1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 ESTATE OF GERARDO CRUZ- Case No.: 17-CV-0569-AJB-NLS 12 SANCHEZ, et al.,

FINDINGS OF FACT AND

13 Plaintiffs CONCLUSIONS OF LAW 14 v.

15 UNITED STATES OF AMERICA, et al., 16 Defendants 17

18

19 I. 20 The Action 21 This is a negligence action under the Federal Tort Claims Act for the wrongful death 22 of Gerardo Cruz-Sanchez (“Mr. Cruz-Sanchez” or “Decedent”) on February 29, 2016. 23 This case involves the arrest, incarceration, and eventual death of Gerardo 24 Cruz-Sanchez. On February 4, 2016, Mr. Cruz-Sanchez was arrested and detained by the 25 United States. Approximately a week later, after being detained at another federal detention 26 center, he was transferred to Otay Mesa Detention Center (“OMDC”), which is owned and 27 operated by CoreCivic pursuant to a correctional services agreement with the federal 28 government. During his incarceration at OMDC, Mr. Cruz-Sanchez received medical 1 evaluations and treatment from employees of the United States on February 11, February 2 12, February 14, February 16, February 17, and February 21, 2016. On February 26, 2016, 3 Mr. Cruz-Sanchez was sent to the hospital. On February 29, 2016, Mr. Cruz-Sanchez died. 4 Plaintiffs allege that Defendant United States failed to properly and timely diagnose 5 and treat Mr. Cruz-Sanchez.1 6 The United States contended that its ICE Health Service Corps (“IHSC”) 7 professionals met the standard of care in providing medical services to Decedent during 8 his stay at OMDC. The United States further asserted that Decedent’s non-attendance at 9 sick-call after his February 21, 2016 examination, during the critical period when his 10 pneumonia developed and rapidly progressed, was the cause of Decedent’s death. 11 II. 12 Jurisdiction and Venue 13 Federal jurisdiction is invoked under 28 U.S.C. § 1346(b)(1). Venue is proper in the 14 Southern District of California because all conduct giving rise to the claims alleged in the 15 complaint occurred in San Diego County. 16 III. 17 The Proceedings 18 The case proceeded to trial on March 22, 2022, and concluded on March 28, 2022. 19 The issues tried were set out in the Final Pretrial Order in this case. (ECF No. 171.) 20 Following the trial, and upon review of the testimony and documentary evidence, the 21 agreed facts, the arguments of counsel, and the relevant legal authorities, the Court now 22 makes the following findings based on the credible evidence and the reasonable inferences 23 to be drawn therefrom. These findings were made based upon a preponderance of the 24 25 1 Plaintiffs also allege that CoreCivic detention officer, Defendant Landin, interfered with Mr. 26 Cruz-Sanchez’s ability to receive medical care and that Defendant CoreCivic failed to train Defendant Landin regarding his duty to provide Mr. Cruz-Sanchez access to adequate medical treatment. On 27 March 28, 2022, a jury unanimously found CoreCivic and Defendant Landin not liable for claims of violation of the Bane Act, negligence, negligent supervision, and wrongful death. The evidence was 28 1 credible evidence. The liability standard is that of negligence in the medical context: a 2 medical professional who fails to use the level of skill, knowledge, and care in diagnosis 3 and treatment that other reasonably careful medical professionals would in similar 4 circumstances. This level of skill, knowledge, and care is sometimes referred to as “the 5 standard of care.” See CACI 400, 500 and 501. 6 The negligence elements beyond duty are breach, causation, and damages. Id. 7 Causation is determined using the “substantial factor test” under California Law. See 8 Mitchell v. Gonzales, 54 Cal. 3d 1041 (1991); Restatement (Second) of Torts § 431. “A 9 substantial factor in causing harm is a factor that a reasonable person would consider to 10 have contributed to the harm.” CACI 430. 11 IV. 12 Findings of Fact 13 Any finding of fact which is more appropriately a conclusion of law is to be deemed 14 as such. 15 The following facts were admitted by the parties2 and are adopted by the Court: 16 1. On February 11, 2016, Mr. Cruz-Sanchez was transferred from Metropolitan 17 Correctional Center (“MCC”) to OMDC where he was held until February 26, 18 2016. 19 2. Between February 11 through February 26, 2016, Decedent and Alejandro 20 Chavez-Lopez (“Chavez”) were assigned to the J-pod housing unit at OMDC. 21 3. While at OMDC, Decedent had medical encounters with PHS staff on February 22 11, February 12, February 14, February 16, February 17 and February 21, 2016. 