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Pro Se Tips and Tactics
By John Midgley
Many prisoners have difficulties obtaining good medical care. Often prisoners assume that every failure on the part of the prison system to provide adequate medical care is a constitutional violation that can be remedied in federal court, but this assumption is not correct. In this column, I discuss what kinds of medical care claims do raise constitutional issues and also other avenues you might pursue if you have a strong claim that medical care was inadequate but do not have a constitutional claim.
1. Constitutional Claim or Malpractice Claim?
As part of the Eighth Amendment's prohibition on "cruel and unusual punishments," prisoners may not be denied basic medical services. In the medical care context, the Eighth Amendment is violated by "deliberate indifference" to "serious medical needs." Estelle v. Gamble, 429 U.S. 97 (1976). However, the Eighth Amendment does not provide a remedy for medical malpractice, that is, an error in judgment by a qualified professional acting without deliberate indifference. Id.
The thrust of the Eighth Amendment protection is that prison officials must provide access to qualified medical providers, emergency care and follow-up of ordered care, and that prison medical staff cannot act indifferently to serious medical needs. See, e.g., Hoptowit v. Ray, 682 F.2d 1237, 1252-1254 (9th Cir. 1982). Usually, a prisoner's mere disagreement with the course of treatment by a medical professional falls far short of establishing an Eighth Amendment claim, and is instead at most a claim that medical staff was negligent. If medical staff was negligent but did not act with deliberate indifference, then that staff has committed medical malpractice, which violates state tort law but is not a constitutional violation. (Note, however, that the fact that a prisoner received some medical attention often, but not always, forecloses an Eighth Amendment claim. See Hemmings v. Gorczyk, 134 F.3d 104,10809 (2d Cir.1998)).
2. What Is Needed To Prove A Constitutional Claim?
In order to make out a constitutional medical care claim, you must be able to prove two elements -- "deliberate indifference" to a "serious medical need."
(a.) Proving Deliberate Indifference: Deliberate indifference can be shown by any of the following:
i. Denial of or delay in access to medical personnel: See, e.g., Weyant v. Okst,101 F.3d 845, 856-57 (2d Cir.1996) (delay of hours in getting medical attention for diabetic in insulin shock raised question of deliberate indifference); H.C. by Hewett v. Jarrard, 786 F.2d 1080,1083, 1087 (11th Cir.1986) (isolation of injured depravation of medical attention for three days). Delay is evaluated in the context of the prisoner's particular medical condition and whether swift action was needed.
ii. Denial of access to medical practitioners qualified to address the prisoner's medical problem: See, e.g., Howell v. Evans, 922 F.2d 712, 723 (11th Cir. 1991) (failure to provide access to a respiratory therapist could constitute deliberate indifference), vacated as settled, 931 F.2d 711 (11th Cir. 1991); Mandel v. Doe, 888 F.2d 783, 789-90 (11th Cir.1989) (physician assistant failed to diagnose a broken hip, refused to order an x-ray, and prevented the prisoner from seeing a doctor).
iii. Failure to inquire into facts necessary to make a medical judgment: See, e.g., Liscio v. Warren, 901 F.2d 274, 27677 (2d Cir.1990) (physician failed to inquire into the cause of arrestee's delirium and thus failed to diagnose alcohol withdrawal); Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (doctor failed to perform tests for cardiac disease in patient with symptoms that called for them).
iv. Interference with medical judgment by budgetary or other non-medical factors: See, e.g., Anderson v. County of Kern, 45 F.3d 1310 (9th Cir.), amended, 75 F.3d 448, cert. denied, 516 U.S. 916 (1995)(failure to provide a translator for medical encounters can constitute deliberate indifference); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir.1988), vacated, 494 U.S.1091(1989), reinstated, 886 F.2d 235 (9th Cir.1989), cert. denied, 494 U.S.1091(1990)(understaffing such that psychiatric staff could only spend "minutes per month" with mentally ill prisoners); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (budgetary restrictions).
v. Failure to carry out medical orders: See, e.g., Estelle v. Gamble, 429 U.S. at 105 ("intentionally interfering with the treatment once prescribed"); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996) (denial of prescription eyeglasses); Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (nurse's failure to perform prescribed dressing change); Erickson v. Holloway, 77 F.3d 1078, 1080 (8th Cir. 1996) (correctional staff interference with physician orders); Murphy v. Bray, 51 F.Supp. 2d 877 (SD Oh. 1999)(jail doctor ordered that prisoner's AIDS medications should be allowed to be brought to him from outside, but jail practice prevented outside medications from coming in).
vi. Treatment so incompetent or lazy it isn't really "medical": "Medical treatment that is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness" constitutes deliberate indifference, as does "[a] doctor's decision to take an easier and less efficacious course of treatment." Adams v. Poag, 61 F.3d 1537,1543-44 (11th Cir.1995). See also Smith v. Jenkins, 919 F.2d 90, 93 (9th Cir. 1990) (prisoner entitled to prove that treatment "so deviated from professional standards that it amounted to deliberate indifference"); Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (doctor's throwing away prisoner's severed ear and stitching the stump, rather than trying to reattach it, may constitute deliberate indifference).
