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Wednesday, May 29, 2024 | Back issues
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Committed Sex Predator Has Case Over Cancer

(CN) - A prison medical provider must face claims that it waited over a year to diagnose a sexually violent predator with level 2 melanoma, a federal judge ruled.

Michael Hasher has been committed to New Jersey's Special Treatment Unit as a sexually violent predator since 2004. Correctional Medical Services (CMS), a private company, provided medical care there until Oct. 1, 2008.

Hasher claims that CMS personnel have treated him for such chronic conditions as dizziness, hearing difficulty, blurry vision and weakness since February 2007. At that time, Hasher allegedly reported a black growth on his left temple to Dr. Ahab Gabriel, who was supervised by Dr. Herbert Smyczek, the CMS medical director.

Hasher claimed that CMS nevertheless ignored the warning signs until an outside dermatologist, described only as Dr. Manhong in the complaint, diagnosed him on sight with level 2 melanoma in April 2008. He said a biopsy report later confirmed the diagnosis with depth of invasion of at least 0.5 mm.

On May 20, an ear, nose and throat specialist, Dr. Sadeq Razvi, recommended that Hasher undergo plastic surgery with a wide excision. Dr. Shar, as he is described in the complaint, removed the quarter-size melanoma at St. Francis Hospital on July 7. He allegedly said that Hasher's history of dizziness and ear problems could be a result of metastasis to the brain and recommended an MRI and CAT scan.

Hasher then filed a federal complaint against Correctional Medical Services, Drs. Gabriel and Smyczek, as well as the New Jersey Department of Corrections' former commissioner, George Hayman, and the Special Treatment Unit's former administrator, Bernard Goodwin, for delaying his medical treatment for over a year. Hasher sought a temporary restraining order or preliminary injunction.

U.S. District Judge Peter Sheridan granted Hasher's application to proceed in forma pauperis and ordered expedited service, and the CMS defendants filed an answer.

Although the judge ordered the state defendants to answer or otherwise plead by Nov. 5, 2008, they did not file an answer until July 18, 2012. All the defendants then filed motions for summary judgment, and Hasher opposed.

U.S. District Judge Claire Cecchi denied their motions on March 27, noting the differences in the deliberate indifference standard for convicted prisoners compared with civilly committed individuals like Hasher.

"The deliberate indifference standard for inadequate medical care under the due process clause relied on by the CMS defendants is inapplicable to Hasher's claims," Cecchi wrote. "Because the CMS defendants employ the incorrect legal standard, they have not carried their burden of showing that they are entitled to judgment as a matter of law under Rule 56(a)."

Cecchi also noted that the record contains evidence "from which a jury could find that: (1) Dr. Gabriel knew of the black growth on Hasher's face as early as February 2007: (2) Dr. Gabriel saw the black growth as it increased in size and multiplied into three on as many as 13 occasions between February 2007 and March 2008; and (3) the failure to order a diagnostic biopsy prior to March 10, 2008, constituted reckless disregard or gross negligence concerning Hasher's health and medical need to biopsy the tumor(s), contrary to Youngberg's professional judgment standard."

Since the state defendants did not participate in or even know about Hasher's diagnosis and treatment, however, the court found that the claims against them under Section 1983 failed to state a claim.

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