Aztlan-Network-News Blog: Court to decide if feds liable for cancer mistake

Court to decide if feds liable for cancer mistake

By JESSE J. HOLLAND (AP) – 8 hours ago

WASHINGTON — The Supreme Court will decide whether the family of a now-deceased immigrant who was denied medical care for cancer while in custody can sue federal medical officials for damages.

The case could have far-reaching implications for doctors, nurses and other medical personnel working for governments.

Francisco Castaneda, a Salvadoran immigrant, was denied a biopsy for a painful lesion on his penis for 11 months while in prison, despite the recommendation of several doctors. He was later diagnosed with penile cancer, had his penis amputated and died at age 36.

The federal government has admitted liability for medical negligence. Castaneda and his estate also sued individual medical officials for damages, but the government says the law requires any action to come under the Federal Torts Claim Act.

Under that law, damages cannot be awarded against individuals, punitive damages are not allowed, and the case would not be heard before a jury. The medical officials named asked a federal judge and the 9th U.S. Circuit Court of Appeals in San Francisco to throw out the lawsuits, but the lower courts refused.

The medical officials appealed to the Supreme Court, saying other federal courts have forced similar lawsuits to be filed under the Federal Torts Claim Act.

The Obama administration argues that making government medical officials personally liable for damages would make it harder to recruit people to work for the Health and Human Services Department's Public Health Service and other government medical jobs.

"The court of appeals' decision will likely have an adverse impact on the government's ability to recruit, hire and retain medical personnel for the PHS, and may affect other federal entities that have medical missions covered by similar immunity statutes." Solicitor General Elena Kagan said in court papers.

Castaneda spent eight months in state prison after being convicted in 2005 of possessing methamphetamine with intent to distribute. He complained about the lesion while at the San Diego Correctional Facility, and again when he was transferred to immigration custody in San Pedro, Calif., because he was in the United States illegally.

Castaneda informed Immigration and Customs Enforcement staff in 2006 that a "lesion on his penis was becoming painful and growing," a federal judge said. But a government doctor would not admit him to a hospital, calling a biopsy "an elective outpatient procedure."

After the American Civil Liberties complained in 2007, a doctor performed a biopsy and said Castaneda likely had cancer.

ICE decided to release him 11 days later. Castaneda went to a hospital and was diagnosed with metastatic squamous cell carcinoma. Less than a week later, his penis was amputated. He died a year later.

The case will be argued in front of the court in 2010.

The cases are Migliaccio v. Castaneda, 08-1529 and Henneford v. Castaneda, 08-1547.

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