Civil Rights: Physicians Who Treat Prisoners

Publication Info: 
Tennessee Medicine, September 2008

By Phillip North, JD; Judy Regan, MD, JD, MBA; and Edward Hadley, JD


INTRODUCTION
Forty percent of inmate care is provided by private corporations, the remaining 60 percent by government entities, according to the American Medical Association’s February 2008 Virtual Mentor. Physicians who work as employees or contractors of these private corporations and government entities provide services for prisoners or pretrial detainees. There are many ethical, legal and social reasons for physicians to provide prisoners, as wards of the State, adequate health care. In particular, the Supreme Court in Estelle v. Gamble held that deprivation of health care constituted cruel and unusual punishment, a violation of the Eighth Amendment to the Bill of Rights in the Constitution. This interpretation created a right to adequate health care for all persons in custody, whether convicted prisoners or pretrial detainees. Correctional authorities and physicians who infringe on this right may face civil liability under the Civil Rights Act.

Plaintiffs may file a medical malpractice and/or a civil rights claim. The plaintiff may choose to file a civil rights claim because civil rights claims do not automatically require adherence to Tennessee’s Medical Malpractice Act. For instance, a medical expert may not be required to show proof of causation and/or damages; adherence to the locality rule when an expert is chosen may not be required; the case may be moved to federal court rather than state court, leading to a jury selection outside of the physician’s local community; and attorney fees may be awarded to the plaintiff. This paper looks at the legal reasons for providing prisoners health care, and the civil rights claims that may result against physicians.

CIVIL RIGHTS CLAIMS
To state a claim for civil rights violations under 42 U.S.C. § 1983, the inmate or detainee must establish that (1) he or she has been deprived of a right secured by the Constitution or the laws of the United States and (2) the deprivation was caused by a person or persons acting under color of State law. When civil rights cases are brought against a healthcare provider by inmates, courts usually first determine whether the healthcare provider was “acting under color of State law.” If so, the court then determines whether a deprivation of rights has occurred. Thus, practitioners providing care to inmates or detainees should consider whether they may be acting under color of State law and familiarize themselves with civil rights standards.

Person Acting “Under Color of State Law”
A physician employed by a governmental authority to provide health care to inmates within the prison walls on a full-time basis is most likely “acting under color of State Law.” However, the determination is less certain for healthcare providers contracted to provide limited services within the prison walls pursuant to physician order and for providers treating an inmate or detainee in a hospital or civilian clinic setting.

The purpose of 42 U.S.C. § 1983 “is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Only deprivations of civil rights occurring “under color of state law” violate 42 U.S.C. § 1983. To determine whether conduct occurs under the color of state law, “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”

State action can be found “only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” A state is not responsible for a private party’s decisions unless it “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” The state’s role must be active; approval or acquiescence in a private party’s actions is not enough.

When a civil rights claim is based upon the alleged conduct of a private entity, the conduct must be “fairly attributable to the state.” “A private entity’s conduct is fairly attributable to the state only if it meets two criteria: (1) the deprivation is caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible; and (2) the entity charged with the deprivation is fairly said to be a state actor, either by receiving significant aid from state officials, or because the conduct is otherwise chargeable to the state.”

State action has been found when a physician acts on behalf of the State to provide needed medical attention to a person who is placed involuntarily in state custody (in prison or involuntarily committed mental patients) and who is prevented from otherwise obtaining the needed care. The Supreme Court in West v. Atkins, 487 U.S. 42 (1988), found that a private physician who was under contract with the State to provide medical services to inmates at a state prison hospital on a part-time basis acted “under color of state law” – within the meaning of 42 U.S.C. – when he treated an inmate. The Court reasoned that a prison inmate confined within the state prison system against his will is entirely dependent on the State for his medical treatment. This was reinforced by the fact that under North Carolina law, inmates had no right to seek medical treatment other than that given them by the State. Thus, the resultant deprivation was caused by the State’s exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care.

Deprivation of a Right
Inmate claims are often prosecuted without the assistance of an attorney and can involve all types of care issues. Claims may take the form of inadequate medical care, failure to timely provide adequate medical care or the withholding of medical care. In the civilian setting, a patient will typically claim medical malpractice, which requires a deviation from the standard of care to be proven, in most cases, through the testimony of a physician. However, in a civil rights action, an inmate must only establish that the defendant healthcare provider demonstrated “deliberate indifference” to a “serious illness or injury” of the inmate.8 The testimony of a physician is not necessarily required to prove “deliberate indifference” to a “serious illness or injury.” However, the deliberate indifference standard is a significant degree of neglect greater than basic medical malpractice. Thus, a practitioner could commit malpractice yet not violate the deliberate indifference standard.