(b.) What Is A Serious Medical Need?
A "serious medical need" is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity of a doctor's attention." Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176,1187 (11th Cir.1994). Alternatively, "[a] 'serious' medical need exists if the failure to treat the need could result in further significant injury or 'unnecessary and wanton infliction of pain.'" Carnell .v Grimm, 872 F. Supp. 746, 755 (D. Hawai'i 1994), appeal dismissed in part, affirmed in part, 74 F.3d 977 (9th Cir.1996).
This is largely a common-sense inquiry. Conditions that result in significant and unnecessary pain will usually be found to constitute serious medical needs. See, e.g., McGuckin v. Smith, 974 F.2d 1050,1060 (9th Cir. 1992) ("chronic and substantial pain"); Martin v. DeBruyn, 880 F. Supp. 610, 614 (N.D. Ind. 1995) (ulcers); Starbeck v. Linn County Jail, 871 F. Supp. 1129 (N.D. Iowa 1994) (herniated disk).
Similarly, conditions that result in disability or loss of function, even without pain, will constitute serious medical needs. See, e.g., McGuckin, 974 F.2d at 1060 (condition that "significantly affects an individual's daily activities" is serious); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (loss of vision).
So, not every failure by a prison medical professional to provide proper treatment is a constitutional violation. Only where there is a serious medical need and you can prove "deliberate indifference," which is hard to prove, will you be able to claim a constitutional violation. For example, it is not a constitutional violation for a doctor to simply make a mistake, such as botching surgery. In that kind of case, you have been sent to a qualified medical professional who has recognized your problem and started on a course of appropriate treatment. Thus, your constitutional right of access to medical care has been satisfied. When the operation was botched, the doctor has done no more than be negligent, which could give you the opportunity to file a state-court civil suit for malpractice, but it would not support a federal constitutional claim.
3. What Kind of Case Should I File?
In cases in which you might be able to argue that there was a constitutional violation, but you have a strong claim that there was at least malpractice, you should consider filing a lawsuit in state court in which you make both claims. State courts have jurisdiction over federal claims under 42 U.S.C. § 1983, and so you can put both claims into your state court lawsuit. See report of a successful state suit raising both kinds of claims, Griffin v. Maricopa County, in the July 2000 PLN at page 11.
Technically, you could bring both claims in federal court as well, but your chances of staying in federal court are not good in many cases. In federal court, if the court finds you have a strong enough constitutional claim to go to trial, the court can in its discretion allow the state court malpractice claim to stay in the case as well. However, if the federal court finds that you do not have a strong enough constitutional claim to go forward, it will dismiss the entire lawsuit without looking into the state-law malpractice claim. In state court, by contrast, even if the constitutional claim is dismissed, you will, if you have a strong enough case, be able to stay in court on the state-law-based malpractice claim no matter what happens to the constitutional claim
4. The Need For Expert Testimony And Legal Representation
Except in situations where the lack of adequate care is obvious, you will be very unlikely to win a case on prison medical care, whether a constitutional or a malpractice claim, without expert medical testimony. Very few courts or juries will rule on behalf of a person complaining about medical treatment without hearing from a medical expert who says that what happened would not have happened if the medical system or the medical professionals involved had acted properly.
Unfortunately, medical experts are expensive and it is extremely hard for people who are locked up to find experts and convince them that they are going to get paid. The best way to get a medical expert is to find an attorney who will pursue your case for you, and who will hire medical experts to help with the case.
If you cannot afford to pay a lawyer but have a strong case, then you may be able to find a lawyer willing to represent you on a "contingency basis" (the lawyer will pay the costs of the case up front and will get paid only if he or she is able to win money from the defendants). Lawyers will not take a case on contingency unless they believe they will win enough money to both pay the costs and get paid decently themselves.
If you are in federal court and have a strong constitutional claim, you can request the court to appoint counsel for you. Judges in some federal districts will appoint counsel in prisoner cases that look meritorious. State judges may or may not have the ability to appoint counsel, depending on the law in the state where your case is filed.
This column provides general information about the law, not specific advice for your case. As always, you should do your own research based on the facts of your case.
