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Governmental Immunity

Brief - Governmental Immunity for Public Health Service Physicians - Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000)

This is an important case construing the immunity from civil litigation for physicians serving under the Public Health Service Act.  It is also a good review of the basic standards for liability for improper medical services in a federal prison.  Plaintiff was a pre-trial detainee held in a federal prison.  At the time, plaintiff was a pre-surgery male to female transsexual who was on estrogen therapy to prepare her for her role change.  When admitted, she explained her condition to a physician's assistant and was permitted to keep the 10 estrogen tablets she had with her for self-administration.  A few days later she was seen by the prison physician, Dr. Barraco.  He explained that he did not know anything about the treatment of transsexuals, but pursuant to the Bureau of Prisons Health Services Manual, he continued her estrogen prescription, albeit at a lower dosage.  The Federal prison system has a policy of maintaining transsexuals at the level of change existing at their time of admission to the prison:

"It is the policy of the Bureau of Prisons to maintain the transsexual inmate at the level of change existing upon admission to the Bureau. Should responsible medical staff determine that either progressive or regressive treatment changes are indicated, these changes must be approved by the [Bureau of Prisons] Medical Director prior to implementation. The use of hormones to maintain secondary sexual characteristics may be continued at approximately the same levels as prior to incarceration, but such use must be approved by the Medical Director." Bureau of Prisons Health Services Manual, Program Statement 6000.3, 6803.

A week later, Dr. Barraco informed plaintiff that she would not get any more estrogen because he did not believe that she satisfied the prison system's criteria for being treated as a transsexual.  Plaintiff became suicidal and was put under the care of the prison psychologist.  She was confined to the prison hospital for a period of time, but was not given the estrogen.  She filed various administrative complaints about the denial of treatment and about degrading references to her condition.  These culminated in this legal action against the defendants: J. Michael Quinlan Director, Federal Bureau of Prisons; Kenneth Moritsugu, M.D. Medical Director, Federal Bureau of Prisons; Gregory L. Hershberger Warden, FCI Otisville; Donald Moore Health Services Administrator, FCI Otisville; Robert D. Barraco, M.D. Chief Medical Officer and Chief of Health Programs, FCI Otisville; Muhamad Malik, M.D. Psychiatrist, FCI Otisville; and Martin Salamack, Ph.D. Chief Psychologist, FCI Otisville. The trial court dismissed defendants Hershberger, Moore, Malik, and Salamack.  The appeals court reviewed whether the case could proceed against the remaining defendants.

While the plaintiff plead the case as a state action under 42 USC 1983, the court converted the case to a Bivens action since the defendants were federal employees.  As a pretrial detainee, the court found that plaintiff was not being punished and thus could not bring the complaint under the "cruel and unusual punishment" proscription of the Eighth Amendment.  The court found that the proper claim was under the due process clause of the 5th, but that it would use the same "deliberate indifference" developed in 1983 cases involving prison medical services.  This test requires that plaintiff first show that she was denied proper treatment for a serious medical condition, and then, second, that this was due to defendants' deliberate indifference to her medical needs.  The reiterated the ruling of the United States Supreme Court that mere malpractice is not enough to meet the deliberate indifference - plaintiff must show malpractice and something more than mere negligence.

The court first addressed the claims of that Moritsugu and Barraco, who are doctors and members of the Public Health Service.  They argued that they are entitled to absolute immunity and are entitled to a dismissal without regard to the facts that might be developed in pre-trial discovery.  They base this claim on section 233(a) of the Public Health Service Act, which makes the Federal Tort Claims Act (FTCA) the sole remedy available against Public Health Service doctors.  While plaintiff claims that this unconstitutionally deprives her of a remedy for her injury, the court finds that Congress has the right to shift the responsibility from the individual doctors to the United States itself in order to protect Public Health Service doctors from personal litigation that would undermine morale and make it more difficult to hire and retain physicians in the Public Health Service.  The court does stress that this immunity is dependent on the defendants' actions being entirely within their role as physicians.  The rejected plaintiff's claims related to rude language as not stating a claim that rises to constitutional status.

The court dismissed the claim against Quinlan because there was no evidence that he supervised the medical decisionmaking or did anything else improper in his official role.  The affirmed the dismissal of Moore, the Health Services Administrator at FCI Otisville at the time of the allegations and Hershberger, the Warden, finding they were entitled to summary judgment on qualified immunity grounds because (a) the conduct attributed to them is not prohibited by federal law; and (b) these defendants were non-doctors whose failure to intercede in the medical treatment of an inmate was, if wrongful, not objectively unreasonable.  While defendant Malik, the psychiatrist, did have the medical training and license to prescribe the estrogen, the court found that he had no responsibility for plaintiff's care, and that plaintiff could not involve him in her care by "buttonholing" him and asking him to overrule the orders of the physician responsible for her care.

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