Civil rights claims have evolved from the Due Process Clause of the Constitution and the Bill of Rights. Over time, the Supreme Court has held that virtually all of the Bill of Rights protects such fundamental rights and applies to the States through the liberty interest of the Due Process Clause.

The Due Process Clause is phrased as a limitation on the State’s power to act and was intended to prevent government “from abusing [its] power, or employing it as an instrument of oppression,” not as a guarantee of certain minimal levels of safety and security. In fact, the Supreme Court has found that only under certain limited circumstances, such as when the State takes a person into its custody and holds her against her will, does the Constitution impose on the State a corresponding duty to assume some responsibility for her safety and general well-being. This duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help her, but from the limitation it has imposed on her freedom to act. In addition to the Due Process Clause, an inmate claim may be based upon the Bill of Rights. In fact, inmate claims are most often based on the Eighth Amendment prohibition on “cruel and unusual punishments.” One of the primary goals of the Eighth Amendment was to proscribe “torture” and other “barbarous” methods of punishment. More recently, the Eighth Amendment has been interpreted to embody broad and idealistic concepts of dignity, civilized standards, humanity, and decency. The amendment proscribes punishments that are incompatible with evolving standards of decency that mark the progress of a maturing society.

These protections of the federal Constitution apply to the States through the Fourteenth Amendment. Courts have also determined that under the Fourteenth Amendment Due Process Clause, pretrial detainees have a similar right to adequate medical treatment.

Deliberate indifference to serious medical needs may be manifested by a prison doctor’s response to a prisoner’s medical problem or by prison guard’s intentional interference with the inmate seeking treatment or obtaining treatment once prescribed. Claims asserting deliberate indifference to serious illness or injury have taken numerous forms, ranging from delay in prescribing pain medication for a toothache to failure to diagnose myocardial infarctions to failure to provide orthotics and expensive assistive devices. However, proving a physician’s “deliberate indifference” to a serious medical need requires the inmate to prove the physician had a state of mind equivalent to criminal recklessness. In Brown v. Thompson, 868 F. Supp. 326 (S.D. Ga. 1994), the court held that the prison medical staff, which clearly attended to the plaintiff prisoner on a consistent basis, demonstrated a lack of intent to ignore his medical concerns. In Mathis v. Pratt, 375 F. Supp 301 (N.D. Ill. 194), where the Plaintiff was a patient prisoner who alleged that his prison doctor denied him the medications he requested, the Court held that this amounted to no more than a difference of opinion between the inmate and physician. Similarly, the United States Supreme Court held, “[a] medical decision not to order an X-ray or like measures does not represent cruel and unusual punishment. At most it is medical malpractice and as such the proper forum is the state court.” Thus, an allegation of medical malpractice or negligence does not necessarily rise to the level of a civil rights violation.


CONCLUSION
Physicians who find themselves providing services for prisoners or pretrial detainees, either as state employees or in a clinic or hospital setting, should be aware of their exposure to allegations involving violations of civil rights laws. An allegation of a civil rights violation can result in the case being heard in federal court rather than the local state court, can limit the use of medical expert testimony and can expose the doctor to liability for damages not ordinarily awardable in the typical malpractice case, such as an award of attorney’s fees to the patient. It would be beneficial to have meticulous documentation of every contact with a prisoner, no matter how minor, to aid in rebutting any allegation of a patient being ignored or treated with “deliberate indifference.” Also, if the physician decides not to provide medications requested by a prisoner, there need to be meticulous con temporary records as to why the medication was denied to avoid the allegation that medical treatment is being withheld.  

References
1. West v. Atkins, 487 U.S. 42, 48 (1988).
2. Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (emphasis added).
3. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477, 484 (1974).
4. Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534, 546 (1982) (private nursing home subject to state regulation not engaged in state action) (emphasis in original).
5. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).
6. North Colorado Medical Center, Inc. v. Nicholas, 27 P.3d 828, 834 (Colo. 2001).
7. See Youngberg v. Romero, 457 U.S. 307 (1982).
8. Estelle v. Gamble, 429 U.S. 97, 101, 103 (1976).
9. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
10. DeShaney v Winnebago, 489 U.S. 189, 195 (1989).
11. Davidson v Cannon, 474 U.S. 344, 348 (1986).
12. Youngberg v. Romero, 457 U.S. 307, 317 (1982).
13. DeShaney v Winnebago, 489 U.S. 189, 198.
14. Hathaway v Coughlin, 99 F.3d. 550 (2nd Cir. 1996).


Mr. North is a senior member at North, Pursell & Ramos, PLC, in Nashville. Dr. Regan is an associate clinical professor of psychiatry at Vanderbilt University School of Medicine and an associate with NPR; Mr. Hadley is a member at NPR with a practice that includes defending physicians in malpractice and licensure actions.