Kin Can Sue Over Man’s Penis Amputation, Death

     SAN FRANCISCO (CN) – The 9th Circuit allowed the family of a man who died of penile cancer in U.S. immigrations custody to sue federal officials for allegedly denying him adequate treatment for nearly a year, leading to his penis amputation and ultimate death.




     Physicians at the California Department of Corrections first told Francisco Castenada that he needed a biopsy to rule out cancer in late December 2005, after noticing a white-and-yellow raised lesion on the foreskin of his penis. Castenada was juggled from jail to jail, with each doctor recommending a biopsy that jail officials never provided.
     By the time Castenada landed in the custody of the Immigrations and Customs Enforcement at the San Diego Correctional Facility, his lesion had become painful, and was growing, bleeding and oozing discharge.
     Prison officials refused to approve a biopsy, however, because they deemed it an “elective outpatient procedure.”
     One physician’s assistant allegedly explained that “while a surgical procedure might be recommended long-term, that does not imply that the federal government is obligated to provide that surgery if the condition is not threatening to life, limb or eyesight.”
     In June 2006, a doctor found another lesion “forming and foul odor emitting from uncircumcised area with mushroomed wart.” A urologist recommended circumcision, but officials said that, too, was “elective in nature.”
     The following month, prison health services noted that Castenada’s “symptoms have worsened. (He) states he feels a constant pinching pain, especially at night. States he constantly has blood and discharge on his shorts … Also complains of a swollen rectum which he states makes bowel movements hard.”
     Prison officials responded by prescribing Castenada laxatives and increasing his weekly allotment of boxer shorts.
     When a third prison transfer resulted in the same stalled treatment, the American Civil Liberties Union took up Castenada’s case. They wrote letters demanding a biopsy, to no avail. By the time he had a biopsy in February 2007, the cancer had spread throughout his body. Doctors tried to save him by amputating his penis and ordering chemotherapy, but it was too late. He died Feb. 16, 2008 at the age of 36.
     His family pursued the constitutional claims he filed against the United States and numerous state and federal officials and doctors.
     Judge Milan Smith rejected the government’s argument that Castenada’s relatives have no cause of action for recovery, because their claims are pre-empted by the Federal Tort Claims Act.
     The court concluded that the Act’s exclusions are meant for “a particular set of tort law claims related to medical malpractice” and do not entitle the defendants to absolute immunity from constitutional torts.

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