23 4. Decedent did not attend sick call after February 21, 2016. 24 5. On February 26, 2016, Decedent was sent to the hospital. 25 6. On February 29, 2016, Decedent died. 26 27 28 1 The Court further finds, based on a preponderance of the credible evidence, the 2 following: 3 7. On February 11, 2016, Decedent was medically screened by Nurse Ednacort. 4 Decedent was reported to say “I am good.” No reports of pain were elicited, nor 5 were past or current medical problems reported. Vital signs (temperature, heart 6 rate, respiration rate) were within normal limits. There were no complaints of 7 pain and he weighed in at 167 pounds. He was noted to have a BMI of 29.58 8 with 25 being the desired level. Physical exam was negative. The record notes a 9 negative chest x-ray on February 8, 2016 at the MCC. He was medically cleared 10 for custody. 11 8. On February 12, 2016, Decedent was seen at his request by Nurse Wu with pain 12 in the right upper eyelid. No other symptoms were noted. Blood pressure was 13 elevated (145/84), but all other vitals were normal. Weight and BMI were 14 unchanged. A stye was diagnosed, instructions to manage the condition were 15 provided, medication for pain was ordered, and a follow up with a Physician’s 16 Assistant was scheduled. 17 9. On February 14, 2016, Decedent was seen at his request by Nurse Alix for 18 complaints of “headache and sore throat” and “pain” for 2–3 days. No other 19 symptoms were noted. Blood pressure was elevated (141/75), weight and BMI 20 remained unchanged, and other vital signs were normal. An oxygen saturation 21 reading was taken and showed 96%, a reading within normal limits. Lungs were 22 clear on auscultation bilaterally. An Upper Respiratory Infection (“URI”) was 23 diagnosed and treated. Decedent was advised to return to sick call if symptoms 24 worsen, and Decedent verbalized understanding. 25 10. On February 16, 2016, Decedent was seen on sick call by Nurse Harris, with 26 complaints of cough, body aches, and sore throat for “one week.” All vitals were 27 normal save for the BMI and weight that were unchanged. Lungs were noted to 28 be “normal, clear to auscultation bilaterally, no wheezes, rales or rhonchi.” An 1 oxygen saturation reading was taken and showed 99%, a reading within normal 2 limits. Medication and instructions to manage the symptoms were given. 3 Decedent was advised to return to sick call if symptoms worsen, and Decedent 4 verbalized understanding. 5 11. Plaintiffs’ claim that a referral to a midlevel provider would be required at this 6 point under applicable guidelines, particularly the NCCH guideline that reads, 7 “When indicated, referral to the clinician’s clinic is made for the inmate to see a 8 physician or mid-level practitioner. In general, when a patient presents for 9 nonemergency health services more than two times with the same complaint, 10 and has not seen a physician, the patient receives an appointment to do so.” (Exh. 11 228 at 7.) No referral was made; however, Decedent saw a mid-level practitioner 12 the following day. The guideline reference to “When indicated” was explained 13 by Dr. Propst as allowing the medical professional some discretion in their 14 medical judgment. (See ECF No. 233 at 95.) No breach of the standard of care 15 resulted nor was any harm done. 16 12. On February 17, Physician Assistant Avalos conducted the follow-up 17 appointment for the stye. Decedent reported the stye was improving but reported 18 viral symptoms over the prior 3 days. The symptoms were noted as subjective 19 fever at night, chills, nausea through the day, lack of appetite, scratchy throat. 20 No other symptoms or complaints were noted by Decedent, including “night 21 sweats” or a “productive cough,” which Dr. Wilcox assumed existed but later 22 acknowledged were absent. (See ECF No. 234 at 85.) Indeed, Dr. Wilcox 23 projected the “night sweats” and the “cough” as his criticism of Avalos’ care and 24 claimed Avalos breached the standard of care by not taking an oxygen saturation 25 reading on this date or ordering other tests. 26 13. Exam records on February 17 also noted pain stated as “body aches” were 27 described by the patient. All vitals were normal save for the BMI and weight 28 that were unchanged. On physical exam, the lungs were noted as CTAB, 1 meaning “Lungs Clear to Auscultation Bilaterally.” Avalos assessed the 2 situation as an unspecified viral infection. No oxygen saturation reading was 3 taken given the lack of clinical indications. Decedent was advised to return to 4 sick call if symptoms worsen, and Decedent verbalized understanding. 