13 March 2008

ICE "Beyond Cruel"

The immigration system has no natural advocate for immigrants in the political system, and as a result, has developed a culture of indifference. The results are sometimes deadly, as the U.S. District Court notes in recent court ruling finding in favor of the survivors of an immigrant in a suit against the federal government and the involved federal officials, which the government parties moved to dismiss.

The Facts

The Court recounts the facts, which are well documented -- most come from documents disclosed by the federal government, and the remaining relevant facts are corroborated by third party medical records:

On March 27, 2006, Plaintiff Francisco Castaneda – an immigration detainee – informed the Immigration and Customs Enforcement (“ICE”) medical staff at the San Diego Correctional Facility that a lesion on his penis was becoming painful, growing in size, and exuding discharge.

On site doctors contacted "the Division of Immigration Health Services (“DIHS”), requesting approval for a biopsy and circumcision" because there was strong concern that the problem was penile cancer. It was denied, were further efforts to have that decision changed.

Plaintiff has submitted thirty-three exhibits of Defendants’ own official medical records documenting their knowledge of the fact that several physicians had concluded that Plaintiff’s lesion was very likely penile cancer, and that he needed a biopsy – a straightforward procedure – to rule cancer out. These documents show that nevertheless, Defendants refused to grant Plaintiff this simple procedure for almost eleven months, even while they noted that his pain and suffering were severe and increasing, that his penis was emitting blood and discharge, and that a second growth had developed. Therefore, if Plaintiff’s evidence proves true, from the first time Castaneda presented with a suspicious lesion in March 2006 through his release in February 2007, the care afforded him by Defendants can be characterized by one word: nothing.

As a result he suffered “'ten months of pain, bleeding, anxiety, loss of sleep, and humiliation while in ICE’s custody, the amputation of his penis, and nearly a year of grueling chemotherapy,' not to mention his eventual death." . . .

As the opinion notes (citations to the record omitted):

[A] biopsy was finally scheduled for early February. However, a few days before the procedure, Castaneda was abruptly released from ICE custody. Castaneda then went to the ER of Harbor-UCLA Hospital in Los Angeles on February 8, 2007, where he was diagnosed with squamous cell carcinoma. His penis was amputated on Valentines Day, 2007. . . . Harbor-UCLA confirmed that Castaneda had metastatic cancer. Castaneda began undergoing chemotherapy at Harbor-UCLA. However, the treatment was not successful, and on February 16, 2008, Mr. Castaneda died.

The Court's Analysis

The Justice Department argued (among other points) that the immigrant detainee had not alleged enough to state a claim against the government at all. In response, the Court ruled that:

The evidence that Plaintiff has already produced at this early stage in the litigation is more thorough and compelling than the complete evidence compiled in some meritorious Eighth Amendment actions. . . . the evidence suggests that not only did the individual Public Health Service Defendants ignore doctor recommendations to provide Castaneda with a simple procedure, they may also have lied about those recommendations.

The Court concluded by noting that:

If Plaintiff’s evidence [Ed. consisting almost entirely of federal government documents produced by the government] holds up, the conduct that he has established on the part of Defendants is beyond cruel and unusual.16

FN 16: After all, Plaintiff has submitted powerful evidence that Defendants knew Castaneda needed a biopsy to rule out cancer, falsely stated that his doctors called the biopsy “elective”, and let him suffer in extreme pain for almost one year while telling him to be “patient” and treating him with Ibuprofen, antihistamines, and extra pairs of boxer shorts. Everyone knows cancer is often deadly. Everyone knows that early diagnosis and treatment often saves lives. Everyone knows that if you deny someone the opportunity for an early diagnosis and treatment, you may be - literally - killing the person. Defendants’ own records bespeak of conduct that transcends negligence by miles. It bespeaks of conduct that, if true, should be taught to every law student as conduct for which the moniker “cruel” is inadequate.

Particularly culpable in the Court's summary of the records was Esther Hui, M.D. at the Division of Immigration Health Services who played a central role in overriding the medical judgment of the treating physician and denying care despite having detailed knowledge of the case and the medical skills to evaluate that information.

Also troubling was the conduct of Claudia Mazur, a DIHS nurse, who appeared to have lied about what the doctor's had recommended in a denial report of October 26.

As the Court explains, this was essentially a case of murder by spreadsheet (citations to the record omitted):

Dr. Hui and the DIHS included this false characterization in official reports despite the fact that a TAR recognized that both doctors “strongly recommend admission, urology consultation, surgical intervention via biopsy,” and despite that fact that [Ed. treating] Dr. Wilkinson reported that he had spoken to “the physicians at the correctional facility” and “[t]hey understand the need for urgent diagnosis and treatment.” Indeed, Dr. Hui herself recognized in a report that Castaneda might have cancer but “[s]ince this is an elective outpatient procedure, we decided that we would not admit him [to the hospital to have the procedure] at this time.” Plaintiff’s evidence also suggests why Dr. Hui was so interested in characterizing the surgery as elective; “as such the Federal Government will not provide for such surgery.”15 Plaintiff has thus submitted compelling evidence that Defendants purposefully mischaracterized Plaintiff’s medical conditions as elective in order to refuse him care. Dr. Wilkinson reported that Defendants refused to admit Castaneda to the hospital for a biopsy because they wanted a “more cost effective” treatment. Official records document Defendants’ circular logic that because they would not allow him to have the biopsy, “he DOES NOT have cancer at this time”; because he does not have cancer, he therefore does not need a biopsy. In other words, as long as they could label Castaneda’s condition elective, Defendants could remain willfully blind about his lesion and avoid having to pay for its treatment.

FN 15 The Court has serious questions as to the constitutionality of a policy of refusing to pay for all medical treatment that can be characterized as “elective” because, as evidenced by this case, the label fails to identify accurately who needs care. DIHS labeled the treatment in this case “elective” even while acknowledging that Castaneda’s condition was so “severe” that he would need a “resection” - full or partial removal of the penis. Indeed, Plaintiff’s evidence suggests that Dr. Hui defined “elective” so broadly that she believes the term to encompass life-saving treatment.

1 comment:

andrew said...

The trial court ruling was affirmed by the 9th Circuit Court of Appeals and then reversed by the U.S. Supreme Court at 559 U.S. 799 (2010), which held that absolute immunity applied to public health service officers acting in their official duties. Thus, the evil Esther Hui, avoided any civil liability for her actions in the end.