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 medication.
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.