U.S. admits negligence in detainee's death (San Francisco Chronicle)

U.S. admits negligence in detainee's death

Bob Egelko, Chronicle Staff Writer
Tuesday, April 29, 2008

The federal government has admitted that its negligence was responsible for the death of an illegal immigrant who pleaded during 11 months in custody for treatment for a condition that proved to be terminal penile cancer.

Government lawyers made the acknowledgement last week in a suit that Francisco Castaneda filed before he died at his Los Angeles-area home on Feb. 16 at age 36. Doctors had amputated Castaneda's penis a year earlier to try to stop the spread of the cancer.

A lawyer for family members who have taken over the lawsuit said Monday the admission followed a government physician's sworn statements that she knew a biopsy was the only way to determine whether Castaneda had cancer but never authorized one - a decision that was approved by officials at the headquarters of U.S. Immigration and Customs Enforcement.

The case has laid bare the "complete failure, at multiple levels," of the health care system for 300,000 immigrants in federal detention centers, said Conal Doyle, an Oakland attorney representing the family along with the nonprofit group Public Justice. "We are seeking a policy change" and will not settle the case without one, he said.

An inquiry to Immigration and Customs Enforcement was referred to the U.S. attorney's office, where spokesman Thom Mrozek declined Monday to explain why the government had acknowledged that its negligence caused Castaneda's death.

"It's the position of (Immigration and Customs Enforcement), the Bureau of Prisons and any other federal entity that may have the ability to detain people that we strive to provide proper and adequate medical care for persons in our custody," Mrozek said.

The admission of negligence makes the government responsible for damages up to $250,000, a limit set by California law for emotional distress caused by medical malpractice. U.S. District Judge Dean Pregerson of Los Angeles could award additional sums, including punitive damages, if he finds that individual doctors and officials were deliberately indifferent to Castaneda's welfare and violated his constitutional rights.

In a ruling last month that denied the government's request to dismiss the case, Pregerson said Castaneda's allegations, if proved, describe government conduct that was beyond cruel and unusual. The government has appealed his decision to allow claims against individual federal employees.

Castaneda entered the United States with his mother at age 10 after fleeing his native El Salvador during a civil war. He was convicted in 2005 of possessing methamphetamine and spent eight months in jail, then was held in immigration detention centers in San Diego and San Pedro while awaiting proceedings in the government's attempt to deport him and in his request for political asylum.

According to his lawsuit, a doctor first noticed a growth on Castaneda's penis in December 2005, while Castaneda was in state custody, and ordered tests that were never conducted. Multiple lesions developed and his pain increased, but doctors and immigration agency officials rejected medical staff recommendations for a biopsy, describing it as an elective procedure, the suit said.

In response to observations of discharges from his lesions, the agency's health service recommended in November 2006 that he receive a clean pair of boxer shorts each day, the suit said. A doctor finally ordered a biopsy two months later and said Castaneda probably had cancer, but the immigration agency released him without treatment 11 days later, and he underwent the biopsy and amputation in a Los Angeles County hospital, the suit said.

In pretrial deposition last month, Esther Hui, the only doctor at the San Diego detention facility, said Castaneda was under the care of a physician's assistant. Hui said she recalled seeing Castaneda only once, probably in the spring of 2006, when she was shown the penile lesion and thought it might be cancerous.

But Hui said she does not recall conducting or ordering any tests to rule out cancer. When an outside oncologist told her later that Castaneda should be hospitalized immediately for a biopsy, she disagreed, explaining during the deposition that she considered the procedure elective because Castaneda was not in imminent danger of dying.

Hui, a defendant in the lawsuit, said she is sad about what happened to Castaneda, but "I don't feel responsible" for his death.