APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas McKnew, Jr., Judge. (Los Angeles County Super. Ct. No. VC050229)
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PUBLICATION
In this opinion, we address two distinct issues arising from a lawsuit against the State of California. The first issue is whether the State's litigation conduct estops it from raising noncompliance with the Government Tort Claims Act (the Act) (Gov. Code, § 900, et seq. & 945.4).*fn1 The second issue is the State's liability under section 845.6 for failure to summon medical care for a prisoner.
The State's Department of Corrections and Rehabilitation (variously the State or Department of Corrections) appeals from a judgment in favor of plaintiffs estate of Francisco Castaneda and his heir Vanessa Castaneda.*fn2 The jury found that the State violated section 845.6 in that its employees knew or had reason to know Castaneda was in need of immediate medical care while in custody but failed to take reasonable action to summon care. We first hold nothing in the State's conduct estopped if from raising the heir's failure to file a government tort claim. We next hold, as a matter of law, the State is immune to liability for the decisions that resulted in Castaneda failing to undergo a biopsy while he was in State custody. (§§ 844.6 & 854.6.) Accordingly, the judgment is reversed.
FACTUAL AND PROCEDURAL BACKGROUND
Francisco Castaneda was convicted of violating Health and Safety Code section 11378 for possession of a controlled substance with the intent to sell and proceeded into custody in Orange County from October 21 to 26, 2004, and January 16 to May 15, 2005. He was then in custody in Los Angeles County from October 28 to December 6, 2005. While in custody in Orange and Los Angeles Counties, Castaneda complained of pain during urination and of a growth that had been on his penis for approximately two years. He was seen by nurses and a physician.
Castaneda was transferred to State custody on December 5, 2005 and remained there until January 12, 2006.
At North Kern State Prison, Castaneda underwent an initial medical intake screening. During the screening, Dr. Andrew Leong saw a discoloration on Castaneda's penis and noted Castaneda's difficulty in retracting the foreskin. Neither of these conditions is a symptom of cancer, but Dr. Leong told Castaneda to follow up with the yard physician and referred Castaneda to a urologist for a circumcision.
Three weeks later, Dr. Leong noted discharge, a foul smell, and that Castaneda had difficulty retracting the foreskin. In his differential diagnosis, Dr. Leong considered a thickened foreskin, a skin rash, or cancer. To "rule out skin pathology," i.e., cancer, required a urology biopsy. Because Dr. Leong was not a urologist, his job was not to treat, but to refer Castaneda to a urologist.
Dr. Leong referred Castaneda for a urology consult to undergo a biopsy to rule out (1) squamous cell carcinoma of the penis, and (2) leukoderma with phimosis (discoloration). The State's Health Care Services Physician Request for Services form requires the referring doctor to indicate whether the "Requested Treatment/Service is," "Emergent," "Urgent," or "Routine." Dr. Leong circled "Routine," which under Department of Corrections' policy meant the requested service should be provided within 90 days. Dr. Leong agreed that his referral was not really routine, but explained the condition did not require a 72 hour response, which would make the referral "Urgent." As Dr. Leong wanted to select a timeframe for the service, he wrote, "ASAP, within one to two weeks" further down on the form, under "Estimated time for service delivery, recovery, rehabilitation and follow-up." Dr. Leong never saw Castaneda again because the prisoner was transferred before the next scheduled appointment.
Procedurally, the Health Care Services Physician Request for Services forms are sent to the utilization management nurse who relies on the three categorical designations, "Emergent," "Urgent," and "Routine," when passing the forms on to the chief medical officer for review. Dr. Leong's Health Care Services Physician Request for Services form for Castaneda was denied by Dr. Robert Mekemson, North Kern State Prison's acting Chief Physician and Surgeon. The reason for the denial, Dr. Mekemson explained, was that Castaneda was being transferred the following morning to his permanent placement at Richard J. Donovan Correctional Facility where the prisoner would be screened again and the "Routine" referral would be handled.
Castaneda arrived at Donovan on January 12, 2006 and was examined by Nurse Practitioner Susan Pasha on February 7, 2006, within the 90-day period of the "routine" referral. Nurse Pasha was aware that Dr. Leong had recommended a urology consult to rule out carcinoma. Nurse Pasha noted a "two centimeter by two centimeter raised, white yellow, irregular-shaped lesion . . . white macular [flat] patches . . . to scrotum and . . . foreskin." She noted her assessment of "Genital lesion foreskin. Rule out squamous cell carcinoma. Rule out gonorrhea/chlamydia. Vitiligo region question." (Italics added.) In the notes, she stated, "Urgent urology referral. Cipro 500 one time. Doxycycline 500 twice a day for seven days. Treat prophylactic and then follow up in a month, GC Chlamydia probe." Nurse Pasha also wrote a referral to rule out squamous cell carcinoma on which she indicated "Needs excision and biopsy of lesion. Please evaluate and treat." Nurse Pasha did not follow up on this referral, despite the Department of Corrections' policy requiring her to keep track of whether the request for the consult had been performed.
Castaneda was scheduled to go to a urology clinic on March 29, 2006. However, he was released to the federal authorities on March 26, 2006.
Castaneda was in the custody of Immigration and Customs Enforcement from March 26, 2006 to February 5, 2007.
Nine days after his release from federal custody, Castaneda was diagnosed by doctors at Harbor-UCLA Medical Center with invasive squamous cell carcinoma, keratinizing type, involving the foreskin and glands and invading the corpus spongiosum penis. Castaneda had his penis amputated, but the cancer had spread to his lymph nodes. He died a year later on February 16, 2008.
Castaneda filed a complaint in federal court, which included medical malpractice allegations against the treating ...