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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

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Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

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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.

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