This column relies heavily on materials I co-wrote with David Fathi, now of the National Prison Project. In writing those materials we drew on work done by John Boston, New York Legal Aid Society. - John Midgley
Many prisoners have difficulties obtaining good medical care. Often prisoners assume that every failure on the part of the prison system to provide adequate medical care is a constitutional violation that can be remedied in federal court, but this assumption is not correct. In this column, I discuss what kinds of medical care claims do raise constitutional issues and also other avenues you might pursue if you have a strong claim that medical care was inadequate but do not have a constitutional claim.
1. Constitutional Claim or Malpractice Claim?
As part of the Eighth Amendment's prohibition on "cruel and unusual punishments," prisoners may not be denied basic medical services. In the medical care context, the Eighth Amendment is violated by "deliberate indifference" to "serious medical needs." Estelle v. Gamble, 429 U.S. 97 (1976). However, the Eighth Amendment does not provide a remedy for medical malpractice, that is, an error in judgment by a qualified professional acting without deliberate indifference. Id.
The thrust of the Eighth Amendment protection is that prison officials must provide access to qualified medical providers, emergency care and follow-up of ordered care, and that prison medical staff cannot act indifferently to serious medical needs. See, e.g., Hoptowit v. Ray, 682 F.2d 1237, 1252-1254 (9th Cir. 1982). Usually, a prisoner's mere disagreement with the course of treatment by a medical professional falls far short of establishing an Eighth Amendment claim, and is instead at most a claim that medical staff was negligent. If medical staff was negligent but did not act with deliberate indifference, then that staff has committed medical malpractice, which violates state tort law but is not a constitutional violation. (Note, however, that the fact that a prisoner received some medical attention often, but not always, forecloses an Eighth Amendment claim. See Hemmings v. Gorczyk, 134 F.3d 104,10809 (2d Cir.1998)).
2. What Is Needed To Prove A Constitutional Claim?
In order to make out a constitutional medical care claim, you must be able to prove two elements -- "deliberate indifference" to a "serious medical need."
(a.) Proving Deliberate Indifference: Deliberate indifference can be shown by any of the following:
i. Denial of or delay in access to medical personnel: See, e.g., Weyant v. Okst,101 F.3d 845, 856-57 (2d Cir.1996) (delay of hours in getting medical attention for diabetic in insulin shock raised question of deliberate indifference); H.C. by Hewett v. Jarrard, 786 F.2d 1080,1083, 1087 (11th Cir.1986) (isolation of injured depravation of medical attention for three days). Delay is evaluated in the context of the prisoner's particular medical condition and whether swift action was needed.
ii. Denial of access to medical practitioners qualified to address the prisoner's medical problem: See, e.g., Howell v. Evans, 922 F.2d 712, 723 (11th Cir. 1991) (failure to provide access to a respiratory therapist could constitute deliberate indifference), vacated as settled, 931 F.2d 711 (11th Cir. 1991); Mandel v. Doe, 888 F.2d 783, 789-90 (11th Cir.1989) (physician assistant failed to diagnose a broken hip, refused to order an x-ray, and prevented the prisoner from seeing a doctor).
iii. Failure to inquire into facts necessary to make a medical judgment: See, e.g., Liscio v. Warren, 901 F.2d 274, 27677 (2d Cir.1990) (physician failed to inquire into the cause of arrestee's delirium and thus failed to diagnose alcohol withdrawal); Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (doctor failed to perform tests for cardiac disease in patient with symptoms that called for them).
iv. Interference with medical judgment by budgetary or other non-medical factors: See, e.g., Anderson v. County of Kern, 45 F.3d 1310 (9th Cir.), amended, 75 F.3d 448, cert. denied, 516 U.S. 916 (1995)(failure to provide a translator for medical encounters can constitute deliberate indifference); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir.1988), vacated, 494 U.S.1091(1989), reinstated, 886 F.2d 235 (9th Cir.1989), cert. denied, 494 U.S.1091(1990)(understaffing such that psychiatric staff could only spend "minutes per month" with mentally ill prisoners); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (budgetary restrictions).
v. Failure to carry out medical orders: See, e.g., Estelle v. Gamble, 429 U.S. at 105 ("intentionally interfering with the treatment once prescribed"); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996) (denial of prescription eyeglasses); Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (nurse's failure to perform prescribed dressing change); Erickson v. Holloway, 77 F.3d 1078, 1080 (8th Cir. 1996) (correctional staff interference with physician orders); Murphy v. Bray, 51 F.Supp. 2d 877 (SD Oh. 1999)(jail doctor ordered that prisoner's AIDS medications should be allowed to be brought to him from outside, but jail practice prevented outside medications from coming in).
vi. Treatment so incompetent or lazy it isn't really "medical": "Medical treatment that is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness" constitutes deliberate indifference, as does "[a] doctor's decision to take an easier and less efficacious course of treatment." Adams v. Poag, 61 F.3d 1537,1543-44 (11th Cir.1995). See also Smith v. Jenkins, 919 F.2d 90, 93 (9th Cir. 1990) (prisoner entitled to prove that treatment "so deviated from professional standards that it amounted to deliberate indifference"); Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (doctor's throwing away prisoner's severed ear and stitching the stump, rather than trying to reattach it, may constitute deliberate indifference).
