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Ninth Circuit Revives Suit Against U.S. Over Cancer Death

The Ninth U.S. Circuit Court of Appeals ruled that Public Health Service doctors who willfully fail to render appropriate diagnosis and treatment may be sued in constitutional tort action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. They agreed that the district judge that the Federal Tort Claims Act does not provide an “equally effective remedy” for such violations, the panel affirmed an order denying a motion by three officers and two civilian doctors employed by the service to dismiss on the grounds of absolute immunity. The complaint in question alleges that the victim died as a result of the defendant’s unwillingness to conduct diagnostic procedures that would have resulted in timely discovery that lesions on his penis were cancerous. The victim was a state prisoner and was told that while surgery “might be recommended long-term” the government did not consider his condition to be “threatening to life, limb, or eyesight” and therefore would not provide the operation. The public health service defendants moved to dismiss, arguing that they were absolutely immune because the plaintiffs had an equally effective remedy under the Federal Tort Claims Act, but that motion was denied. To read the full story, click here.