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Cashwell v. United States

September 8, 2009

GERALD CASHWELL, PLAINTIFF
v.
UNITED STATES, DEFENDANT



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Before the court is a motion to dismiss the action filed pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 and § 2680, by Plaintiff Gerald Cashwell ("Cashwell"), or in the alternative, for summary judgment, filed on behalf of Defendant United States.*fn1 (Doc. 13.) Cashwell claims that the medical staff at the Federal Correctional Institution at Allenwood in White Deer, Pennsylvania ("FCIAllenwood"), his current place of confinement, were negligent in failing to timely inform him of his Hepatitis C diagnosis and in treating him for the disease. For the reasons that follow, the motion for summary judgment will be granted.

I. Background

Cashwell has been incarcerated at FCI-Allenwood since February 18, 2000.*fn2

(Def.'s Statement of Material Facts, Doc. 15 ¶ 1.) On February 11, 2008, a FCIAllenwood medical staff member gave Cashwell a physical examination and discussed his medical history with him. (Id. ¶ 4.) During the examination, Cashwell advised the staff member that he had a history of intravenous drug use.*fn3 (Id.; Doc. 14-2 at 15.)

On February 26, 2008, laboratory blood testing was completed on Cashwell. (Doc. 15 ¶ 6.) Results of that testing were returned on February 28, 2008, indicating that Cashwell had tested positive for Hepatitis C. (Id. ¶ 7.) Specifically, the results stated, "Anti-HCV igC detected. Patient is presumed to be infected with HCV, state or associated disease not determined. Follow CDC recommendations for supplemental testing." (Pl.'s Medical Records, Doc. 14-2 at 27.) There is nothing in the record indicating whether medical staff informed Cashwell of this diagnosis at that time.

On September 10, 2008, laboratory testing was again completed on Cashwell, with results indicating Cashwell had tested positive for Hepatitis C, with a viral load of greater than 700,000. (Id. ¶ 8.) Cashwell's primary care practitioner discussed the test results with him on September 18, 2008.*fn4 (Id. ¶ 9.) The practitioner also discussed with Cashwell the symptoms of Hepatitis C, treatment options, and different types of laboratory testing that would be necessary. (Id. ¶ 10.) The practitioner also referred Cashwell to FCI-Allenwood's physician for further evaluation. (Id. ¶ 11.)

On September 26, 2008, Cashwell was evaluated by the FCI-Allenwood physician during the chronic care clinic. (Id. ¶ 12.) The physician found that Cashwell was without symptoms referable to his liver and noted no physical findings. (Id. ¶ 14.) The physician ordered further laboratory testing. (Id. ¶ 15.) Further, at that time Cashwell informed the physician that he was sure that his positive Hepatitis C diagnosis was a result of his intravenous drug use from years earlier.*fn5 (Id. ¶ 13.)

On October 15, 2008, the additional laboratory testing was completed, including a Hepatitis C viral load, a chemistry profile, and Hepatitis C genotype. (Id. ¶ 16.) Medical staff informed Cashwell that he would continue to be monitored quarterly during the chronic care clinic to determine whether Interferon treatment was necessary. (Id. ¶ 17.)

On January 9, 2009, the FCI-Allenwood physician evaluated Cashwell for Hepatitis C again during the chronic care clinic. (Id. ¶ 18.) At that time, the physician ordered further laboratory testing, which was completed on February 24, 2009. (Id. ¶¶ 19, 21.)

On February 9, 2009, the physician referred Cashwell for a liver biopsy. (Id. ¶ 20.) The physician again evaluated Cashwell at the chronic care clinic for Hepatitis C on April 29, 2009, at which time he noted that Cashwell's liver function tests were normal.*fn6 (Id. ¶¶ 22, 23.)

Cashwell had a liver biopsy on May 6, 2009. (Id. ¶ 24.) On May 7, 2009, the biopsy pathology results were received, indicating chronic Hepatitis C that was minimally active with no fibrosis (grade 1, stage 0). (Id. ¶ 25.)

Further, Defendant indicates that Cashwell's current status does not meet the criteria established by the Clinical Practice guidelines for treatment of Hepatitis C. (Id. ¶ 26.) In addition, Cashwell's current liver function tests are normal and a repeat liver biopsy is recommended in three to five years. (Id. ¶ 27.)

Cashwell filed the instant FTCA complaint on April 17, 2009.*fn7 (Doc. 1.) In the complaint, Cashwell contends that he suffered physical pain and injury when FCIAllenwood medical staff neither informed him of his diagnosis of Hepatitis C nor treated him for the disease for seven (7) months after they learned of the diagnosis. Cashwell did not file a certificate of merit with his complaint. Service of the complaint was directed by order dated May 11, 2009. (Doc. 9.) On July 27, 2009, Defendant filed the instant ...


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