(b.) What Is A Serious Medical Need?
A "serious medical need" is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity of a doctor's attention." Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176,1187 (11th Cir.1994). Alternatively, "[a] 'serious' medical need exists if the failure to treat the need could result in further significant injury or 'unnecessary and wanton infliction of pain.'" Carnell .v Grimm, 872 F. Supp. 746, 755 (D. Hawai'i 1994), appeal dismissed in part, affirmed in part, 74 F.3d 977 (9th Cir.1996).
This is largely a common-sense inquiry. Conditions that result in significant and unnecessary pain will usually be found to constitute serious medical needs. See, e.g., McGuckin v. Smith, 974 F.2d 1050,1060 (9th Cir. 1992) ("chronic and substantial pain"); Martin v. DeBruyn, 880 F. Supp. 610, 614 (N.D. Ind. 1995) (ulcers); Starbeck v. Linn County Jail, 871 F. Supp. 1129 (N.D. Iowa 1994) (herniated disk).
Similarly, conditions that result in disability or loss of function, even without pain, will constitute serious medical needs. See, e.g., McGuckin, 974 F.2d at 1060 (condition that "significantly affects an individual's daily activities" is serious); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (loss of vision).
So, not every failure by a prison medical professional to provide proper treatment is a constitutional violation. Only where there is a serious medical need and you can prove "deliberate indifference," which is hard to prove, will you be able to claim a constitutional violation. For example, it is not a constitutional violation for a doctor to simply make a mistake, such as botching surgery. In that kind of case, you have been sent to a qualified medical professional who has recognized your problem and started on a course of appropriate treatment. Thus, your constitutional right of access to medical care has been satisfied. When the operation was botched, the doctor has done no more than be negligent, which could give you the opportunity to file a state-court civil suit for malpractice, but it would not support a federal constitutional claim.
3. What Kind of Case Should I File?
In cases in which you might be able to argue that there was a constitutional violation, but you have a strong claim that there was at least malpractice, you should consider filing a lawsuit in state court in which you make both claims. State courts have jurisdiction over federal claims under 42 U.S.C. § 1983, and so you can put both claims into your state court lawsuit. See report of a successful state suit raising both kinds of claims, Griffin v. Maricopa County, in the July 2000 PLN at page 11.
Technically, you could bring both claims in federal court as well, but your chances of staying in federal court are not good in many cases. In federal court, if the court finds you have a strong enough constitutional claim to go to trial, the court can in its discretion allow the state court malpractice claim to stay in the case as well. However, if the federal court finds that you do not have a strong enough constitutional claim to go forward, it will dismiss the entire lawsuit without looking into the state-law malpractice claim. In state court, by contrast, even if the constitutional claim is dismissed, you will, if you have a strong enough case, be able to stay in court on the state-law-based malpractice claim no matter what happens to the constitutional claim
4. The Need For Expert Testimony And Legal Representation
Except in situations where the lack of adequate care is obvious, you will be very unlikely to win a case on prison medical care, whether a constitutional or a malpractice claim, without expert medical testimony. Very few courts or juries will rule on behalf of a person complaining about medical treatment without hearing from a medical expert who says that what happened would not have happened if the medical system or the medical professionals involved had acted properly.
Unfortunately, medical experts are expensive and it is extremely hard for people who are locked up to find experts and convince them that they are going to get paid. The best way to get a medical expert is to find an attorney who will pursue your case for you, and who will hire medical experts to help with the case.
If you cannot afford to pay a lawyer but have a strong case, then you may be able to find a lawyer willing to represent you on a "contingency basis" (the lawyer will pay the costs of the case up front and will get paid only if he or she is able to win money from the defendants). Lawyers will not take a case on contingency unless they believe they will win enough money to both pay the costs and get paid decently themselves.
If you are in federal court and have a strong constitutional claim, you can request the court to appoint counsel for you. Judges in some federal districts will appoint counsel in prisoner cases that look meritorious. State judges may or may not have the ability to appoint counsel, depending on the law in the state where your case is filed.
This column provides general information about the law, not specific advice for your case. As always, you should do your own research based on the facts of your case.
This column relies heavily on materials I co-wrote with David Fathi, now of the National Prison Project. In writing those materials we drew on work done by John Boston, New York Legal Aid Society. - John Midgley
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