5 14. There were no clinical indications of pneumonia on February 17, 2016. Dr. 6 Wilcox testified that rapid respiration rate, sharp stabbing chest pains with deep 7 breathing, shortness of breath, and abnormal breathing sounds are the signs and 8 symptoms to look for, and that none were present on February 17, nor for that 9 matter on February 12th, 14th, or 16th. (See ECF No. 234 at 93–98.) 10 15. On February 21, 2016, Decedent was seen by Nurse Byington for a health 11 assessment. The notes were entered two days later. All vitals were normal save 12 for the weight, now 166 (one pound less than all prior exams), and BMI was 13 not calculated. By appearance, Decedent was noted to be in “no acute distress, 14 well developed and well nourished.” While Decedent denied any current 15 medical concerns, he did report pain at 4 out of 10 without specificity as to 16 location. Physical exam was normal, and the lungs are noted as “clear to 17 auscultation bilaterally.” Decedent was “[e]ducated on the sick call process and 18 to follow-up via sick call as needed.” Dr. Lederman signed off on the note on 19 February 25, 2016. Decedent appeared to have improved from the URI for 20 which he was evaluated one week prior. That would be consistent with the 21 normal course of a URI. 22 16. Of note, Plaintiff’s Expert Dr. Wilcox conceded on cross examination that 23 Nurse Byington did follow appropriate guidelines on February 21. (See ECF. 24 No. 234 at 105.) 25 17. Defense Expert Dr. Vilke found no clinical signs or symptoms suggesting 26 pneumonia as of February 21, 2016, and further concluded that the medical 27 practitioners met the standard of care in treating Decedent. On the facts as 28 described herein, the Court agrees. 1 18. On February 22, 2016, Decedent was visited by his attorney Jonathan Frank 2 and an interpreter Danielle Leyva. Frank and Leyva testified that Decedent 3 appeared ashen, pale, breathless, coughing, and very ill. Frank advised the 4 officer on duty, who summoned someone else, and Frank shared his concern. 5 This description of Decedent’s condition was a change when compared to the 6 clinical notes of the February 21, 2016 visit. According to the Pod Log Book 7 (Exh. 43), Decedent declined to go to dinner. 8 19. Decedent did not request sick call, summon help, or ask for assistance thereafter 9 until an emergency was called by Detention Officer Landin on February 26, 10 2016. 11 20. On February 26, 2016, now 5 days after the last medical visit, Decedent was 12 taken to the clinic by staff when Defendant Landin called for medical 13 assistance. His condition had clearly deteriorated since his last visit to the clinic. 14 Nurse Moreno testified to Decedent’s distress and noted that he had coughed 15 up blood-tinged mucous. Dr. Propst attended to Decedent and found him in 16 need of hospital transport. 911 was called and Decedent was transferred to the 17 hospital. Dr. Propst noted increased heart rate, blood pressure, and respiration. 18 The oxygen saturation rate was down to 90%, and oxygen was administered. 19 Lungs were clear to auscultation except in the right lateral zone where some 20 rales/squeak was noted on inspiration. Decedent’s weight and BMI were 21 unchanged at 167 and 29.58, respectively. 22 21. There is no credible evidence that Decedent coughed up blood prior to February 23 26, 2016. 24 22. Dr. Wilcox would expect pneumonia to have an onset of two to three weeks but 25 admits it can come on rapidly. (See ECF. No. 234 at 83.) Dr. Propst says 26 pneumonia can develop within hours or overnight, although it is more typically 27 2, 3, or 4 days. (See ECF. No. 233 at 57.) Dr. Vilke testified consistent with Dr. 28 Propst. 1 2 23. A consultation by Dr. Reznik on February 26, 2016, noted on physical exam 3 that, other than the fact he was quite sick, Decedent appeared as a “well 4 nourished and well appearing man.” 5 24. As noted above, on February 29, 2016, Decedent died from sepsis secondary to 6 pneumonia and organ failure. No medical negligence was alleged concerning 7 the hospitalization and care provided from February 26, 2016 to the date of 8 Decedent’s death. As a result, detailed findings of fact concerning the clinical 9 course in the hospital are unnecessary. 