M E D I C A L L I A B I L I T Y A N D H E A LT H C A R E L A W
Jailhouse Doc
By Andrew DeSimone and Jamie Wilhite Dittert
Defending Eighth Amendment Claims
Against Medical Providers
Andrew DeSimone is a member, and Jamie Wilhite Dittert is an associate, of Sturgill Turner Barker and
Moloney PLLC in Lexington, Kentucky. Mr. DeSimone defends physicians, multi-­specialty practice groups, and
hospitals from allegations of medical malpractice. He is active in DRI and is the publications chair for the Trial
Tactics Committee and is on the steering committee for DRI’s Medical Liability and Health Care Law Committee. Ms. Dittert’s practice encompasses insurance coverage analysis and litigation and the defense of a wide
range of personal injury claims, including medical malpractice. She is a member of the DRI Insurance Law, Trial
Tactics, and Young Lawyers Committees.
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4 In-House Defense Quarterly Summer 2016
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© 2016 DRI. All rights reserved.
The Eighth Amendment to the
United States Constitution
states “Excessive bail shall not
be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.) The federal courts have developed a considerable
body of law related to prisoner lawsuits alleging an Eighth Amendment violation by
medical providers, i.e., the medical care
provided to the inmate was so poor it gives
rise to a claim of “cruel and unusual punishment.” Typically, fee shifting statutes are
involved, which require the losing medical
provider to pay the attorneys’ fees of the
winning plaintiff. See, e.g., 42 U.S.C. §1988.
With a large prison population in the United
States, almost every medical provider will
treat an inmate at some point in his or her
career. With this confluence of medicine
and prison inmates, corporate and in-house
counsel for medical providers need to be
aware that these lawsuits can arise.
The application of the Eighth Amendment to inmate medical treatment is
grounded on the fundamental notion that
the Amendment not only prohibits excessive force, but also requires that prisoners
be afforded “humane conditions of confinement,” so that prison officials “ensure that
inmates receive adequate food, clothing,
shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). While prison
conditions are inherently “restrictive and
even harsh,” adverse conditions should
serve a corrective function. Id. (internal
citations omitted). Eighth Amendment
claims may have a broader reach than the
phrase “cruel and unusual punishment”
may suggest. But, as discussed below, case
law describing the standard of behavior
proscribed by the Eighth Amendment can
afford medical providers faced with Eighth
Amendment claims with opportunities for
early dismissal. This article will provide
pointers for the defense of a typical Eighth
Amendment claim. Additionally, this article discusses other applicable doctrines and
rules of evidence that are necessarily implicated in prisoner suits, which should not be
overlooked.
When Does the Eighth Amendment
Apply to a Medical Provider?
In general, the applicability of the Eighth
Amendment to a medical provider will
differ depending on whether the services at issue were rendered to an inmate
in (1) federal prison, or (2) a state or local
prison. In regards to federal prisons, the
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With a large prison
population in the United
States, almost every
medical provider will treat
an inmate at some point in
his or her career. With this
confluence of medicine and
prison inmates, corporate
and in-house counsel for
medical providers need
to be aware that these
lawsuits can arise.
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United States Supreme Court implied an
Eighth Amendment claim against federally employed medical providers in
Carlson v. Green, 446 U.S. 14 (1980),
expanding the seminal ruling of Bivens v. Six Unknown Fed. Narcotic Agents,
403 U.S. 388 (1971). With the increasing
privatization of prison care, however, the
federal government has contracted with
companies to provide medical care to its
inmates. The United States Supreme Court
has refused to extend Eighth Amendment
claims to these private companies and
their employees. See Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001);
Minneci v. Pollard, __ U.S. __, 132 S.Ct.
617 (2012). The rationale for this distinction is that the inmate has a state law rem-
edy against the federal contractor and its
employees under traditional state tort law.
Therefore, private medical providers who
have contracted with the federal government to provide medical care to federal
inmates are not liable under the Eighth
Amendment.
An entirely different, less favorable, paradigm applies to state and local prisons and
the medical providers therein. This body
of law applies to claims asserted against
employees of state and local prisons, private
contractors that provide medical services
at state and local prisons, and even outside consultants. Generally, the Fourteenth
Amendment to the United States Constitution makes the Eighth Amendment applicable to states. Furman v. Georgia, 408 U.S.
