Recent 7th Circuit Case Illustrates the Two Different Approaches to Deliberate Indifference

Written by: Jennifer Herzog, Esq. & Nick Kinsley

The 7th Circuit, sitting en banc, recently decided a case involving the issue of deliberate indifference and the Eighth Amendment in regard to correctional healthcare in which the majority and dissent articulate two very different approaches.  In Petties v. Carter,^[1] the plaintiff, Tyrone Petties, ruptured his Achilles tendon while at the Stateville Correctional Facility.  Dr. Imhotep Carter, a co-defendant in the case, followed some, but not all, of the applicable protocol by giving Petties crutches, ice, Vicodin, and authorizing “lay-in” meals.  Dr. Carter referred Petties to a specialist, but the appointment did not occur until about six weeks later.  The specialist gave an orthopedic boot to Petties, but experts testified that boot should have been given at the time of the injury to immobilize the rupture.  A different ankle specialist believed surgery might be necessary, but Dr. Carter did not order surgery due to its high costs. Dr. Carter was replaced by Dr. Saleh Obaisi, another co-defendant, who did not authorize physical therapy nor surgery because of the expense.  Petties filed a lawsuit under  42 U.S.C. § 1983 against Dr. Carter and Dr. Obaisi for deliberate indifference, a violation of the Eight Amendment. The Court of Appeals for the 7th Circuit found that a material factual dispute existed as to whether Dr. Carter and Dr. Obaisi were deliberately indifferent and therefore reversed the District Court’s summary judgment ruling and remanded to the trial court.

The majority’s analysis to determine if there was deliberate indifference begins with an examination of the defendant’s subjective state of mind and whether the official actually knew of the substantial risk of harm and disregarded it.  The opinion notes that Plaintiffs very rarely will have direct evidence that a prison official had actual knowledge, and therefore the difficulty in deliberate indifference analysis is determining how far an official must depart from the accepted standards of care to be considered a violation of the Eighth Amendment.  The majority discusses how plaintiffs must prove more than just negligence or even objective recklessness, but does not offer a bright-line test for when a medical professional’s decision departs from minimally competent medical judgment resulting in deliberate indifference. The court finds that “[w]here evidence exists that defendants knew better than to make the decision that they did, a jury should decide whether or not the defendants were actually ignorant to the risk of harm they caused.”^[2]

In contrast to the majority opinion, the dissent offers a bright-line test to determine what is considered deliberate indifference and what is covered by state medical malpractice law.  Using the Supreme Court’s 1976 decision in Estelle v. Gamble^[3] to guide the analysis, Judge Easterbrook writing for the dissent states that a constitutional claim of deliberate indifference under the Eighth Amendment requires a showing that there was no care at all.^[4]  Palliative medical treatment (pain relief only) may not be adequate care, but the dissent states that is an issue of state medical malpractice law and not deliberate indifference under the 8th Amendment.  In Petties, the plaintiff does not deny that the doctors exercised medical judgment; he simply believes it was bad medical judgment. Therefore, the dissenting judges believe that this is not deliberate indifference and does not violate the Eighth Amendment.

As pointed out by the dissent, the circuit courts are split on this topic.  Therefore, should lawyers for the defense choose to appeal, the U.S. Supreme Court may take the opportunity to weigh in on the tension between these two different approaches to deliberate indifference cases.  At HBS, our dedicated team of professionals committed to the correctional health care industry strive to stay up to date on changes, trends, and developments in the law as it specifically relates to correctional health care issues.  We will continue to monitor the outcome of this case and advise our clients accordingly.