An Illinois man got the go-ahead to pursue a lawsuit alleging the Federal Bureau of Prisons committed medical malpractice by failing to provide him with hip-replacement surgery while he was an inmate in Wisconsin.
In a written opinion, U.S. District Judge Matthew F. Kennelly did not rule on the merits of Andrew Stacy’s contention that he experienced pain and suffered other injuries as a result of prison officials’ negligence.
But Kennelly rejected the argument that an exception to the Federal Tort Claims Act shields the U.S. government from liability for Stacy’s purported injuries.
Stacy brought his suit under the act, which states that U.S. district courts have jurisdiction to hear actions for injuries “caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
Kennelly conceded the “discretionary function” exception to the statute shields the United States from claims stemming from an act or omission by a government actor that involved a choice or the exercise of judgment on the part of the actor.
The exception applies even if the discretion afforded the federal employee or agency involved is abused, Kennelly wrote.
He wrote the government correctly maintains that the Bureau of Prisons’ refusal to move Stacy to a facility where the surgery could be performed was a discretionary act shielded by the discretionary function exception.
But Stacy is not challenging the bureau’s decision to keep him in the Federal Correctional Institution in Oxford, Wis., Kennelly wrote. Instead, he wrote, Stacy is challenging the bureau’s failure to provide him with the surgery a doctor recommended and Oxford’s acting clinical director approved.
And quoting Berkovitz v. United States, 486 U.S. 531 (1988), Kennelly wrote the bureau had no discretion in Stacy’s case because it had no “rightful option” other than to comply with the recommendation that it provide the surgery.
“[T]he government is shooting at the wrong target; it can’t simply redefine Stacy’s claim to fit its preferred defense,” Kennelly wrote.
He denied the government’s motion for summary judgment.
Since at least 2008, Stacy has had osteoarthritis of the left hip. His condition continued to worsen after he entered Oxford in March 2015. In May 2016, a consulting orthopedic surgeon recommended that Sparks get a total hip replacement within a month. Oxford’s acting clinical director approved the surgery three months later.
But Jeffrey Allen, the Bureau of Prisons’ medical director, declined to transfer Stacy to a facility where the surgery could be performed.
The bureau’s clinical practice guidelines recommend that inmates not receive hip replacements within 18 months of their release date. Stacy’s release was projected to be in January 2017.
Stacy was released to a halfway house in November 2016. He was released from the halfway house in January 2017 and had the surgery three days later.
Stacy filed his suit in January 2019, and the government filed its motion for summary judgment in December 2020.
In his opinion Friday, Kennelly wrote the federal government does not seem to be arguing that the decision not to provide Stacy with the surgery falls under the discretionary function exception.
But even if the government is contending its failure to provide the surgery involved the exercise of discretion or judgment, Kennelly wrote, “that is not enough.”
Citing United States v. Gaubert, 499 U.S. 315 (1991), he wrote the exercise of discretion must be based on “social, political, or economic policy considerations.”
The Bureau of Prisons’ decision to not perform the operation on Stacy apparently was based on medical considerations, Kennelly wrote.
“The term ‘social, political, or economic policy’ is relatively broad,” he wrote, “but the government offers no support for the proposition that it is read so broadly as to swallow up medical decision-making.”
The case is Andrew Stacy v. United States, No. 19 C 301.
Stacy is represented by Kenneth A. Nazarian and James A. Karamanis, both of Barney & Karamanis LLP. They could not be reached for comment.
Assistant U.S. Attorney Valerie R. Raedy represents the government. Spokesman Joseph Fitzpatrick of the U.S. Attorney’s Office declined to comment.