03 Nov Defending Medical Malpractice Claims in the Correctional Healthcare Setting
Any health care practitioner in the correctional healthcare setting can see what appears to be either a more recent upswing in actual claims and lawsuits, or at least what appears to be more frequent news media accounts of the same. http://www.cnn.com/2014/10/28/us/alabama-gangrene-madison-county-jail-lawsuits/index.html?hpt=hp_t2 While medical malpractice or professional negligence claims that occur in private practice settings are generally more commonly litigated, there are basic differences which make the defense of these actions unique.
First, most medical malpractice actions are generally based upon state –based tort claims, which could be state statutes or case law in that jurisdiction that gives right to that specific cause of action. Most lawsuits in the correctional healthcare setting include federal claims of civil right violations, in addition to state-based tort claims. So by the very nature of the claims, while many medical malpractice actions are filed in state court, most correctional healthcare companies or individual health care providers in the correctional healthcare setting will be sued in federal court. Additionally, the players in a lawsuit alleging medical malpractice in a correctional healthcare setting can vary from pro se inmates to inmates represented by attorneys with a background in criminal or constitutional law. It is much more common in state court to have medical malpractice or professional negligence actions filed by claimants whose attorneys have a background in malpractice cases. This can be attributed to many factors, some of which may include the high costs of financing malpractice litigation, the level of expertise necessary, the possible statutory requirements for an expert affidavit prior to filing the lawsuit, etc.
The use of experts in medical malpractice or professional negligence actions is commonplace, and is just as important in the defense of correctional healthcare claims. However, given there is a limited number of health care providers in the correctional setting, obtaining an expert review may be much more difficult. For example, in Georgia, state law is very specific as to the qualifications of experts. In pertinent part, O.C.G.A. § 24-7-702(c) states:
…[I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time of the act or omission is alleged to have occurred, such expert:
(2) In a case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue;…
O.C.G.A. § 24-7-702(c)(2)(A) (emphasis supplied).
Certainly a correctional healthcare provider has an unique set of parameters in the provision of health care to incarcerated individuals, which can be discussed at length in a different blog. However, the importance of obtaining a qualified expert in the defense of correctional healthcare providers cannot be overstated. To obtain that individual that has the same actual experience- not only to meet the individual state law mandates, but also to place your correctional healthcare provider in a situation where an actual peer is providing a review- can be more challenging.
In summary, while professional negligence claims in both the private and correctional healthcare settings can be similar, be wary of the differences- in the parties and their attorneys, the claims, the laws that govern, and in the experts you use in the defense of the action. Knowing these differences will not only assist with your defense, but also allow you to strategize appropriately and effectively with your correctional healthcare client.
By: Beth Boone, Esq.