Here’s a possible claims scenario to consider – your correctional client
has a suit where the inmate is filing a medical malpractice allegation
as well as a civil rights violation for “deliberate indifference.” First
you ask “What exactly is this deliberate indifference? Are you telling
me that I have to provide coverage for my clients for deliberate acts
against inmates?” Well, actually yes – let me explain.
In 1976, the Supreme Court heard the case Estelle vs. Gamble. The
Eighth Amendment prohibits cruel and unusual punishment. Prior to
Estelle the Eighth Amendment had been applied only to cases in which a
mode of punishment (usually execution or torture) was at issue. Estelle
redefined the constitutional concept of “punishment.”
Facts of the Estelle vs. Gamble case: Texas prisoner J.W. Gamble was
injured when a bale of cotton fell on him from a truck he was unloading
as part of a prison work assignment. He continued to work but after four
hours he became stiff and was given a pass to the prison hospital. He
was examined and no treatment was given but he was sent to his cell.
After his pain intensified he was given pain medication by a nurse and
examined by a doctor and diagnosed with a lower back strain. He was
given a bed rest pass for two days. When he had not improved they had
him continue on his medication and the pass was extended for another
seven days. He continued follow-up with the doctor and was given
additional medications and extended passes. After almost a month of
treatment and rest he was taken off of the bed rest pass and certified
by the doctor to return to light work, despite his protests. He
continued to take a muscle relaxant. When Gamble refused to report for
work he was placed in segregation and brought before a disciplinary
committee. The disciplinary panel arranged for further medical
examination but Gamble continued to refuse to work. While Gamble was in
segregation he experienced chest pain that went untreated for four days
despite requests of the guards for treatment. When he was seen by a
doctor he was diagnosed with irregular cardiac rhythm and prescribed
Gamble then brought suit and it was dismissed, but he obtained counsel
and the case made it to the U.S. Supreme Court. The Supreme Court
observed that the government has an obligation to provide prisoners
medical care and that, in some cases, the failure to provide that care
may actually produce the type of “physical pain or death,” which may
also be seen as cruel and unusual punishment and that is what the Eighth
Amendment was intended to prevent.
The court determined that failure to provide medical care rose to this
level of torture when the state (in this case the physician working at
the jail) displays “deliberate indifference to a serious medical need”
of the prisoner.
So that is the origin of the term “deliberate indifference.” To
constitute an Eighth Amendment violation for inadequate medical care
there must be both an objectively serious medical condition and
deliberate indifference to that condition.
There are many issues surrounding a medical malpractice claim in
corrections that cross Federal and State jurisdictions and you need a
carrier that has experience navigating all of these issues.
I would be very interested to hear your comments on this issue.