10 25. Detainees in the OMDC could access medical by putting in for sick call on a 11 sign-up sheet available in the morning in their Pod. There were also medical 12 request forms available in the Pod generally, and a detainee could approach a 13 guard with a request for medical. The guards did not provide medical care. Their 14 role was to assist the detainees in gaining access to medical services as noted. 15 26. The Pod Log recorded activities and comings and goings for each day in the 16 Pod. A review of the log shows that Decedent’s Pod had a constant presence of 17 detention officers who made security checks of the pod every thirty minutes 18 during Decedent’s stay, and that a variety of other detention and government 19 representatives were present at times. A review of the log shows visitors coming 20 and going for informal security checks, cell searches, taking/returning detainees 21 to medical, admission of new and release of pending detainees. 22 27. The Log also shows that except for dinner on February 22, 2016, Decedent was 23 signed in and out of his Pod for meals. 24 28. Statements by Alejandro Chavez concerning Decedent’s lack of appetite and 25 not taking meals for days are contradicted by the log, and the multiple records 26 regarding Decedent’s stable weight readings from February 11, 2016 to 27 February 26, 2022. Plaintiff’s medical expert acknowledged that not eating for 28 a week would lead to weight loss. (ECF No. 234 at 84.) 1 29. The evidence is clear that Decedent decided not to return to the clinic for care 2 despite his familiarity with the protocol, which he had utilized previously, and 3 the instructions of the medical staff to return if symptoms worsened. The 4 suggestion, based on statements of witness Chavez, is that Decedent was 5 unhappy with the care he was receiving as he did not feel it was doing him any 6 good. While Chavez is hardly credible, given his financial motive in this case, 7 the inference that this was why the sick calls stopped is logical. Reference to 8 Decedent not wanting to go to medical was also referenced in the post incident 9 mortality review report. (See Exh. 224 at 004.) 10 30. Decedent’s failure to seek out further medical care as symptoms worsened on 11 February 22, 2016, was a substantial factor in his deteriorating condition and 12 ultimate development of pneumonia, sepsis, and multiple organ failure that 13 could not be successfully treated. 14 31. The evidence does not support a pneumonia developing in the Decedent for two 15 to three weeks. (See Wilcox, ECF. No. 234 at 52.) Decedent had a URI which 16 was properly treated and better by February 21. The medical records and log 17 entries belie that Decedent was as sick as witness Chavez claims. Chavez lacks 18 credibility for many reasons, above all the wealth of inconsistent testimony in 19 opposition. That Mr. Cruz-Sanchez contracted pneumonia is undeniable. 20 Regrettably, he chose not to access medical care which might have saved his 21 life. 22 V. 23 Conclusions of Law 24 The Court finds that the medical providers are not responsible for Mr. 25 Cruz-Sanchez’s tragic death due to sepsis, pneumonia, and organ failure. There was no 26 failure to diagnose and treat. The medical clinic staff provided reasonable and appropriate 27 medical care, but Mr. Cruz-Sanchez decided not to return to the clinic when his condition 28 suddenly changed and rapidly deteriorated during the five days from February 22 to 1 ||February 26, 2016. Decedent had repeatedly been advised to return to the clinic if his 2 ||symptoms worsened, and he verbalized his understanding each time. Regrettably, he did 3 follow the medical professional’s advice. 4 The United States medical staff satisfied the standard of care in providing care to 5 || Decedent, and none of their actions were a substantial factor in bringing harm to him. 6 VI. 7 Conclusion 8 Based on the foregoing, the Court finds in favor of Defendant United States of 9 America, and against Plaintiffs the Estate of Gerardo Cruz-Sanchez and Paula Garcia 10 || Rivera on all claims alleged against said Defendant. The Clerk of Court is directed to enter 11 ||judgment according to this order. The Clerk of Court is also directed to enter judgment for 12 || Defendant’s CoreCivic and David Landin and against Plaintiffs the Estate of Gerardo 13 ||Cruz-Sanchez and Paula Garcia Rivera on all claims pursuant to the jury verdict in that 14 || portion of this case. 15 IT IS SO ORDERED. 16 || Dated: April 7, 2022 © ¢ 7 Hon. Anthony J.Battaglia 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 10