“I’m Sorry, We’re Only Giving You Ibuprofen” A Critical Analysis of the Unenforceable Standard of Care in Prison By Ashley Austin

“I’m Sorry, We’re Only Giving You Ibuprofen”

A Critical Analysis of the Unenforceable Standard of Care in Prison

By Ashley Austin

The Eighth Amendment states that “cruel and unusual punishments” shall not be inflicted.[1]  In the past, this phrase had been originally construed to include “proscribing tortures and other barbarous methods of punishment.”[2] Starting in the 1900s, the Supreme Court began interpreting the Eighth Amendment in a more “flexible and dynamic manner.”[3] It has been stated that “(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[4] Furthermore, cruel and unusual punishment has been expressed as an “unnecessary and wanton infliction of pain.”[5] It was not until 1976 that the Court formally addressed medical treatment of prisoners in the context of the Eighth Amendment.[6]

In Estelle v. Gamble, a landmark 8-1 Supreme Court decision, the Court was tasked with determining under what circumstances withholding or mismanaging medical care constitutes a violation of the Eighth Amendment.[7]  In this case, the Court found that the government has an obligation to provide medical care for those currently incarcerated, stating that “[a]n inmate must rely on prison authority to treat his medical needs; if the authorities fail to do so, those needs will not be met.”[8] By applying Gregg v. Georgia’s standard of “unnecessary and wanton infliction of pain” to the government’s obligation to provide medical care, the Court in Estelle addressed what kind of medical treatment, or lack of medical treatment, could constitute a violation of the Eighth Amendment and result in a 42 U.S.C. §1983 claim alleging a violation of constitutional rights by a government agency.[9] Here, the court refused to consider anything less than “deliberate indifference to serious medical needs” as enough to amount to a constitutional violation.[10] They confirmed that, although prisoners are entirely reliant on the prisons to provide medical care, a simple failure to provide adequate care would not be sufficient to establish a claim.[11] Prisoners are required to allege acts or omissions directly relevant to showing deliberate indifference to medical needs.[12] Even negligence in diagnosing or treating an illness would not amount to a constitutional violation.[13] The Court made clear their view that “medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”[14]

This position, concerned with preventing courts from being overflowed with multiple §1983 claims, stands on the ground that prisoners remain able to challenge negligent medical treatment under state tort claims.[15] This division reserves only the most extreme cases for evaluation in federal court where both knowledge of a medical need and deliberate—or intentional—indifference toward the prisoner’s well-being and leaves every day malpractice to state courts. In a perfect society, this would be an acceptable replacement for challenging individual medical treatment that does not meet the necessary standard of care. However, the modern difficulties of bringing medical malpractice claims prevent prisoners from being able to successfully litigate a claim.

Medical malpractice is a medical professional’s “failure to exercise the same degree of care and skill that [other professionals] of the same medical specialty would use under similar circumstances.”[16] Every state has tort law provisions providing the statutory ability to bring claims against a professional for medical malpractice. However, it is commonly required that a plaintiff present expert testimony to show that the defendant’s treatment failed to meet the statutory standard of care.[17]

Many circuits have held that prisoners are not entitled to post-conviction counsel while incarcerated unless directly related to a conviction appeal.[18] Furthermore, any post-conviction claims brought not directly regarding the appeal of their conviction is considered civil in nature and does not require appointed counsel for indigent individuals, regardless of incarceration. As a result, most §1983 claims and medical malpractice claims brought by prisoners are brought pro se with the only assistance coming from prison self-help litigation manuals and the prison law library. As a pro se litigant, many prisoners are unable to afford to hire attorneys, much less expert witnesses required for successful medical malpractice claims.

Fortunately, there are services available in some states to assist prisoners in post-conviction litigation, either pertinent to their case or to the conditions of confinement. There are very few organizations that represent prisoners on post-conviction civil litigation. Two organizations that specialize in post-conviction representation of prisoners are the Prisoners’ Legal Services of Massachusetts and North Carolina Prisoner Legal Services. However, these organizations are extremely uncommon as many prisoner’s rights organizations do not represent individual clients. The organizations representing individual clients are often only focused on claims of innocence. These groups, commonly called Innocence Projects, are located throughout the United States and focus on proving actual innocence of the convicted through evidence unconsidered at the time of the conviction.

Outside of the discussed procedural barriers to allowing individual inmates to challenge their medical treatment, the standard established in Estelle is unlike many other standards established in constitutional challenges. The dissent in Estelle, authored by Justice Stevens, points out the extremely unique approach the majority takes in reversing the Fifth Circuit’s finding.[19] In the Fifth Circuit, the Court found that Gamble had alleged enough information for a §1983 claim to be brought in reversing the District Court’s dismissal on failure to state a claim.[20] The majority reversed this decision, finding that on the information provided alone, considered in the light most favorable to the plaintiff, was insufficient to establish deliberate indifference. Justice Stevens criticizes the standard established, while agreeing with the conclusion in this case. In his dissent Justice Stevens writes that “whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it.”[21] Justice Stevens highlights that, typically, constitutional standards are not concerned with the “indifference” of the individuals violating a right, just simply that the right is violated.

It is on this point that I stand with Justice Stevens. The requirement of establishing deliberate indifference, instead of extreme recklessness or negligence, allows for the mishandling of inmate healthcare to go effectively unchallenged in court. If we are to ask pro se inmate litigants to hire an attorney and expert witnesses to ensure their medical treatment is given to them by the government obligated to care for them, instead of providing pathways for the prisons to be held more accountable, we may as well require prisoners to pay for their own medication.

[1] U.S. Const. amend. VIII.

[2] Gregg v. Georgia, 428 U.S. 153, 169 (1976) (internal citations omitted).

[3] Id. at 170.

[4] Id. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

[5] Gregg, 428 U.S. at 173.

[6] Estelle v. Gamble, 429 U.S. 97, 102-03 (1976).

[7] See id.

[8] Id.

[9] Id. at 104.

[10] Id.

[11] Id. at 105 (Here, the court examines Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) and adopts Justice Reed’s argument that an “unforeseeable accident” is not a violation of the eighth amendment.).

[12] See id. at 104 (Examples given include deliberate indifference of the doctors to a medical need, prison guards denying or delaying access to care, or interference with prescribed treatment.).

[13] Id. at 105-06 (stating that “in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.”).

[14] Id. at 106.

[15] Id. at 107. (stating that “[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 under the Texas Tort Claims Act.”)

[16] Black’s Law Dictionary (10th ed. 2014).

[17] See, e.g., Lightsey v. Bessemer Clinic, 495 So.2d 35 (Ala. 1986); Curtis v. Santa Clara Valley Med. Ctr., 2 Cal.Rptr.3d 73 (Cal. Ct. App. 2003); Berk v. St. Vincent’s Hosp. and Med. Ctr., 380 F. Supp. 2d 334 (S.D.N.Y. 2005); White v. Vanderbilt Univ., 21 S.W.3d 315 (Tenn. Ct. App. 1999).

[18] See, e.g., U.S. v. Webb, 565 F.3d 789 (11th Cir. 2009); U.S. v. Legree, 205 F.3d 724 (4th Cir. 2000); U.S. v. Reddick, 53 F.3d 462 (2d Cir. 1995).

[19] Estelle, 429 U.S. at 109 (Stevens, J., dissenting).

[20] See Gamble v. Estelle, 516 F.2d 937, 941 (5th Cir. 1975), rev’d, 429 U.S. 97 (1976).

[21] Estelle, 429 U.S. at 116 (Stevens, J., dissenting).

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