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Defense Digest

State University Nurse’s Actions Did Not Meet “State-Created Danger” Standard

Defense Digest, Vol. 27, No. 4, September 2021

September 1, 2021

Key Points:

  • A plaintiff can bring a federal state-created danger claim against a state university nurse, but the allegations must outline affirmative actions taken rather than merely inaction.
  • Ordinary negligence is not enough to “shock the conscience” for purposes of a state-created danger claim; there must be deliberate indifference.
  • The defendant nurse did not act with deliberate indifference to the plaintiff’s medical needs, as misdiagnosis or mistreatment is not deliberate indifference that shocks the conscience.

In Vorobyev v. Bloomsburg Univ. of Pennsylvania, et. al., 2021 WL 2106502 (M.D. Pa. May 25, 2021), Magistrate Judge Martin Carlson of the Middle District of Pennsylvania dismissed the plaintiff’s federal “state-created danger” claim against a state university nurse and directed the ordinary negligence claims back to state court. The court held that the allegations against the state actor, the nurse, did not satisfy the requirements for bringing a state-created danger claim under 42 U.S.C. § 1983. To sustain a federal state-created danger claim, a plaintiff cannot simply allege ordinary negligence, but must show that a state actor exhibited deliberate indifference toward a patient that “shocks the conscience,” as well as an affirmative act that created danger.

A federal state-created danger claim derives from 42 U.S.C. § 1983, the statute that affords citizens legal redress for violation of constitutional rights. One such right is the Fourteenth Amendment right to due process, which specifies that a state or state actor cannot deprive a citizen the right to life, liberty or property without due process of the law. This right provides the constitutional hook necessary to bring a federal state-created danger claim against a state actor.

However, section 1983 state-created danger claims must meet a higher pleading standard than ordinary negligence claims. In federal court, to successfully plead a state-created danger claim under section 1983, a state actor must demonstrate a “deliberate indifference” toward the medical needs of a patient that “shocks the conscience.” Allegations of mistreatment or misdiagnosis of a patient do not meet this standard. Additionally, courts have held that due process does not impose an affirmative obligation on a state to protect its citizens, with a limited exception for those in state custody. Essentially, this means that an affirmative act by a state or state actor must be present for a citizen’s due process rights to be violated. Mere inaction on the part of a state or state actor is not enough. To streamline the analysis, courts have identified four “essential elements” of the state-created danger doctrine:

  1. The harm ultimately realized must have been foreseeable and fairly direct;
  2. A state actor must have acted with a degree of culpability that shocks the conscience;
  3. There must have been a relationship between the state actor and the plaintiff such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions; and
  4. A state actor must have affirmatively used his or her authority in a way that created a danger to the citizen or caused the citizen to be more vulnerable to danger than had the state not acted at all.

Prior to his death on November 29, 2018, Ivan Vorobyev was an 18-year-old college student at Pennsylvania’s state-funded Bloomsburg University. He was a Type 1 diabetic and had been so for most of his life. A month before his death, Vorobyev visited the student health center due to unstable blood sugars. His Type 1 diabetes was documented by a university nurse, and Vorobyev even provided a letter from his medical provider detailing his past complications with his diabetes and his symptoms, which included sustained high blood sugar levels, nausea and vomiting.

On the day before his death, Vorobyev had an appointment scheduled with the Bloomsburg student health center. Prior to arriving for his appointment, Vorobyev called the student health center and left a message requesting to speak to a nurse because he had been vomiting for several hours. A few hours later, Vorobyev arrived for his appointment and was assessed and treated by nurse practitioner Wolfe, an eventual named defendant in the case. Wolfe documented Vorobyev’s high blood sugar levels, vomiting, abdominal pain and glucose levels, which were quadruple the normal range. Wolfe diagnosed Vorobyev with “nausea with vomiting, unspecified,” prescribed medication and sent him back to his dorm. Later that night, Vorobyev had a heart attack and was taken to the hospital. He died the next day.

Vorobyev’s estate sued CRNP Wolfe under section 1983, alleging that her actions (or inactions) amounted to a state-created danger which ultimately led to Vorobyev’s death. Judge Carlson held that the plaintiff’s allegations as pled were not enough to shock the conscience and did not satisfy the affirmative act requirement. The downfall of the plaintiff’s complaint was that the allegations against CRNP Wolfe outlined the actions she failed to take rather than any affirmative act pertaining to Vorobyev’s treatment. The plaintiff’s complaint listed that Wolfe:

  • Failed to conform to the applicable standard of care of a CRNP;
  • Failed to recognize Vorobyev’s symptoms;
  • Improperly assessed Vorobyev’s medical condition;
  • Failed to provide a differential diagnosis consistent with Vorobyev’s signs of diabetes complications;
  • Incorrectly diagnosed Vorobyev with nausea and vomiting; and
  • Failed to contact emergency services.

Judge Carlson found that these allegations did not meet the state-created danger pleading requirement. The plaintiff argued that Wolfe’s inaction regarding Vorobyev’s medical needs rendered him more vulnerable to danger and increased his risk of harm. The court dismissed this argument and re-affirmed the narrow construction of the state-created danger doctrine. Failure to take action did not satisfy the affirmative act requirement of the state-created danger doctrine, and simple misdiagnosis or mistreatment is not deliberate indifference to medical needs that shocks the conscience.

Although the federal claims were dismissed, the court did not opine as to the ordinary negligence claims against the defendants, which were to be sorted out in state court. While possibly enough to assert state tort claims, allegations of misdiagnosis, mistreatment and mere inaction did not meet the high standard needed to survive a motion to dismiss the section 1983 state-created danger claim.

*Stephen is an associate in our Philadelphia, Pennsylvania, office. He can be reached at 215.575.2897 or sepurcell@mdwcg.com.

Defense Digest, Vol. 27, No. 4, September 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.