Posted by: Lawyer Sanders | January 25, 2010

Kentucky environmental attorney Sanders says US Supreme Court will determine whether Public Health Officials are immune to liability when violating the US Constitution.

Mr. Francisco Castaneda, a Salvadoran immigrant, spent eight months in custody on a charge of possession of methamphetamine with intent to sell, then was transferred to immigration custody because he did not have legal residency.  He later died in custody after officials from the U.S. Public Health Service (“PHS”) refused to treat him.    

Upon entering the San Diego Correctional Facility, Castaneda notified medical staff that he suffered from a penile lesion.  Despite this warning of his medical condition, Mr. Castaneda received no treatment or diagnosis of the problem while detained. When he was finally released to get a biopsy of the lesion he was informed it was cancerous, and his penis was surgically removed a few days later. Castaneda died of cancer in February 2008.   His family sued the PHS officials on behalf of his estate and themselves.

The medical personnel who were responsible for providing proper medical care to Castaneda were officers of the PHS assigned through Immigration and Customs Enforcement’s (ICE) Division of Immigration Health Services (DIHS). 

The government had refused for 11 months to authorize a biopsy for a growing lesion, even though voluminous government records showed that several doctors said the test was urgently needed, given Castaneda’s condition and a family history of cancer — according to the Court’s stinging written opinion. 

The facts of the case are totally shocking.  The U.S. district judge slammed the government and wrote that the PHS officials’ conduct, “transcends negligence by miles” and appears to be “one of the most, if not the most, egregious Eighth Amendment violations the Court has ever encountered.”  

Thus, rather than test and treat Castaneda, government officials told him to be patient and prescribed antihistamines, ibuprofen and extra boxer shorts.  In summary, the judge wrote, the care provided to Castaneda “can be characterized by one word: nothing.”

While the federal government admitted in April 2008 that its negligence was responsible for Castaneda’s death, the government is claiming that, under federal law, individual PHS officials are immunized against lawsuits alleging that they failed to provide medical care that meets constitutional minimums.

The PHS officials claim that Mr. Castaneda’s surviving family members and estate are limited to a negligence suit against the United States under the Federal Tort Claims Act (FTCA) because a provision of the Public Health Service Act immunizes them from lawsuits for constitutional violations, commonly known as Bivens actions. 

The FTCA – which applies to all federal employees and which is incorporated within the Public Health Service Act – expressly states that “it does not extend or apply to a civil action against an employee of the Government … for a violation of the Constitution of the United States.”   Thus, it appears that the plain wording of the FTCA does not offer immunity to PHS officials from liability for violating the Constitution. 

Both the district court and the U.S. Court of Appeals for the Ninth Circuit unanimously rejected the PHS officials’ bid for immunity. The Ninth Circuit said that the PHS defendants “provided no explanation for why Congress would want to provide these persons with the privilege, shared with no other federal employees, to violate the Constitution without consequence.”   

Still, the matter remains on appeal.  The U.S. Supreme Court will decide whether U.S. Public Health Service (PHS) officials can be sued for violating the Constitution.  Oral arguments in the case are scheduled in March 2010.


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