By Dude J. Rose

Prisoners have an eighth amendment right to adequate medical treatment. When bringing a claim of inadequate medical treatment, the plaintiff/prisoner must allege and show deliberate indifference on the part of the defendants towards the prisoner's medical needs and treatment.

The Supreme Court has adopted the "deliberate indifference" standard to determine whether officials display the requisite culpable state of mind with respect to conditions of confinement, as well as medical care and treatment of prisoners. See: Wilson v. Setter, 111 S. Ct at 2326-27 (1991).

What one must understand prior to bringing a § 1983 action dealing with inadequate medical treatment is, neither accidents nor inadvertent failure to provide adequate medical care constitutes deliberate indifference to a prisoner's serious medical needs. See: Estelle v. Gamble, 429 U.S. 97, 106 (1976). Also it should be noted that mere negligence does not constitute deliberate indifference. See: Wilson, 111 S.Ct. at 2328.

The Circuit courts are unclear as to the requisite degree of subjective intent on the part of prison officials in order to raise an eighth amendment claim. Liability for violations of the eighth amendment has two components, objective and subjective. In a 1992 decision, the Seventh Circuit held, "The objective component is the nature of the acts or practices alleged to constitute cruel and unusual punishment... The subjective component is the intent with which the acts or practices are inflicted." See: Jackson v. Duckworth, 955 F.2d 21 (7th cir. 1992).

The Sixth Circuit held: "No deliberate indifference found when no objective evidence presented that prisoner suffered serious deprivation because injuries not serious enough to require immediate medical attention and no evidence presented to show or prove a culpable state of mind by prison officials." See: Caldwell v. Moore 968 F.2d 595 (6th Cir. 1992).

The Sixth Circuit seems to base their decisions in eighth amendment cases on the severity of the objective deprivation in order to decide if the alleged actions of officials support a finding of culpable state of mind. The Eighth Circuit, on the other hand, places emphasis on the subjective component. This requires the prisoner to present proof of reckless disregard by the officials in order to meet the deliberate indifference standard See: Degidio v. Pung, 920 F.2d.525,533 (8th Cir. 1990).

The Ninth Circuit has ruled that access to medical personnel is absolutely meaningless if they are incompetent to provide prisoners with adequate care. See: Ortiz v. City of Imperial, 884 F.2d.1312 (9th Cir. 1989). The Eleventh Circuit, however, has declined to extend a requirement of medical competence to the treatment of HIV-positive prisoners. See: Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991). In Hill v. Marshall, 962 F.2d 1209 (6th Cir. 1992), the prisoner was awarded $95,000 by a jury for injury and distress suffered when prison officials improperly administered a tuberculosis drug, placing the prisoner at high risk of contracting the disease. Punitive damages were proper in that case where the prisoner formulated and proved deliberate indifference to his medical needs -- not an easy task.

So we come to the question of what type of claims will actually be proper under the deliberate indifference standard? Deliberate indifference to prisoner's medical needs may be shown, for example, by proving that there are such systemic and gross deficiencies in medical staffing, facilities, equipment, or procedures that the inmate is effectively denied medical care and/or access to adequate medical care. See: Ramos v. Lamm, 639 F.2d 559,575 (10th Cir. 1980), cert denied, 450 U.S.1041,101 S.Ct.1759 (1981).

Although incidents of malpractice standing alone will not support a claim of eighth amendment violation, See: Mandel v. Doe, 888 F.2d 787-88 (11th Cir. 1989), a series of incidents closely related in time may disclose a pattern of conduct amounting to deliberate indifference. See: Rogers v. Evans, 792 F.2d 1052,1058 (11th Cir. 1986). Repeated examples of delayed or denied medical care may indicate a deliberate indifference by prison authorities to the suffering that results out of such delays and/or denials alleged. See: Todaro v. Ward, 656 F.2d 48,52 (2d Cir. 1977). Grossly incompetent medical care or choice of an easier but less efficacious course of treatment can constitute deliberate indifference. See: Nurrell v. Bennett, 615 F.2d 306 (5th Cir. 1980).

You should know that treatment itself may violate eight amendment rights if it involves something more than a medical judgment call, an accident, or inadvertent failure. Prison personnel may not subject prisoners to acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. See: Estelle, Supra. The Supreme Court has, declared that such "deliberate indifference" by a correctional system to the serious medical needs of its prisoners constitutes the kind of "unnecessary and wanton infliction of pain" that is proscribed and prohibited by the eighth amendment as it applies to states through the due process clause of the fourteenth amendment. See: Robinson v. California, 370 U.S. 660, 66, 82 S.Ct. 1417,20 (1962) See also: Gregg v. Georgia, 428 U.S. 153,73, 96 S.Ct. 2909,29 25 (1976).

A prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to a prisoner and fails to respond or intervene on behalf of the prisoner. See: Young v. Quinlan, 960 F.2d 351,360-61 (3rd Cir. 1992). There is deliberate indifference when the state of mind of the officials indicated a recklessness in a "criminal - law sense, requiring actual knowledge of impending harm, easily preventable." See: DesRosiers v. Moran, 949 F.2d 15 (lst Cir. 1991).

I hope that I've shed light on this topic that some of you readers out there may find helpful in some manner and to some degree. The issue of medical care for prisoners is a vast and complicated one which always requires a lot of research. It doesn't help much that the circuits all seem to be split on the issue. A good piece of advice is to research the applicable standard relied upon by your respective circuit court for their findings of what may constitute deliberate indifference to a prisoner's medical needs.

Here is a simple, four point summary of the steps required to research and prepare your case: 1) A § 1983 action must allege a violation of federal law(s). 2) A § 1983 eighth amendment claim based upon inadequate medical care must show proof of deliberate indifference by prison officials. 3) be sure the defendant(s) is/was an official acting under color of state law. 4) be precise about which official(s) committed or failed to do the acts you are alleging. If you have a legitimate claim, and you effectively comply with these four steps and support your claim with the proper case law, especially decisions from your area circuit court, your chances of surviving the state's endless motions for summary judgment are dramatically increased.

One important thing to keep in mind, injuries caused by governmental negligence that have been dismissed upon initial review or simply are not redressable under the constitution may very well be sufficient to state a claim under your individual state tort law. The state code should be the first place you look to see if you actually can take your claim in that direction and forum. One final word of advice and a tactic which I have personally used and found to be strategically beneficial in this area: file grievances and written requests. We are all painfully aware that if prison officials aren't willing to do the right thing, then that's all there is to it. All the grievances and written or verbal requests in the world aren't going to influence their decisions or lack thereof. Generally a properly formulated §1983 suit doesn't require a claimant to exhaust available state judicial or administrative remedies before seeking federal judicial relief. See: Bressman v. Farrier, 900 F.2d 1305,1307 (8th Cir. 1990), cert. denied, 111 S.Ct. 1090 (1991). But as I said, this is a somewhat complicated issue which will require a lot of tedious research. The smarter litigants I've known at least try to get a good start on those methods of relief prior to the actual submission of their § 1983 complaint.

So go ahead and make the written requests and/or grievances to the proper officials. This tactic, regardless of its actual necessity, will provide you with crucial exhibits which may very well make and prove your case. If by some mere chance the officials do a flip-flop and act upon your grievances and written requests, you may get the proper treatment you should have been receiving and you may very well still have a claim due to the suffering that resulted out of their delay in providing the needed treatment. Not only can you still claim they are liable for their actions (or inaction), they will have basically admitted there was a delay and must now show a good reason why such delay occurred. I wish you all good luck and much success in the struggle we all face.

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