Medical Malpractice in Ja…

When you think of the term “medical malpractice,” you probably envision a hospital or doctor’s office. While medical malpractice usually takes place in traditional health care settings, it can take place in other places, too—including prisons and jails.

In addition to being a medical malpractice issue, health care in jails and prisons also constitutes a civil rights issue. A 1976 U.S. Supreme Court Case called Estelle v. Gamble established that “deliberate indifference” to a prisoner's serious illness or injury constitutes “cruel and unusual punishment,” which is forbidden by the 8th Amendment to the U.S. Constitution.

This issue seems especially timely right now. COVID-19 is a highly contagious and deadly disease that spreads rapidly in close quarters like jails and prisons. If you have a loved one in jail or prison, you may be wondering if they are getting adequate medical care. Let’s talk about what constitutes medical malpractice, and what is a civil rights violation, in the context of health care in a jail or prison setting.

Civil Rights Violation, Medical Malpractice, Neither, or Both?

You don’t have to be a lawyer, a doctor, or a constitutional scholar to realize that a loved one isn’t getting the best possible medical care while incarcerated. But at what point does that constitute medical malpractice, or a civil rights violation?

As mentioned above, “deliberate indifference” to serious health care needs is a violation of constitutional rights. As in Estelle v. Gamble, a federal claim may be filed under 42 U.S.C. § 1983, the section of federal law that authorizes lawsuits for deprivation of constitutional rights. However, that case didn’t find that there actually was deliberate indifference to Mr. Gamble’s health issues. He had been seen repeatedly by medical personnel and received treatment; he just hadn’t received the diagnostic tests and X-rays he believed he needed.

The court noted that while Mr. Gamble’s medical experience didn’t constitute “cruel and unusual punishment,” he might possibly have a claim for medical malpractice under state law. Medical malpractice doesn’t require deliberate indifference to a health issue. In a jail, prison, or any other setting in which medical treatment is provided, certain things must be proven to establish medical malpractice:

  • Duty: if an inmate needs medical care, the jail or prison has a duty to provide it, and the medical professional providing treatment has a duty to treat the patient as a reasonable professional in similar circumstances would do.
  • Breach of the duty: the treating professional violates the duty of care.
  • Injury: the inmate suffers injury or harm.
  • Causation: the medical professional’s breach of the duty of care caused the inmate’s injury.

For example, imagine an inmate suffered injury to his back working in the prison, and he was seen repeatedly by a doctor who examined him visually and gave him Tylenol but performed no other diagnostics. A reasonable doctor in that setting might have ordered an X-ray, which would have revealed the need for surgery. If the doctor did not order an X-ray, and the inmate suffered permanent injury because the X-ray and surgery were not performed, that might constitute medical malpractice.

“Deliberate indifference,” on the other hand, might require more serious failures on the part of the prison staff. For instance, if the inmate was injured under the same circumstances as the scenario above, but prison staff repeatedly ignored his requests to see a doctor despite his obvious anguish, that might rise to the level of deliberate indifference to an illness or injury.

Other examples of deliberate indifference might include:

  • Failing to provide an inhaler to an inmate having a severe asthma attack;
  • Delaying examination of an inmate with COVID-19 symptoms;
  • Failing to have in obvious pain from an unknown injury examined by a doctor or nurse:
  • Delaying treatment of a broken bone;
  • Purposely ignoring doctor’s orders to give medication, such as denying insulin to an insulin-dependent diabetic or medication to prevent seizures to an epileptic;
  • Failing to provide treatment to an inmate in withdrawal from opioids.

If a failure to provide medical care is serious enough to constitute “deliberate indifference” to a health issue, it might constitute medical malpractice as well.

What to Do if a Loved One Experienced Medical Malpractice in Jail or Prison

If you or a loved one did not receive the medical care needed in jail or prison, don’t assume that there is nothing that can be done about it. Consult an experienced medical malpractice attorney to discuss whether you may have a civil rights claim, a claim for medical malpractice, or both. If there is a claim worth pursuing, you will have only a limited amount of time to file it before the window shuts forever.

People don’t forfeit their right to care just because they are in jail or prison. You owe it to yourself or your loved one to at least investigate whether you have a claim with a reasonable chance of success. We invite you to contact The Fraser Law Firm P.C. to discuss your concerns.