OVERVIEW OF LEGAL ISSUESRELATED TO INMATE HEALTH

CARE

David SasserSenior Counsel

Legal Advisor-Idaho Sheriff’s Association& Idaho Chiefs of Police Association

Naylor & Hales, P.C.Attorneys at Law

950 W. Bannock, St., Suite 610Boise, ID 83702

208-383-9511 (main)208-947-2083 (direct)

208-870-9733 (cell)208-383-9516 (fax)

Email: dave@naylorhales.com

Disclaimer

This information/presentation is intended to promote consideration and discussion of significant issues related to inmate health care.

This information/presentation is NOT intended to be legal advice, and participants/attendees should not rely upon it or take any action based upon it. There is a significant body of law related to the topic of this presentation and participants/attendees should consult with their attorneys prior to taking any actions related to these issues.

Preliminary Observations If you provide services to inmates in the detention setting,

chances are high that you WILL get sued. . . sooner or later, HOWEVER

The deck is stacked in favor of health care providers by statutes, professional standards and court decisions, including

State law malpractice cases and in actions based on the United States Constitution.

Courts’ willingness to defer to providers’ (particularly physicians’) medical judgment is a BIG factor

This presentation will focus primarily on inmates’ constitutional right to “adequate” medical care.

Some of the most important cases are:

Estelle v. Gamble, 429 U.S. 97 (1976)Bell v. Wolfish, 441 U.S. 520 (1979)Parratt v. Taylor, 451 U.S. 527 (1981)West v. Atkins, 487 U.S. 42 (1988)Washington v. Harper, 494 U.S. 210 (1990)Farmer v. Brennan, 511 U.S. 825 (1994)

Parratt held that:

In order for a plaintiff to state a claim under Title 42 U.S.C., Section 1983 (constitution-based)

He/she must allege the violation of a right secured by the Constitution and law’s of the United States – and,

Must show that the alleged deprivation was committed by a person who was acting under color of state law

West informed us that:

A physician who is under contract with the state to provide medical services at a state-prison hospital, even on a part-time basis

Acts “under color of state law” within the meaning of Section 1983

The facts that the state employed respondent (the defendant physician) pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other “state employees” does not alter the analysis.

Nor does the fact that Doctor Atkins’ employment contract did not require him to work exclusively for the prison make him any less a state actor than if he performed those duties as a full-time, permanent member of the state prison medical staff.

Estelle established the “deliberate indifference” standard, including the following:

The 8th Amendment protects sentenced inmates from cruel and unusual punishment.

All claims of inadequate medical care DO NOT violate the 8th Amendment.

Medical malpractice (negligence) does not “become a constitutional violation” just because the victim is an inmate.

To establish an 8th Amendment violation, an inmate must prove:

◦ the provider was aware that the inmate had “serious medical needs” (Objective Component)

◦ The provider knew of the serious need and understood their acts/omissions would constitute an excessive risk to the inmate’s health or safety.

Bell held that:

Pre-trial detainees are entitled to adequate health care

Pursuant to the due process requirements of the 14th Amendment

Failure to provide such care constitutes impermissible punishment of persons not convicted of a crime

Although some courts have articulated distinctions between the protections afforded sentenced and pre-trial detainees

Most courts apply the same “deliberate indifference” standard to both groups

Farmer clarified that officials/providers are not liable under the 8th Amendment unless they:

know facts that indicate there is excessive risk to the inmate’s health or safety, AND

believe the inmate’s health is in danger ...

but proceed anyway, without taking reasonable steps to limit the risk

?? Serious Medical Need ??

In determining whether “serious” medical needs exist, some courts have considered:

Chronic or substantial pain

Would reasonable physician or patient think issue warrants treatment

Condition significantly affects patient’s daily activities or quality of life

If delay in providing care is an issue – what are “effects” of delay

“Seriousness” is subject to case-by-case analysis

Courts have held that jails/prisons cannot determine “seriousness” based on rigid lists of circumstances

Courts have found medical staff deliberately indifferent where they:

Ignored obvious serious conditions – i.e. broken bones, cuts requiring treatment, patient with history of chest pain, etc.

