Former state Sen. Raphael Musto was diagnosed with stage IV lymph cell cancer earlier this month, and he might have as little as two months to live, according to documents filed in U.S. District Court Monday by his attorneys.
Even with the treatment, they argue, his cognitive ability to stand trial on federal corruption charges could be severely compromised, and they are asking a judge to send the ailing 84-year-old home from a federal medical facility in North Carolina.
“If he does not get, or is not a candidate for, treatment of the cancer, there simply is no point seeking to improve his cognitive function given the prognosis for his life expectancy without treatment,” paperwork filed by attorneys John E. Riley, Joshua J. Voss and Walter S. Batty states.
A federal grand jury in November 2010 indicted Musto on allegations he accepted cash, gifts and services as part of a scheme designed to secure his continued support of various construction projects, according to the U.S. Attorney’s Office.
U.S. District Court Judge A. Richard Caputo in January ruled that Musto, of Pittston Township, was physically able to go to trial on corruption charges, but was mentally incompetent to do so. Caputo then ordered Musto to be put in custody of the attorney general. He subsequently was admitted to FMC Butner.
Musto was admitted on Feb. 3.
Caputo initially requested an update on Musto’s evaluation status on March 7. Late last month, Caputo extended Musto’s evaluation until June 2 based on a letter from FMC Acting Warden J. Ray Ormond.
Since his arrival at Butner, Musto has undergone both mental and physical tests, his attorneys say, but from Feb. 21 until March 7, the bulk of those tests were related to physical health issues — not mental health issues — and he has been confined to the hospital facility at Butner, not its mental-health facility. Musto, who was suffering from severe liver disease, has fallen down at the facility, requiring stitches to his face, and has an abscess on his hip.
On March 7, Musto’s attorneys say, a doctor at FMC Butner informed Musto’s granddaughter that a bone marrow biopsy resulted in a diagnosis of Non-Hodgkin’s Lymphoma, or lymph cell cancer, and that it was his belief chemotherapy should be started as soon as possible.
“The physical issues have now overtaken the issue of mental incompetence,” Musto’s lawyers wrote. Their filing can be read online, with this story, at www.timesleader.com.
But chemotherapy has not begun, lawyers say, as doctors need to perform a more thorough evaluation on the octogenarian to determine whether he is a candidate for the treatment.
Musto’s medical records were sent to his family physician and to a Pittston oncologist, Dr. David Greenwald, the lawyers said. The consensus of those doctors and FMC Butner staff is that Musto’s condition is “very poor,” and without treatment, he could have as little as two months to live.
“The consensus from the oncologist at Butner, as well as Dr. Greenwald, is … that Musto, with all his many serious health issues and complications, may not be a candidate for meaningful or effective chemotherapy treatment, but Dr. Greenwald needs to fully examine Musto and his records to determine if any course of treatment is recommended,” they wrote.
“If (Musto) undergoes treatment, by definition, the ability to improve cognitive function during chemotherapy would be seriously compromised, and, even if not compromised, should not result in continued confinement for a life or death issue on the thread of keeping him confined for what may well be a totally irrelevant issue,” they added.
The lawyers’ proposed motion, submitted to Caputo, would see Musto released to his family, with a status report on his health provided to the court in four months.
According to the filing, the government has been apprised of the situation, but is awaiting a formal medical opinion from FMC Butler before notifying the court of its position.
No response had been filed by Caputo or the government later Monday.