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Tracking new cases: Immunity for U.S. health aides?

NOTE: From time to time, the blog will examine significant new cases filed at the Supreme Court.  This post is one in that series.  Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.


In a case with potentially broad impact on health care provided in federal facilities, five government medical officers who work at various levels in the  U.S. Public Health Service have asked the Supreme Court to revive their immunity to damage lawsuits for medical incidents that lead to injury or death.  Only the federal government itself, not an individual care provider, should be liable, according to the two new appeals — Migliaccio, et al., v. Castaneda, et al. (08-1529) and Henneford v. Castaneda, et al. (08-1547).

The two petitions (found here and here, with appendices) were already strong candidates for Supreme Court review, because of a direct conflict among federal appeals courts on the immunity question. But those chances improved July 10, when the federal government provided firm backing for review.  The U.S. Solicitor General’s amicus brief is here.   (The U.S. seldom joins in urging Court review of a case when it is not a direct party, unless the Court asks for its views.  However, the government was a direct party in this case when it was in lower courts, later turning over legal defense of the five officers to private attorneys. It then opted to file its brief on its own.)

The Ninth Circuit Court, in a decision that conflicts directly with decisions by five other Circuit Courts, ruled that a 1970 law that allows damage lawsuits based on harms allegedly done by Public Health Service officers only against the government itself, and not against individual care-givers, does not bar lawsuits against individuals based on claimed violations of constitutional rights (so-called “Bivens actions,” for the Supreme Court’s 1971 decision in Bivens v. Six Unknown Agents).

The 1970 law says that the Federal Tort Claims Act — providing significantly narrower remedies thatn a Bivens action could — is to the sole remedy for injury or death that result from performance of medical functions by any officer or employee of the PHS.   A federal tort case is aimed only at the government, and does not allow, for example, for punitive damages, which are available in a successful Bivens case.

If, as seems likely, the Supreme Court agrees to hear the new cases, the outcome could produce a major ruling that affects both sides of the caregiver-patient relationship in federal medical facilities — spelling out patients’ remedies for malpractice or negligence, and clarifying potential liability of the medical staffs.

While the 1970 law speaks only of remedies against PHS officers and employees, the Solicitor General has noted in her brief that PHS medical personnel are assigned widely — to provide care to immigrants, prison inmates, reservation Indians, and federal marshals, as well as medical services in foreign countries.  The principle at stake, the Solicitor General added, also could affect liability for medical incidents provided by other entities that are covereed by similar immunity laws.

The case that provides the test involved an immigrant who had been serving a prison sentence in California state prison, but later was transferred to federal immigration custody to face deportation.  While in prison and later, he complained repeatedly to medical personnel about lesions on his penis.  He later claimed in a lawsuit against PHS officers, filed under Bivens, that they had violated his constitutional rights for failure to treat his serious medical condition, denying treatment, and acting with indifference to his needs.  His condition ultimately was diagnosed, by a private doctor, as cancer.  He died while the lawsuit was pending, and it was then continued by his estate and his daughter.

In separate petitions, the five PHS officers, ranging from an individual doctor to the head of the immigration health services division of the PHS, argued that the case against them raises an important and recurring issue.  They both noted, as did the Solicitor General, that the Supreme Court itself has cited the 1970 law as an example of where Congress had spoken plainly in favor of immunity for federal officers (citing Carlson v. Green, 1980).

The 1970 law, the Henneford petitions contends, was designed to give PHS medical officers incentives to “vigorously pursue” their medical mission “without risk of exposure to morale-sapping litigation or liability.”  The act, it adds, also sought to enhance PHS’s ability to recruit better qualified medical personnel.

The Supreme Court is expected to act on the petitions soon, perhaps at its initial Conference Sept. 29 before the opening of the new Term Oct. 5.