Medical Malpractice

Immunity for US Health Aides?

In the upcoming term, the US Supreme Court is expected to address the immunity of public health service officers.

Traditionally, public health service officers in federal facilities can't be sued for malpractice. Under the current law, the federal government itself can be sued, but not the actual workers. That means that if you are treated in a federal facility (ex. a prison hospital) and you think that the doctors or nurses mistreated you, you can't personally sue them for medical malpractice; you can only sue the government-run hospital.

The Law

A 1970 law prevents lawsuits against public health officers seeking compensation for injuries caused by those officers. You must sue the government itself to be compensated.

While the 1970 law deals only with the immunity of public health service officers, its reach is broad. These medical personnel provide care to immigrants, prison inmates, reservation Indians and federal marshals, as well as medical services in foreign countries.

However, where there is a will, there is a way. While you can't bring a medical malpractice claim against the employees, lawyers have been creative in structuring a different type of claim. Public health officers are not immune from lawsuits accusing them of violating a constitutional right.

These are called "Bivens actions," after the Supreme Court's 1971 decision in Bivens v. Six Unknown Agents. In Bivens, the Supreme Court held that plaintiffs whose constitutional rights are violated by federal employees may sue them under the Constitution to recover damages.

That was precisely what was done in a recent case, Migliaccio v. Castaneda. There, a prisoner sued both the hospital and its workers after they failed to diagnose his tumor.


The controversial case testing this immunity involves Francisco Castaneda, an immigrant who was serving a prison sentence in California state prison and later transferred to federal immigration custody for deportation.

While in prison, he complained repeatedly to medical personnel about lesions on his penis, but nothing was done to treat him. After his release from custody, he was diagnosed as cancer by a private doctor. Castaneda's penis was amputated. He underwent unsuccessful chemotherapy and died on February 16, 2008.

Castaneda filed a malpractice and negligence lawsuit against the US under the Federal Tort Claims Act (FTCA) and against the medical staff under California law. He died while the lawsuit was pending and the suit was then continued by his estate and his daughter.

Castaneda also brought Fifth, Eighth, and Fourteenth Amendment claims against the individual defendants under the Bivens1 claim.

Public Health Service Officers

In separate petitions, five public health service officers, ranging from an individual doctor to the head of the immigration health services division, argued that the case against them raises an important and recurring issue of their immunity. They're now seeking clarification of this right by the Supreme Court.

The Reason for Immunity?

The law was designed to give public health care officers incentives to "vigorously pursue" their medical mission "without risk of exposure to morale-sapping litigation or liability."2 The immunity is offered to recruit better qualified medical personnel without having to worry about lawsuits against them.

Will this Issue Make It to the Supreme Court?

Though few cases make it to the US Supreme Court, the issue of immunity is expected to be addressed because there is a conflict between federal appeal courts: Some ruled in favor of immunity and others against. The Supreme Court typically takes such cases to settle the dispute and help clarify the law.

This is an important issue that affects both sides of the patient-provider relationship in federal medical facilities. The Supreme Court can clarify patients' remedies for malpractice or negligence and potential liability of the medical staff.

The Supreme Court is expected to act on the petitions soon, perhaps at its initial conference before the opening of the new term on October 5.

Questions for Your Attorney

  • If the Supreme Court reviews the Castenada case, how would the decision affect pending cases?
  • How do Bivens actions differ from similar malpractice or negligence cases involving private parties?
  • Are there limits on damages in Bivens actions?

1 U.S. v. Bivens, 403 U.S. 388 (1971).
2 Lyle Denniston, Tracking New Cases: Immunity for U.S. Health Aides?, Supreme Court of the United States Blog, Sept. 1, 2009, available at, accessed Oct. 1, 2009.

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