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$1,156,149 Awarded to Former Federal Prisoner for Failure to Diagnose and Treat Throat Cancer

The U.S. District Court for the Eastern District of New York on September 6, 2005, awarded $1,156,149 to former Bureau of Prisons (BOP) prisoner Hernando Lopez for failure to diagnose and treat throat cancer over a two-year period. The Court held that BOP medical personnel in Pennsylvania were the direct and proximate cause of Lopezs injuries, where such cancer should have been initially diagnosed and treated but for the deliberate indifference and negligence of such medical personnel. The Court reduced Lopezs initial $6 Million claim, based upon a determination that Lopez would live for another 16 years, that there would be no future reoccurrence of this cancer, and to bring the award in line with other factually similar cases.

In June 2000, Lopez had complained to BOP medical personnel in Loretto, Pennsylvania of nasal and breathing problems, which he attributed to an assault he sustained by another prisoner in 1998 and to a subsequent surgery to correct nasal blockage. BOP medical personnel had prescribed various antibiotics and throat gargles to Lopez for symptoms of sore throat and hoarseness, despite his repeated requests to be examined by an Ear, Nose and Throat (ENT) specialist which were consistently denied. Lopezs sore throat and hoarseness persisted and worsened as he was moved from Pennsylvania to a BOP transfer facility in Oklahoma in June of 2001, then to Oakdale, Louisiana, approximately three weeks later in July of 2001.

Between July 18, 2001, and October 24, 2001, Lopez was examined by BOP medical personnel in Oakdale, including two physician assistants and two staff physicians, who noted in his medical records a persistent and worsening hoarse voice, sore throat, continuing problems of breathing and voice changes. On September 18, 2001, BOP Staff Physician Blocker wrote in Lopezs medical records consider ENT evaluation for complain of nasal problems and voice changes, citing reasons therefore history of nasal septoplasty (surgery for deviated septum) and difficulty breathing. On September 28, 2001, Dr. Joel Alexander examined Lopez at Oakdale and noted his history of nasal congestion and that he suffered from a possible vocal cord dysfunction. On October 15, 2001, Lopez was examined by a BOP physician assistant because he was complaining that his throat hurt, and it was noted again that he suffered from a possible vocal chord dysfunction.

In October of 2001, over 14 months after his initial request to be seen by an ENT specialist, Lopez was examined by Dr. Leslie Warshaw, Jr., a private ENT specialist in Oakdale, Louisiana. When Dr. Warshaw attempted to examine Lopezs throat with a mirror (after determining that a flexible laryngoscope was broken), he was unable to do so because of Lopezs gag reflex.

On December 13, 2001, Lopez had a CT Scan of his sinuses, which was negative. On January 22, 2002, Dr. Warshaw examined Lopez by passing a flexible scope down his nose and observed a lesion on his larynx, which he noted as possible Tl, T2 squamous cell carcinoma of the larynx,recommending a biopsy to properly diagnose the lesion. During such biopsy on February 6, 2002, Dr. Warshaw discovered a large mass lesion in the anterior two-thirds of the right rue vocal cord extending into the ventricle ..., which he removed as much as possible with forceps and a carbon dioxide laser to remove remaining visual evidence of the tumor. Dr. Warshaws post-operative diagnosis was Squamous Cell Carcinoma (SCCA) of the larynx.

A month after Lopezs March 2002 release, he had a portion of his right voice box removed, with a tube permanently inserted into his throat below his voice box so that he could breathe. Lopez subsequently participated in a regimen of chemotherapy and other procedures, resulting in no further cancer reoccurrence.

Lopez had timely exhausted his administrative remedies while imprisoned and subsequently filed a complaint against BOP personnel under the Federal Tort Claims Act (FTCA) on April 9, 2002, alleging Eighth Amendment Bivens claims for failure to diagnose and treat his throat cancer, and deliberate indifference and negligence of BOP medical personnel in such failure to diagnose and treat his cancer in a timely manner. Lopezs complaint was tried before the Court from March 28 through April 16, 2005.

The Court found credible the plaintiffs pathology experts opinion that Lopezs cancer was present in September through October 2000 while he was in Pennsylvania. This supported Lopezs argument that the BOP medical personnel were deliberately indifferent and negligent in not properly diagnosing and treating the cancer, which exhibited a gross deviation from the standard of medical care. The Court rejected the defendants pathology expert as not credible, since the theoretical basis of her opinion was not regularly accepted in the medical community.

The Court ruled that in this case, there was a conflict in the underlying substantive law relating to damages, such that the laws of Pennsylvania, Oklahoma, and Louisiana (where Lopez was located during his symptoms associated with cancer), were significantly different regarding the award of such damages. After a choice of law analysis, the Court reasoned that Pennsylvania is where Lopezs cancer should have been diagnosed, and if diagnosed, prevented.

The Courts total award of $1,156,149 was based on $18,149 in past medical expenses, $228,000 for future medical expenses, $400,000 for past pain and suffering, and $450,000 for future pain and suffering. The Court further ordered a 3.88 percent interest rate until paid plus recovery of Lopez costs of this action. See: Lopez v. United States, USDC ED NY, Case No. 03-Civ-l729.

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Lopez v. United States

Lopez v. United States