238 (1972). Under 42 U.S.C. §1983, a claim
can be made against the state or local governing body for an Eighth Amendment violation. See, e.g., Estelle v. Gamble, 429 U.S.
97 (1976). Moreover, case law allows Eighth
Amendment claims against private medical providers who have contracted with a
state or local entity to provide medical care
to those inmates, even where the private
medical provider’s prison work is a small
percentage of his practice. West v. Atkins,
487 U.S. 42 (1988). In West, the defendant
orthopedic physician had contracted with
North Carolina to provide two clinics each
week at the state prison, but he maintained
a private practice outside of the prison system. The Supreme Court stated that the
physician was acting under color of state
law, such that he became a “state actor.” Id.
at 55–56. Therefore, the physician could
be liable to the inmate under the Eighth
Amendment.
A slightly different analysis applies to
the entities that employ private medical
providers who render medical services to
state and local prison inmates. Generally,
the entity that employs the private medical provider is not liable under respondeat superior. See Natale v. Camden City
Corr. Facility, 318 F.3d 575 (3rd Cir. 2003).
However, the corporate entity may be liable if it has a policy, custom, or practice that
caused the constitutional violation. See,
e.g., Monell v. Department of Social Services, 436 U.S. 658 (1978); but see Shields v.
Illinois Dept. of Corrections, 746 F.3d 782
(7th Cir. 2014) (discussing why Monell
In-House Defense Quarterly Summer 2016 5
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M E D I C A L L I A B I L I T Y A N D H E A LT H C A R E L A W
should not be extended to limit corporate
liability under 42 U.S.C. §1983).
Finally, there appears to be a split of
authority regarding whether outside consultants who see the inmate solely in a
private practice setting and who have not
contracted with the state or local prison
system are liable under the Eighth Amendment. The Seventh Circuit has held that
“medical providers who have ‘only an incidental and transitory relationship’ with the
penal system are generally not considered
state actors.” Shields, 746 F.3d at 797-98
(quoting Rodriguez v. Plymouth Ambulance
Service, 577 F.3d 816, 827 (7th Cir. 2008)).
In contrast the Fourth Circuit, Conner v.
Donnelly, 42 F.3d 220 (4th Cir. 1994), found
that a private physician, who only saw the
inmate in his private office, and who did
not have a contract with the Commonwealth of Virginia, could be liable under
the Eighth Amendment.
Regardless of whether the private physician has a contractual duty or simply treats a prisoner without a formal
arrangement with the prison, the physician’s function within the state system is the same: the state authorizes
the physician to provide medical care
to the prisoner, and the prisoner has
no choice but to accept the treatment
offered by the physician. Even where a
physician does not have a contractual
relationship with the state, the physician
can treat a prisoner only with the state’s
authorization. If a physician treating
a prisoner—whether by contract or by
referral—misuses his power by demonstrating deliberate indifference to the
prisoner’s serious medical needs, the
prisoner suffers a deprivation under
color of state law.
Id. at 225 (emphasis added). Therefore,
there is a good chance that anytime a medical provider treats an inmate, even in his
or her private medical office, that he or she
can be liable under the Eighth Amendment.
Initial Analysis of the Eighth
Amendment Claim
Typically, a claim for a violation of the
Eighth Amendment will be coupled with
state law claims, like a claim for medical
malpractice. If the complaint is filed in
state court, it may be beneficial to remove
the matter to federal court under 28 U.S.C.
§1331. Deciding whether to remove the
action will depend on several factors, including familiarity with the judge in the
state court action, different pleading and
dispositive motion standards applicable in
federal and state tribunals, and the potential that the federal court might dismiss the
nity allows for an immediate interlocutory appeal if the trial court fails to find
that the suit is barred by immunity. Please
note that the interlocutory appeal can also
be taken at the close of discovery if the
trial court overrules the summary judgment motion. See Mitchell v. Forsyth, 472
U.S. 511 (1985).
