.

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

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.