Legal and Legislative Updates

By Deana Johnson, JD

Posted on June 21, 2010 – Professionals Beware: No Deliberate Indifference Required For This Claim to Find You

In 1976, the U. S. Supreme Court did correctional professionals quite a favor; in the famous case of Estelle v. Gamble, the Court created a heightened standard of conduct known as deliberate indifference. Everyday negligence was no longer sufficient. If an inmate wanted to get past a motion challenging his pleadings, he had to show the provider knew of a substantial risk of serious harm and acted unreasonably despite this information.

Thereafter, while pro se prisoner suits remained a nuisance, providers were not kept awake at night worrying about having every treatment decision examined after-the-fact by a jury. Since prisoners could not meet the strict requirements for bringing state law medical malpractice cases, they were left with trying to get around the deliberate indifference standard on Section 1983 constitution claims.

Enter a new type of claim: retaliation.

Retaliation Claims: A Key Exception to the Deliberate Indifference Rule

Claims against correctional workers for retaliation are not subject the heighted deliberate indifference requirement. Instead, in order to get to a jury, an inmate has to show three things: (1) he/she engaged in protected conduct of which the defendant knew; (2) he/she experienced some adverse action; and (3) some causal connection between the protected conduct and the adverse action.

Protected conduct in the correctional setting would include an inmate filing a grievance, formal complaint, lawsuit or similar document. Adverse consequences can be broad and range from a delay in treatment to a complete discontinuation of medication. Different courts construe a “causal connection” differently, but in general there has to be some argument that time period between the two events was fairly close.

That is all that is required. Once the inmate shows these three elements, the providers actual intention is irrelevant. To demonstrate just how dangerous these claims are, read the following real-life example.

A Realistic Scenario

Envisioning a set of events leading a well-meaning professional to run headfirst into this legal doctrine is not difficult. Picture a psychiatrist scheduling a follow up appointment with a difficult patient. After each visit, this patient files a formal grievance complaining about the doctor and the treatment decisions. Of course, each grievance is more absurd than the last. This same patient had sued mental health professionals twice at other facilities, with both suits dragging out for month into years.

Additionally and unsurprisingly, the psychiatrist’s calendar is packed. Each appointment slot is coveted and direly needed by each patient on her growing caseload. She would normally schedule the difficult patient for a follow up visit after four weeks. She dreads the grievance that is sure to follow the next visit and knows that each encounter increases the probability that she will be sued by this patient when he decides that he is angry enough.

So, she schedules his follow-up visit for eight weeks out. This schedule gives everyone a month reprieve from the circus that follows each office visit and reduces the total number of visits she must conduct with the difficult patient over the course of his treatment. It also frees her schedule for one more visit with a patient who appreciates the treatment he receives.

Does this decision to move the visit back several weeks demonstrate deliberate indifference to the inmate’s medical needs? Not unless the doctor knew waiting an extra month would cause serious harm. Was it retaliation? In almost all courts, absolutely.

Unless the inmate demonstrated a serious need for a quick follow-up visit, moving the appointment back will not meet the heightened standard of deliberate indifference; however, for retaliation, a heightened standard does not exist. Here, the inmate had unquestionably engaged in constitutionally protected conduct in filing his formal grievance. Equally clear, the well-intentioned doctor took an adverse action against him by moving his appointment back from when it would normally be scheduled. Finally, there was a causal connection both in the timing of her decision and the reason: she wanted to avoid or simply delay the costly and wasteful grievances and lawsuits that were certain to follow. While arguably reasonable, the provider’s actions exposed her to a retaliation claim.

A More In-Depth Look at the Elements of Retaliation Claims

Protected Conduct

The most basic form of protected conduct is filing a lawsuit. It is a constitutional right for all individuals to make use of the court system and file suits to recover damages they believe they deserve. Many inmates abuse this right and flood the legal system with baseless and costly suits that do nothing but burn valuable time and resources; nonetheless, that does not take way their right to file the suits. In fact, the nature or validity of the suit has no bearing whatsoever on the fact that filing the suit was protected conduct and therefore, is not a defense to a retaliation claim.

Informal conduct can be protected as well. The filing of formal and informal grievances is without question protected conduct. Even letters of complaint to the prison supervisors can constitute protected conduct.

Adverse Action

The action taken against the inmate must be severe enough to deter a person of ordinary firmness from repeating the protected conduct in question after the retaliation. The conduct cannot be adverse in name only. Simple matters such as chastisement or warnings would not suffice to show the prisoner was retaliated against.

In the example above, if the prisoner were aware of that he was being treated less often than similarly situated patients due to his lawsuits and grievances, he may be deterred from filing the complaints as he had in the past. While this is unquestionably a desirable result, the process used to get there was improper.

Causal Link

The adverse action must be caused in some way by the protected conduct. This means that just because a prisoner filed a grievance or lawsuit and was then disciplined or denied some other request, does not mean that he has a retaliation claim. The adverse action in question must be in response to some degree to the protected conduct. The protected activity does not need to be the only cause of the adverse action, just one of the causes.

The decision by our overworked psychiatrist above to move the unfriendly patient down the schedule a bit was not solely motivated by the inmate’s grievances and lawsuits. The inmate was not in terrible condition, other inmates are in poor condition as well, and her schedule was bursting at the seams. The lawsuits and grievances were part of her decision though and that is enough to be considered retaliation.

Possible Saving Grace: Knowledge and Injury Defenses

Thankfully, the providers are not left defenseless. There are some arguments that can defeat a retaliation claim, the two most important of which are knowledge and injury.

A provider cannot by definition retaliate against a patient if they do not have actual knowledge of the protected conduct. If the psychiatrist in the example had not known about the prior grievances and lawsuits, she could argue that her decision to extend the time between visits was not retaliation. Simply being named in a grievance is not sufficient; the person taking the adverse action has to know about the protected conduct.

Another useful defense is injury. An inmate can recover damages for retaliation only if there is some type of arguable injury. Some adverse actions are severe enough to serve as injuries by themselves. For instance, punishing an inmate with solitary confinement may be considered an injury of its own, but a month-long delay in psychiatric care may not cause an inmate any suffering at all. That is the inmate’s burden to prove.

However, when the psychiatrist made the decision to move the date of the difficult patient’s follow-up visit, she took a serious risk. Any episode or symptoms of any kind that occur during that four-week period will give rise to a claim for retaliation.

Last Thought

The fact that the psychiatrist was at all times making the decisions she felt was best for all parties involved is not relevant. Were the inmate’s claim that she provided substandard care, her efforts to make the right decision might shield her from liability. But in retaliation cases, the doctrine of deliberate indifference is unavailable. By virtue of her actions, the psychiatrist risked going to trial and an adverse outcome.