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Deliberate Indifference
Many complaints that purport to assert
claims under the Eighth Amendment fail
to allege conduct that actually implicates
the Eighth Amendment. In the seminal
case of Estelle, the Supreme Court held
that “[i]n order to state a cognizable claim
[under the Eighth Amendment with regard
to medical care] a prisoner must allege acts
or omissions sufficiently harmful to evidence deliberate indifference to the plaintiff’s serious medical needs.” Estelle, 429
U.S. at 106. “A prison official is deliberately
indifferent if she knows of and disregards a
serious medical need or a substantial risk
to an inmate’s safety.” Saylor v. Nebraska,
812 F.3d 637, 644 (8th Cir. 2016) (quoting Farmer, 511 U.S. at 837 (1994)). Thus,
to survive a motion to dismiss, an inmate
must allege (1) a serious medical need and
(2) deliberate indifference on the part of
the medical provider. This is essentially
an objective and subjective test wherein
the prisoner must allege: (1) an objectively
serious injury; and (2) that the official
acted with a “sufficiently culpable state of
mind.” Wilson v. Seiter, 501 U.S. 294, 298
(1991).
As a matter of law, not every perceived
physical condition constitutes 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 for a doctor’s attention.” Youmans v. Gagnon, 626 F.3d 557,
564 (11th Cir. 2010) (internal quotations
and citations omitted). “In general, serious
medical needs are those requiring immediate medical attention.” Id. (internal quotations and citations omitted). Courts have
found that “serious medical needs” would
include a heart attack (Plemmons v. Roberts, 439 F.3d 818 (8th Cir. 2006)); abdominal pain (Al-Turki v. Robinson, 762 F.3d
1188 (10th Cir. 2014)); and stroke (Pimen-
Many complaints
that purport to assert
claims under the Eighth
Amendment fail to
allege conduct that
actually implicates the
Eighth Amendment.
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federal claims but allow the state claims
to be refiled in state court. See 28 U.S.C.
§1367(c).
As with any case, threshold defenses
such as those involving improper service of
process or failure to exhaust administrative
remedies should be reviewed. Generally,
the Prison Litigation Reform Act (PLRA),
42 U.S.C. §1997, et seq., precludes prisoners
from bringing suit under 42 U.S.C. §1983
until they have exhausted their administrative remedies, which can include establishing that sufficiently specific medical
grievances were submitted through prison
procedures and denied. See, e.g., 42 U.S.C.
§1997e(a); Booth v. Churner, 532 U.S. 731,
741 (2001); Porter v. Nussle, 534 U.S. 516,
532 (2002). If a claimant is preceding pro
se, he or she may have neglected to comply
with his or her duties regarding administrative remedies or service of process.
Once the analysis of the complaint and
other Rule 12 defenses is complete, the
typical course of action is to file a motion
to dismiss. This is important for two reasons: (1) many Eighth Amendment claims
are facially invalid, as discussed below;
and (2) the defense of qualified immu-
6 In-House Defense Quarterly Summer 2016
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M E D I C A L L I A B I L I T Y A N D H E A LT H C A R E L A W
tel v. Deboo, 411 F.Supp.2d 118 (D. Conn.
2006)). This prong of the deliberate indifference test can often provide grounds for
an early dismissal, for example, when the
inmate claims bruises and scrapes (Valdes
v. Crosby, 390 F.Supp.2d 1084 (M.D. Fla.
2005)); leg swelling (Jarriett v. Wilson, 162
Fed. App’x. 395 (6th Cir. 2005)); and discomfort from handcuffs (Ochs v. Thalacker,
90 F.3d 293 (8th Cir. 1996)).
Similarly, the subjective prong of an
Eighth Amendment claim should not be
overlooked. The Supreme Court, in Wilson v. Sieter, recognized that the Eighth
Amendment bars sadistic forms of punishment and, accordingly, defined the subjective “deliberate indifference” component
of an Eighth Amendment claim as follows:
“[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by” the
Eighth Amendment. Seiter, 501 U.S. at 299.
Thus, to satisfy the subjective portion of an
Eighth Amendment claim for inadequate
medical care, a prisoner must allege “more
than mere negligence, but ‘something less
than acts or omissions for the very purpose of causing harm or with knowledge
that harm will result.’” Foy v. City of Berea,
58 F.3d 227, 232 (6th Cir. 1995)(quoting
Farmer, 511 U.S. 825). This has been further
refined to mean reckless conduct. Farmer,
511 U.S. at 836.
Mere allegations of medical malpractice
or negligent diagnosis are not cognizable;
furthermore, allegations of a difference in
opinion between the inmate and his physician regarding the inmate’s treatment are
not sufficient to state a claim. Estelle, 429
U.S. at 106-107. The receipt of some medical care, however, will not automatically
defeat an Eighth Amendment claim. Further, deliberate indifference can be sufficiently pleaded through alleged conduct
such as medical providers acting contrary
to the recommendations of a specialist;
delays in medical treatment for a nonmedical reason that exacerbated pain; or
the administration of “blatantly inappropriate care.” Perez v. Fenoglio, 792 F.3d
768, 777 (11th Cir. 2014). When reviewing
a complaint for a possible failure to state a
claim under the Eighth Amendment, it is
important to analyze thoroughly whether
acts and omissions alleged against a med-
ical provider rise to the level of “cruel and
unusual punishment” prohibited by the
Eighth Amendment.
