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Angel Aviles v. United States of America

August 17, 2012


The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge


Resolution of this Federal Tort Claims Act ("FTCA") action turns on whether the Government breached the statutory duty of care it owes Angel Aviles, a federal prisoner who suffered from painful hernias during his first five years in Bureau of Prisons ("BOP") custody. The trial featured divergent accounts of Aviles' symptoms, his efforts to seek medical attention, his physical activities while in custody, and the interpretation of prison policies and procedures regarding inmate medical care. It is undisputed, however, that doctors examined Aviles at the behest of prison medical staff and recommended surgical repair of his hernias in April 2005, October 2008, and January 2010. Despite those recommendations, and despite a series of medical and administrative requests by Aviles that surgery be scheduled, the recommended surgery did not occur until April 2010. The procedure was successful.*fn1

As set forth more fully below, I find the Government breached its duty of care by failing to provide Aviles with adequate, reasonable, and timely medical care for his hernias between January 2007, when Aviles was transferred to his designated BOP institution where he could receive stable post-operative care, and April 2010, when Aviles' surgery was finally performed. I further find Aviles endured physical pain and embarrassment as a result of the Government's actions, and that he is entitled to $32,500 in damages.

I. Findings of Fact

1. Aviles has been in federal custody since January 2005. He initially was housed at the Federal Detention Center ("FDC") in Philadelphia, then moved to the Federal Correctional Institution in Schuylkill County, Pennsylvania ("FCI-Schuylkill"), in January 2007. See Feb. 27, 2012 Tr. Bench Trial at 26, 107-08, Aviles v. United States, No. 08-2440 (E.D. Pa. Feb. 27, 2012) [hereinafter Day 1 Tr.].

2. Dr. Stephen Hoey, the medical officer at the FDC, testified about prison medical procedures and information contained in Aviles' medical file. See Feb. 28, 2012 Tr. Bench Trial at 4-93, Aviles v. United States, No. 08-2440 (E.D. Pa. Feb. 28, 2012) [hereinafter Day 2 Tr.].

3. If an inmate is sent for a surgical consultation and returns with a report in which the consulting doctor recommends surgery, BOP medical staff should promptly review the report. If surgery is not scheduled, the staff should document why the recommendation is not followed. Id. at 9-10, 67-69.

4. Pursuant to BOP policy, non-urgent (or "elective") procedures -- or those that are "medically acceptable" but "not always necessary" -- require review and approval by the Utilization Review Committee ("URC"). Def.'s Trial Ex. 6 at 270-71. After conducting its review, the URC must decide whether to approve, deny, or refer the matter for further evaluation, and its decision must be conveyed to the inmate in writing and included in the inmate's medical file. Id. at 272.

5. Because the FDC is a temporary housing facility with frequent inmate transfers and staff variability, it is not an ideal setting for stable rehabilitation after surgery. Day 2 Tr. at 10.

6. According to Dr. Hoey, there is no deadline within which the BOP must act on a recommendation for an elective procedure. Id.

7. When he was arrested, Aviles had a hernia, from which he had suffered for many years. Day 1 Tr. at 26-27, 76.

8. Aviles had complained of pain from his hernia, had been evaluated by medical staff, and had received over-the-counter pain medication during previous terms of incarceration in state facilities. See id. at 76-82.

9. By 2002, Aviles had learned how to reduce his hernia, i.e., to push on the bulge and make it -- and the accompanying pain -- subside. Id. at 80-82.

10. In 2003 and 2004, Aviles twice visited emergency rooms complaining of hernia pain, and at least one doctor recommended surgery. Id. at 83-87. Aviles chose not to schedule surgery during that time, at least partly due to fear. Id. at 84, 123-25.

11. Aviles disclosed his hernia to FDC medical personnel during his intake assessment. Id. at

27, 87-90.

12. In March 2005, Aviles told an FDC physician's assistant about his hernia, which was reducible at the time, and a surgical consultation was ordered. Id. at 93-94.

13. Dr. Horowitz examined Aviles in April 2005 and recommended surgery to repair his hernia. Id. at 101; Def.'s Trial Ex. 2 at 105. Aviles signed a consent-to-surgery form. Def.'s Trial Ex. 2 at 106-11.

14. Dr. Horowitz's recommendation was reviewed by Dr. Massa at the FDC the same day it was issued. See id. at 77. Dr. Massa noted the URC would "review case for repair." Id. There is no evidence showing when, or if, such review occurred.

15. In March 2006, Aviles saw Dr. Reynolds at the FDC and complained of hernia pain, which he rated a three or four out of five. Id. at 66.

16. Dr. Reynolds examined Aviles again in September 2006 and advised him he would not receive surgery until he was moved to his designated BOP institution, thereby minimizing the risk of post-surgical ...

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