By Deana Johnson, JD
Posted on September 18, 2011 – As a correctional healthcare provider, you are very familiar with the legal standard referred to as deliberate indifference. This standard applies to protect post-conviction inmates under the Eighth Amendment and pre-conviction persons under the Fourteenth Amendment and sets the constitutional level of conduct expected when rendering treatment in prisons and jails.
You may also know that correctional staff has a duty to protect inmates both from excessive force from officers and violence from other inmates. These claims are categorized as failure to protect under the Eighth Amendment. Did you know, however, that medical providers are more frequently being brought into failure to protect suits? This article examines why this trend may be developing and what it means for you.
What Exactly is a Failure to Protect Claim?
A typical failure to protect claim looks like this: inmate alleges that correctional staff failed to stop an attack by another inmate; failed to intervene quickly enough; and did not sufficiently monitor the area where the violence took place. If the suit involves medical providers, it usually is related to the treatment rendered post attack which, again, falls under the deliberate indifference standard.
In Pierson v. Hartley, USDC, Northern Dist. of Indiana, 00-CV-539 (2002), a pro se inmate filed an Eighth Amendment failure to protect claim, alleging that when a young, violent inmate became his new cellmate, he complained to correctional staff. Nine months later, the cellmate attacked Pierson, causing significant injuries. Pierson sued four DOC staff: two officers that refused to move him after his complaint; one who assigned the cellmate into his cell; and a fourth that refused to intervene in the attack. The case was tried to a jury, which found in favor of Pierson against the two officers who allegedly refused to separate the cellmates after Pierson voiced fears for his safety. The other two defendants were found not liable. Pierson won a total of $100,000.
The outcome in Pierson was unusual; the vast majority of failure to protect claims are decided in favor of the correctional staff on summary judgment. In fact, available jury verdict research for the past 20 years shows very few failure to protect cases going to trial and all but a handful of those resulting in defense verdicts.
Why are Failure to Protect Claims on the Rise?
It should come as no surprise that an increase in the population of jails and prisons coupled with shrinking government budgets has led to a strain on housing resources. Some institutions are housing more inmates per cell than the building design called for, while others are forced to allow persons who would ordinarily be single celled to double or triple bunk.
While housing decisions are traditionally made by the corrections staff, healthcare providers may be permitted to play a role in the decision, if only to voice an opinion. If the housing decision ends up, in hindsight, to facilitate violence, everyone with a role can be named in the resulting lawsuit.
Whether the source is an increased prison population, a more violent population or a combination of these and other factors, the fact is that more suits involving inmate-on-inmate violence are being filed, and more medical providers are being named as defendants. Due to the recentness of this trend, it is too early to analyze whether these claims will be any more successful against summary judgment motions or at trial than the traditional failure to protect claims described above; however, providers should be aware that their actions, or alleged inactions, can cause them to be named in these types of claims.
In What Ways can a Provider Fail to Protect an Inmate?
The newer suits alleging healthcare providers too are responsible for failure to protect encompass a variety of allegations. For instance, during screening or subsequent evaluations, did the providers fail to recognize the potential for violence in the attacker? How much of the criminal history did the provider know and did he/she seek to review prior treatment records? Did the provider miss important clues that the attacker was violent or the victim vulnerable to attack?
Another claim is that the prescriber did not provide correct medication to control violent tendencies. Perhaps the attacker was on certain medications in the free world that could not be prescribed in the correctional setting. Perhaps the provider could not verify prior prescriptions and compliance and, therefore, did not continue the inmate on any medications to control impulses. Even more surprisingly, some claims allege that the victim was the one not correctly medicated, leading him to attack another and end up getting injured in the resulting fight.
A frequent allegation is that the provider did not order single cell assignments for one or both inmates involved in the attack or assigned the incorrect mental health or medical classification to one or both inmates involved, which allowed the cell placement to occur.
Finally, if the provider was aware the victim voiced safety concerns, he can be named in a failure to protect lawsuit if he does not take reasonable steps to investigate and notify correctional staff of the safety issue. It is not enough to tell the victim to report the concern to correctional officers once the provider is on notice of a safety concern.
What Can Providers do to Protect Themselves?
The best defense to a deliberate indifference claim is for the provider to thoroughly document the patient encounter, differential diagnosis (if applicable) and plan. The same holds true for setting up a strong defense to the newer failure to protect claims.
If a patient voices a safety concern, thoroughly document the conversation, steps taken to investigate and specifics about how the concern was relayed to correctional staff with the ability to address it. If the patient advocates for a single cell, chart your ability, if any, to recommend same and reasons why you believe such cell placement is or is not medically necessary.
If you are asked to participate in housing assignment decisions, make sure your limited input and actual recommendation is documented. For instance, the provider could recommend a single cell in a restricted housing area due to a medical or mental health issue but, if space is not available, the inmate could end up in general population. If all the housing assignment documentation says is that the group met and cleared the inmate for general population, the provider’s differing recommendation is not preserved for the record. Further, if you recommend a cell with a camera or close observation by correctional staff, make sure that is documented, as well as the reasons for same.
Short of having a crystal ball or a clear stated intent, it is impossible to anticipate whether someone will turn violent against another; however, it is important to chart the information you have available during your evaluation, additional information you have requested and your plan to obtain same, the specific reason you find someone not to be a risk to themselves or others and your decision to change any medication regimen that the inmate allegedly was on preincarceration.
Thus, the more you treat inmate safety issues in the same way you approach the provision of healthcare to your patients, the stronger defense you create for any resulting failure to protect claim.
Ms. Johnson is an attorney with Insley and Race, LLC, in Atlanta, Georgia. Readers may contact her at djohnson@insleyrace.com.