Failed to treat diagnosed conditions – particularly if diagnosed by a specialist or ER physician

Failed to investigate to extent needed to make informed judgment – i.e. failure to consult treating physician before stopping medication or changing treatment, failure to order diagnostic tests or send to specialist

Delayed treatment resulting in serious, detrimental consequences

◦ Failure to take serious action while inmate lost weight over several months◦ Several days delay where inmate is in pain, nauseated and vomiting- resulting

in ruptured appendix

Interfered with access to treatment – often involves staff and/or medical staff denying access to specialists

◦ Allowing access to specialists, but not providing access to prescribed treatment

◦ Ignoring or refusing to carry out medical orders

Used non-medical factors to make medical decisions

◦ Inadequate staffing or communication barriers◦ Retaliation or punishment◦ Financial limitations or budget constraints◦ Inmate scheduled for release

Make medical decisions so incompetent they are medically unacceptable.

MISCELLANEOUS HEALTH CARE ISSUES

Dental Care

Inmates have a right to adequate dental care under circumstances where. . .

Their dental problems are deemed to be “serious” medical needs and/or cause serious problems.

Factors courts have relied on include:

Severe toothache or persistent pain

Significant unwarranted delay or refusal to get inmate to dentist or specialist

Swollen, bleeding gums interfering with eating, sleeping and other activities

Failure to provide serious treatments such as fillings and crowns – especially where prescribed by dentist

Consideration of non-medical factors – i.e. cost, personal dispute, retaliation

Mental Health Care, Suicide Prevention & the Duty to Protect Inmates

Farmer also established that:

“The (8th) Amendment also imposes duties on these officials who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care and must take reasonable measures to guarantee the safety of the inmates”

This duty is not without boundaries – but courts have had a difficult time agreeing on “reasonable measures”

Focus on Questions:

1. Were officials or providers “deliberately indifferent” to the rights, health or safety of the inmate?

2. Did they have knowledge of a substantial risk of harm?

3. What did they do – did they proceed, without taking “reasonable measures” and cause serious harm?

Common issues in inmate mental health and/or suicide cases include:

Were proper policies & procedures in place?

Was proper training provided to staff?

What did the provider know?

When did the provider know it?

Was there proper screening and classification?

Were appropriate notices provided to appropriate staff?

Was there timely follow-up action?

Was/Is there proper documentation?

Inmate’s Right to Informed Consent and to Refuse Medication

Informed consent is a matter of state lawGenerally speaking inmates must be informed of:

Enough information about proposed treatment options

To make an informed decision whether to accept or refuse the treatment offered, with knowledge of the risks associated with the treatment options

Inmate’s Right to Refuse Medication

May be based on state law, or

The 8th Amendment

In Washington the Supreme Court held that:

◦ Some deprivations are so important that states must establish processes to avoid unfair deprivations

◦ Antipsychotic drugs can be administered without the patient’s consent

◦ Only if “a mental disorder exists which is likely to cause harm if not treated” – AND

◦ If one psychiatrist has prescribed the treatment and another has reviewed and concurred in the treatment

Risk Management Suggestions ForHealth Care Providers

Clear, Written Agreement re: the services you are/are not providing and all terms, conditions, costs, etc.

Insurance coverage for malpractice, acts, omissions, violations of rights – ALL aspects of ALL services you have agreed to provide

Policies & Procedures (Internal)◦ Personnel Policies◦ Operations Policies

Policies & Procedures (External)◦ Of prisons or jails you serve

Training Plan/Program◦ Risk Management Plan (Jacqueline Moore has excellent material)

Your Relationship With Jail/Prison Management & Staff

Keep it professional – arms length

Hazards of “familiarity”

Importance of Policy

Ethical Implications

Confidentiality

Keeping personnel “drama” separate

Provider’s role in grievance process

OTHER ISSUES – IF TIME PERMITS

Shackling/Restraining Pregnant Inmates

Disabled/Wheelchair-Bound Inmates

MRSA Infections in Detention

Inmate Diets

Inmates with HIV/AIDS

Transexual Inmates