS officials. No hearing dates have been scheduled.
The family also has a separate state case pending against California prison authorities. That trial is expected to begin in October.
Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.