Qualified Immunity
The other threshold argument to consider
is qualified immunity. The United States
Supreme Court has held that a govern■
Therefore, a private medical
provider can be liable for
an Eighth Amendment
violation, but he or she
does not enjoy the benefits
of qualified immunity.
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ment official who performs discretionary functions is shielded from liability
for civil damages insofar as his conduct
passes a two-step test. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As the Court
explained in Mitchell, 472 U.S. at 526, qualified immunity:
is an entitlement not to stand trial under
certain circumstances. Such entitlement
is an immunity from suit rather than a
mere defense to liability; and like absolute immunity, it is effectively lost if a
case is erroneously permitted to go to
trial.
The Supreme Court held that the defense
of qualified immunity is available except
where the court finds that: (1) the “facts
alleged show the officer’s conduct violated a
constitutional right” of which a reasonable
person would have known; and (2) the violated “right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The
Supreme Court subsequently ruled that a
court can consider these prongs in either
order. Pearson v. Callahan, 555 U.S. 223,
236 (2009).
The first prong essentially inquires
whether the alleged wrongful act violates the Eighth Amendment. The second
prong inquires whether, even if a consti-
8 In-House Defense Quarterly Summer 2016
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tutional violation is present, the right was
so firmly established that the medical provider knew his or her actions were unconstitutional. A right is “clearly established”
when it is “sufficiently clear that a reasonable official would understand that what
he is doing violates that right.… [thus] in
the light of pre-­existing law the unlawfulness of the [official action] must be apparent.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). Consequently, this defense is
appropriate where a reasonable person
“could have failed to appreciate [that the
plaintiff’s rights] would be violated by his
conduct.” Pray v. Sandusky, 49 F.3d 1154,
1157 (6th Cir. 1995). In order for a law to be
clearly established, there must be “a particularized body of precedent that squarely
govern[s]” the cause of action. Lyons v.
City of Xenia, 417 F.3d 565, 579 (6th Cir.
2005). If reasonably competent state actors
could disagree on whether an action violates a plaintiff’s rights, courts generally
err on the side of recognizing immunity.
See Humphrey v. Mabry, 482 F.3d 840 (6th
Cir. 2007). Accordingly, defense counsel
should review case law within the applicable jurisdiction to determine whether the
conduct alleged on the part of the medical provider has been addressed through
precedent.
This defense, however, is not available
to employees of a private corporation providing medical care to inmates, or a private
medical provider seeing an inmate at her
office. See Richardson v. McKnight, 521 U.S.
399 (1997). The Supreme Court has held:
Since there are no special reasons significantly favoring an extension of governmental immunity, and since… private
actors are not automatically immune
(i.e., §1983 immunity does not automatically follow §1983 liability), we must
conclude that private prison guards,
unlike those who work directly for the
government, do not enjoy immunity
from suit in a §1983 case.
Id. at 412. Therefore, a private medical provider can be liable for an Eighth Amendment violation, but he or she does not enjoy
the benefits of qualified immunity.
Federal Rule of Evidence 609
If the case proceeds past the initial motion
phase, it will be litigated as a typical med-
ical malpractice case. However, if the case
survives summary judgment and is proceeding to trial, do not forget the importance of FRE 609 to an inmate lawsuit. FRE
609(a)(1)(A) states as follows:
The following rules apply to attacking a
witness’s character for truthfulness by
evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by
death or by imprisonment for more
than one year, the evidence:
(A)must be admitted, subject to Rule
403, in a civil case or in a criminal
case in which the witness is not a
defendant.
