The Washington State Association for Justice has published an article by attorney Ed Budge in the June, 2018 edition of the Trial News.
The article, which relates to new legal standards in cases involving inadequate medical care in jail, is reprinted below:
Medical Neglect in Jail: The Ninth Circuit Widens the Door to Section 1983 Claims
By: Edwin S. Budge
Medical neglect of jail inmates is one of the most pressing and underappreciated civil rights issues of our time. This may be due to the dramatic rise in the number of counties and cities that have chosen to contract-out their constitutional obligation to provide medical care to private correctional “healthcare” companies. These companies, unlike the counties and cities with which they contract, are for-profit entities that are in the business of bidding low on jail healthcare contracts and operating with a constant eye on their bottom line. But whether a jail’s healthcare is provided in-house (by the city or county itself) or contracted out to a private company, all jail healthcare must be delivered to jail inmates in a constitutionally-adequate manner. And private companies and their employees who provide jail healthcare services are considered “state actors” subject to the same constitutional requirements of the municipalities with whom they contract.
Far too often, jail inmates are victims of inadequate medical care—sometimes egregiously inadequate care. Many such people have never even been convicted of the crime for which they have been arrested and confined. These inmates are called “pre-trial detainees.” They are men, women, and even juveniles who have been arrested but who have not yet had their day in criminal court. They sit confined in a jail, presumed innocent, waiting for the criminal justice system to take its course. In the eyes of the law, pretrial detainees are just as innocent as anyone on the outside. The only difference is that they are behind bars.
Many of these individuals have medical needs—often serious ones. These include heart conditions, infections, drug and alcohol addictions, serious mental health problems, and every other medical or mental health condition experienced by the population at large. But, unlike a free person, people who sit confined in jail are not able to seek and obtain their own medical care. Rather, when it comes to medical care, these individuals are entirely at the mercy of whatever healthcare the jail chooses to provide to them. Sometimes, jail medical personnel provide appropriate and adequate care. Too often, though, pretrial detainees are victims of poor care, atrocious care, or even no care at all.
When bad medical care harms a pretrial detainee or results in his or her death, a garden-variety negligence claim is one avenue to pursue. But in some cases, there is a better path. A constitutional claim under 42 U.S.C. § 1983 can offer major advantages over a regular negligence claim. For one, attorneys’ fees go to the winning plaintiff. For another, punitive damages may be available, particularly in the more egregious cases. Additionally, when poor medical care causes death to a person without the requisite beneficiaries under Washington’s draconian wrongful death and survival statutes, a constitutional claim offers a well-paved path around the limitations that would otherwise bar claims under state law. Finally, there are sometimes good reasons to escape small-county courts into the more rarified air of federal court—and Section 1983 will take you there.
For many years, the biggest disadvantage to pursuing Section 1983 medical neglect claims was the much-higher standard of proof that was required. For reasons I regard as essentially whimsical, courts have long held that the rights of pretrial detainees to adequate medical care were no greater than the rights of convicted prisoners. The rights of convicted prisoners arise under the 8th Amendment’s “cruel and unusual punishment” clause, whereas the rights of pretrial detainees arise under the due process clause of the 14th Amendment. Regardless of whether a person was a convicted prisoner or a pretrial detainee, courts had long held that the standard of proof in medical neglect cases was the same. In order to make out a constitutional claim, a plaintiff had to show that the medical care was so terrible—so atrocious, appalling, and dreadful—that it could be said that the medical defendants were “deliberately indifferent” to the plaintiff’s serious medical needs. Under this standard, a plaintiff could only prevail by showing that he or she had serious medical needs, that the medical defendants were subjectively aware of them, and that they consciously disregarded them knowing that the plaintiff would probably be harmed as a result. This high standard of proof meant that much more than negligence or even gross negligence was required. Under this standard, serious cases of medical neglect in jail were often dismissed on summary judgment for lack of evidence of the medical provider’s subjectively-bad state of mind.
The first tiny crack in this high standard appeared in 2015 when the Supreme Court decided Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). Kingsley was not a medical neglect case—it was an excessive force case. But the case was significant because it held that that proof of the defendant’s subjective awareness was not required in cases of excessive force against pretrial detainees.
The next little crack in the law happened in 2016, when the Ninth Circuit decided a case called Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Castro was not a medical neglect case either—it was a case involving a claim that jailors failed to protect an inmate from violence by another inmate. But it was an important case because, relying on Kingsley, the Ninth Circuit held that proof of deliberate indifference was not required when jailors failed to protect a pretrial detainee from acts of violence by others. Using Kingsley as a springboard, the Ninth Circuit held that the test in failure to protect claims was now an objective one rather than a subjective one—a lower standard that does not require proof of the defendants’ culpable state of mind.
After Castro, the cracks were at least wide enough that an argument could be made for a lower standard of proof in cases of medical neglect of pretrial detainees. A few district court cases bought into this lower standard, but others did not. Even within the Ninth Circuit, district courts were split (and confused) about whether to apply a subjective standard or an objective standard to cases involving medical neglect of pretrial detainees.
This spring, however, the Ninth Circuit became the first circuit court in the country to extend Kingsley and Castro to cases involving medical neglect of pretrial detainees. On April 30th, the Ninth Circuit issued its decision in Gordon v. County of Orange, No. 16-56005, 2018 U.S. App. LEXIS 10977 (9th Cir. April 30, 2018). Gordon held, for the first time, that pretrial detainees victimized by inadequate medical care no longer had to meet the stringent subjective deliberate indifference test. In Gordon, the new test was articulated as follows:
[T]he elements of a pretrial detainees’ medical care claim against an individual defendant under the due process clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.
Id. at 12-13. The Ninth Circuit emphasized that “[w]ith respect to the third element, the defendant’s conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the fact and circumstances of each particular case.’” Id. at 13.
For as long as the Ninth Circuit’s decision stands, the practical impact on jail medical neglect cases will be enormous. While the standard is still higher than mere negligence, the elimination of the subjective element means that a far-wider range of jail medical neglect cases should make it past the all-important summary judgment stage and that many more jail medical neglect cases can therefore be pursued as Section 1983 cases.
Lawyers should remember that if the victim of medical neglect was a convicted prisoner, the subjective element will still apply and that the burden of proof will be as high as it has always been. But for pretrial detainees in states falling within the Ninth Circuit’s jurisdiction, Gordon is a major breakthrough in the law. For those of us who care deeply about the rights of pretrial detainees to adequate medical care in jail and who seek to maximize recoveries for plaintiffs in such cases, it is no exaggeration to say that Gordon is a BIG deal.
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Ed Budge is a founding member of Budge & Heipt, PLLC—a law firm committed to obtaining justice for victims and their families who have suffered wrongful death or serious injury due to medical neglect in jail or prison. Ed has handled numerous Section 1983 cases against jails, prisons and private medical contractors in federal district courts around the country. Visit www.budgeandheipt.com for a description of the firm’s focus on civil rights cases involving injury or death in jail or prison.
