Defending Correctional Healthcare Providers: The Intersection of Malpractice and Civil Rights

Written by: Beth Boone, Esq.  and Steven P. Bristol, Esq.

Incarceration is big business in the United States, with costs to taxpayers estimated at over $80 billion dollars per year for the estimated 2.2 million individuals in custody. From county jails to state prisons, correctional healthcare providers are in the news daily, from questions and concerns regarding the expenses of jail and prison healthcare contracts to inmates alleging indifference to their medical needs or substandard care by local, state, and federal employees or governmental contract providers. Defending correctional healthcare providers can involve professional negligence and medical malpractice claim management, while often juggling federal civil rights allegations in the same action. The interplay of state and federal causes of action and rights with custodial issues makes the defense of these matters, from pro se inmates to families seeking wrongful death claims through highly skilled attorneys, an increasingly complex matter.

Historically, most of this work involved defending against pro se inmates. Anyone who has ever clerked for a judge has undoubtedly experienced the barrage of handwritten pleadings with allegations ranging from nonsensical to serious deprivations of constitutional rights. While changes to federal law in the 1990s resulted in a decrease of inmate civil rights lawsuits, there is now an increasing number of inmate medical malpractice lawsuits filed by attorneys who see financial opportunity in either the alleged civil rights violations, alleged professional negligence, or a combination of the two. With the increasing privatization of detainment services in the United States in the past century, qualified immunity is no longer a defense for everyone involved, so arguably it is now easier to sue correctional healthcare providers. Medical care and personal injury are two of the most prevalent types of lawsuits filed by inmates in jails and prisons. The trend of increasing representation by attorneys will likely continue.

Malpractice/Professional Negligence Claims

The physicians, physician assistants, nurse practitioners, nurses, and other licensed professionals who provide medical, dental, and psychiatric care to those in custody are generally governed by the same standard of care required of those healthcare professionals in their treatment of patients on the “outside” of the correctional healthcare context. As a result, unless their State’s legislature has provided otherwise, those professionals may be subject to lawsuits brought by their inmate patients, or their survivors, who allege that one or more correctional healthcare professional deviated below the standard of care. While there are, of course, significant variations, in most states that standard reflects the national standard of care, essentially what a reasonably knowledgeable and skilled [insert specific profession here] would have done at the time in like and similar circumstances.

That “medical malpractice” standard of reasonable professional care, or of minimally acceptable professional care under the circumstances, traditionally has been quite distinct from the deliberate indifference standard for inmate medical claims first articulated in 1977 by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104, when it concluded that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Traditionally, medical mal-practice claims were not only distinct from inmate medical needs cases, but were distant from them in terms of the level of proof required. As noted in Estelle, “[a] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Only conduct “beyond gross negligence” will support a Section 1983 claim for deliberate indifference to a serious medical need. Id. While state-specific requirements for medical or professional malpractice claims still provide hurdles that many inmates simply cannot overcome, the trend in recent years is that the gap in proof required between these two types of claims is narrowing. As a result, particularly when there is a sufficiently serious injury, or a death, a plaintiff may file a lawsuit seeking to recover on either or both theories. That said, even when there is a high enough potential damage award to attract the involvement of sophisticated plaintiffs’ counsel, because the state-specific requirements for healthcare malpractice cases can be complex and may limit what those attorneys can do in pursuit of their client’s federal civil rights claim, given the “right” facts, even the most capable plaintiffs’ attorney may seek to recover exclusively under 42 U.S.C. § 1983 for violation of their clients’ federal rights despite the higher burden of proving not just professional negligence, but conduct “beyond gross negligence” that constitutes deliberate indifference to the inmate’s serious medical needs and the unnecessary and wanton infliction of pain.

State Specific Malpractice Requirements

Perhaps the most common of the state specific malpractice requirements is the required involvement of an expert qualified to testify regarding what the standard of care required of the healthcare provider in the situation and how the provider failed to meet that standard. The vast majority of states require expert testimony to prove a claim of professional negligence. See, e.g., National Conference of State Legislatures, June 24, 2014, Report “Medical Liability/Malpractice Merit Affidavits and Expert Witnesses.” The qualifications requirements, and other requirements for admissibility of expert testimony, vary widely from state to state. While there are other state specific requirements for healthcare malpractice cases (e.g., review boards, requirements that expert affidavits be filed with the Complaint, certificates of merit, damage caps unique to such claims, etc.), the requirement of expert testimony and the trend that the particulars of those requirements increasingly narrow the field of who can admissibly testify against whom all contribute to the complexity and expense of defending professional malpractice claims in the correctional healthcare context. The problem is compounded when the plaintiff pursues both causes of action, medical malpractice and deliberate indifference.

Civil Rights Allegations

Unfortunately, there is no uniform federal standard for what is deliberate indifference-instead we rely upon the evolving interpretations of the federal courts since Estelle, which can vary among jurisdictions. Although correctional healthcare providers are required to comply with the national standard of care governing their specific professions on the “outside,” they are practicing on the “inside” of the correctional system, with all that that entails. This puts them in a difficult position. Correctional physicians can be deliberately indifferent to an inmate’s (detainee’s or prisoner’s) rights by failing to prescribe needed medication and they can be just as deliberately indifferent to an inmate’s right to refuse to take needed medication. See, e.g., Johnson v. Tinwalla, 855 F.3d 747 (7th Cir., April 28, 2017). What controls in one jurisdiction may not apply in another. In Dang v Sheriff, plaintiff argued based on Kingsley, 576 U.S. __, 135 S.Ct. 2466, 2475 (2015), that a detaineealleging constitutionally deficient medical care need not show deliberate indifference. At least within the 11th Circuit, he does: “… Kingsley involved an excessive force claim, and we are not persuaded that its holding extends to claims of inadequate medical treatment due to deliberate indifference.” 856 F.3d 842, 850 (11th Cir., 2017).
Issues abound. A victorious plaintiff will be entitled to an award of attorneys’ fees on the federal claims, but may not be on the state professional or ordinary negligence claims. Although supervisor liability and respondeat superior liability may apply as to the state law claims, they do not apply to the federal claims.

Conclusion

First, from a risk management perspective these cases may be expensive to defend. In many of these lawsuits, individual healthcare providers, law enforcement, correctional officers and/or other governmental workers are named in addition to the entity providing their employment. The number of defendants insures a healthy bill and seems to be a more recent plaintiff ploy in forcing some providers to quickly settle. Besides sheer volume of named parties, these lawsuits can be witness intensive, with correctional officers from each shift of the relevant portion of the incarceration deposed. The lawsuits can easily be paper intensive, when plaintiff counsel asks for all policies and procedures of the correctional healthcare provider and all other parties. Second, begin with the end- most of these cases are resolved through summary judgment. Determine early what is necessary to defeat all causes of action pled in your case, and pursue the same. Another method to assist in the defense is to establish a correctional healthcare practice group, which includes overlap from medical malpractice, aging services, government and allied sciences. An established centralized data bank for useful orders, briefs, recent cases with precedent that deal with very specific areas of the law (i.e. custody, transport) should be utilized. Interaction with industry professionals in organizations such as the National Commission on Correctional Health Care, American Correctional Association, and American Jail Association can provide targeted and specific educational opportunities in matters unique to jails and prisons. This additional awareness of industry trends assists all involved in the defense of these lawsuits to understand the unique challenges associated with the interaction of civil rights and professional negligence claims.