The United States Congress, in enacting
FRE 609, made a determination that evidence of a witness’ felony convictions is
relevant because it goes towards the “witness’s character for truthfulness.” See FRE
609(a)(1)(A). “The implicit assumption of
[FRE] 609 is that prior felony convictions
have probative value, and that probative
value is likely to vary depending on the
number and type of convictions.” United
States v. Burston, 159 F.3d 1328, 1336 (11th
Cir. 1998) (citing 28 Charles Alan Wright
& Victor James Gold, Federal Practice and
Procedure §6134, at 221-27 (1993)). Indeed,
FRE 609(a)(1)(A) uses the phrase “must
be admitted,” mandating that the trial
court admit evidence of felony convictions
unless a conviction fails the balancing test
of FRE 403.
Evidence that is admissible under FRE
609 extends beyond the bare fact that a
witness is a felon. For example, in Burston,
the Georgia criminal defendant alleged
that the trial court erred in prohibiting
the impeachment of a government witness through the witness’ four felony convictions. “The district court limited [the
defendant] to evidence that [the witness]
has a ‘felony conviction,’ apparently on the
ground that testimony as to the nature and
number of [the witness’] convictions lacked
probative value.” Id. at 1334. Citing to supporting cases from the Sixth, Seventh,
Eighth, Tenth, and D.C. Circuits, the Eleventh Circuit found this ruling to be error,
though harmless.
[The probative value of felony convictions], however, necessarily varies with
their nature and number.… Evidence
of a murder conviction says something
far different about a witness’ credibility
than evidence for a minor drug offense,
although both may constitute a prior felony conviction. Furthermore, evidence
of fifteen murder convictions says something different about a witness’ credibility than evidence of only one such
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Abundant case law,
however, allows counsel for
these providers to seek an
early dismissal successfully
when the allegations
of the complaint fail to
constitute a sufficiently
serious medical condition
or reckless conduct on
the part of the provider.
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conviction. We are not certain what
evidence of two convictions for theft
by unlawful taking, one conviction for
armed robbery and one conviction for
aggravated assault says about [the witness’] credibility, but we are certain
that the jury should have been given the
opportunity to make that decision.
Burston, 159 F.3d at 1335 (emphasis added)
(citing Doe v. Sullivan County, 956 F.2d 545,
551 (6th Cir. 1992)). The Eleventh Circuit
stated that “[w]e therefore conclude that
[FRE] 609(a)(1) requires a district court to
admit evidence of the nature and number
of a non-­defendant witness’ prior felony
convictions.” Id. at 1336.
The Sixth Circuit has taken a similar
approach. See, e.g., Donald v. Wilson, 847
F.2d 1191, 1197 (6th Cir. 1988). In Wilson, the plaintiff was an inmate at the
Southern Ohio Correctional Facility serving time for rape. He alleged personal and
constitutional injuries when he slipped in
the shower after his prosthesis was taken
from him; and in being forcibly removed
from his jail cell. Id. at 1193. At trial, the
inmate plaintiff ’s rape conviction was
admitted over his objection. The Sixth Circuit held the admission of the rape conviction proper, in part because the inmate
was a plaintiff in a civil lawsuit. Id. at 1195.
In conducting the FRE 403 balancing test
required under FRE 609, the Sixth Circuit stated affirmatively: “we cannot say
the probative value of the prior conviction [rape] was substantially outweighed
by prejudice.” Id. at 1197. In reaching this
decision, the Sixth Circuit was “influenced
by the fact that the jury already knew the
plaintiff was a convicted felon as the entire
scenario unfold[ed] in a jail. Thus, we do
not have the interjection of the criminal
record of a witness out of the blue.” Id. at
1198.
Based upon this case law, an inmate
plaintiff can be attacked with the nature
and number of the felony convictions.
Since the FRE 403 balancing test requires
that the prejudice substantially outweigh
the probative nature of the felony conviction, exclusion will be the exception and
not the rule. In the hands of a good defense
counsel, FRE 609 becomes a potent cross-­
examination tool.
Conclusion
Although the phrase “cruel and unusual
punishment” conjures images of severe
deprivation akin to torture, the case law
surrounding the Eighth Amendment has
extended it far beyond what “cruel and
unusual” may suggest to a layperson. An
Eighth Amendment claim is now a potential component of inmate suits against private medical providers, who see inmates
briefly in their practice. Abundant case law,
however, allows counsel for these providers to seek an early dismissal successfully
when the allegations of the complaint fail
to constitute a sufficiently serious medical
condition or reckless conduct on the part
of the provider. Moreover, the basic nature
of inmate suits provides counsel with additional tools in his or her arsenal that should
not be overlooked in the defense of these
medical providers.
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