Health Care

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.}