[A version of this story was previously published at MeisterArchive.com]
By David J. Meister
By the nature of incarceration, U.S. prisoners are totally reliant on facility officials to provide adequate medical care. That is a major operational expense. An industry of private healthcare providers has emerged to fill a need traditionally—if reluctantly—filled by government, offering cheaper solutions.
Typically, a prison healthcare provider is paid a fixed amount per inmate (e.g., $20–$25) housed at the facility. A 2,000-bed facility, for example, might pay a private provider $40,000 to $50,000 a day, or $14 to $18 million a year. Serious dollars.
From that sum, the company employs staff, covers overhead, and pays for outside medical services like specialist care and hospital visits. What money remains on the back end, the company keeps as profit.
Their grimy business model: provide less medical care, employ fewer staff, stock fewer supplies, reduce outside referrals, and always use the cheapest alternative for all of the above. Maximize profits (or the shareholders will sue). Although the ethical boundary is in the rearview mirror, it’s definitely not illegal for a healthcare provider to increase revenue by innovating ways to save costs.
It is illegal to purposely provide inadequate healthcare to prisoners. However—considering the thousands of prisoner lawsuits filed every year and their relatively dismal success rate—prison healthcare providers have clearly learned to ride the line between maximum corporate earnings and civil liability.
DENY. DELAY. DEFEND.
Cheap, easy, convenient medical problems are treated swiftly and with a good bedside manner. Public relations. More serious (expensive) medical issues are processed… differently.
Take a common scenario, for example: when an inmate breaks a foot playing sports.
Initially, care will be denied—that is, the inmate will be triaged, given ibuprofen, possibly a wheelchair but more likely crutches, and told to submit a Health Service Request (HSR) form. After submitting the HSR, the inmate will be triaged again by a Nurse’s Assistant within the next day or week, and possibly referred for X-rays and a provider visit. Neither of these appointments will likely be scheduled unless the inmate submits a second HSR complaining that the injury is going untreated. Another triage by an NA would follow, but no real treatment of the broken foot.
The next step is to delay care as long as possible. When a persistent patient presses for care, the provider (usually a Nurse Practitioner) might dole out “consolation” care (a boot or cast, physical therapy, more ibuprofen) while promising care that doesn’t come—appointments aren’t scheduled, scheduled appointments are missed, specialists “aren’t available,” any excuse to delay delivery of substantial care.
Substantial care is delayed until the patient gives up or prevails on an official grievance. Ideally, by then, the inmate’s medical condition has degraded beyond the point of no return and remedies become futile. The broken foot healed on its own, crooked and atrophied, and after a great deal of unnecessary pain.
The last step in the process is to defend. Prison healthcare providers bank on most prisoners giving up on their requests for care, but in the one-in-a-hundred case when an inmate actually litigates inadequate medical care, the system has the prisoner at a huge disadvantage. This is where prison healthcare departs from free-world healthcare—inordinate restraint on prisoner litigation changes everything.
LITIGATION: FEDERAL v. STATE COURT
So how do providers escape liability? Short answer: the legal system is stacked in their favor.
An internet search of prisoner cases alleging inadequate medical treatment might crash your browser. Prison medical companies survive tsunamis of inmate lawsuits by exploiting barriers lawmakers created around prisoner litigation. It starts with unfairly difficult and demanding prison grievance procedures that must be exhausted to the letter or any subsequent lawsuit will be dismissed at the court’s doorstep. (Google PLRA.) Claims that successfully emerge on the other end of that bureaucratic gauntlet face a Hobson’s Choice.
An inmate may choose one of two jurisdictions to file a medical claim: the local federal District Court (for Eighth Amendment claims), or the nearest state trial court. Really, this choice is between (1) an insurmountably high burden of proof for federal constitutional claims, or (2) an impossible requirement to produce an expert on state malpractice claims.
FEDERAL COURT: DELIBERATE INDIFFERENCE
To state a viable constitutional claim in federal court, an inmate must prove deliberate indifference, meaning that the provider knew of a serious medical need and deliberately chose an inappropriate course of treatment that harmed the patient. Deliberate indifference is essentially the civil equivalent to criminal “recklessness.” Farmer v. Brennan, 511 U.S. 825, 836 (1991). Deliberate indifference is an extremely high standard beyond malpractice and even
gross negligence. Balla v. Idaho, 29 F.4th 1019, 1025-26 (9th Cir. 2022).
If, say, a provider failed to note a medication allergy even though it was a professional duty to collect that information, and later the inmate became ill from a prescription that should not have been administered, the inmate would have to prove both that the provider deliberately failed to collect allergy information and that the provider knew the inmate would be prescribed medication that would cause an allergic reaction. It is virtually impossible to prove either element unless the provider confesses to them. More likely, they’d claim “inadvertence,” which may be negligent (malpractice), but not deliberate indifference.
STATE COURT: MEDICAL MALPRACTICE
That same failure to collect allergy information would likely be actionable in state court under professional negligence—medical malpractice in this case. The standard of proof for medical malpractice is preponderance of evidence that the provider breached a professional duty of due care, causing the inmate harm. A provider’s failure to complete a mandatory checklist involving
medical allergies is facially proof of negligence, and is much easier to prove in court than deliberate indifference.
Why, then, wouldn’t inmates plead the easier standard of medical malpractice in state court?
They don’t, because state law usually requires a medical expert for a plaintiff to proceed on a malpractice claim. See, e.g., Idaho Code § 6-1013. A state court will dismiss a prisoner’s malpractice lawsuit, preliminarily, if an expert is not lined up to testify about (1) the usual standards of healthcare in the community and (2) that the healthcare in dispute fell below those standards. Nonnegotiable—even if the conduct is plainly within average understanding, such as when a provider fails to check for allergies before prescribing medication.
Then find a medical expert, right? Unfortunately, most prisoners cannot afford legal counsel and there is no right to appointment of legal counsel at public expense in these types of civil cases. And the number of medical experts that will consult on a legal case with an unrepresented
inmate equals the number of unicorns frolicking the woods out back.
If an inmate is represented by counsel, two huge barriers persist: availability and cost.
The politics of professionals like medical doctors may be fundamentally antagonistic to helping inmates, and the pool of experts in the area might not be willing to assist inmates because of their crimes. That’s the first problem, and it’s not uncommon. The second problem is that medical experts charge between $400 and $600 an hour, with other assorted fees on top. Case
review, consultation, affidavits, depositions, hearing testimony, trial testimony—all add up to tens of thousands of dollars at least. Prohibitively expensive to inmates.
There is a slim chance that a neutral medical expert could be appointed to advise the court. In such case, that’s a huge advantage to the inmate because prison healthcare providers are usually, in fact, guilty of violating their professional duties and an expert is likely to confirm that.
But it’s rare for a court to do this in an inmate case, and few inmates possess the knowledge or legal expertise to ask.
WHAT CAN THEY DO?
Prison healthcare providers are intimately aware of the legal nuances that end inmate medical lawsuits before they begin. That security against liability was copied into the corporate manual, and prison healthcare providers now operate at the level of gross negligence—just shy of deliberate indifference—keeping them and their investors in the money.
An attorney who is expert in the traps and pitfalls of prisoner litigation and who is willing to invest their own cash into a hired-gun medical expert would, in theory, clean up. With the right finances, they could find dozens of good cases at one prison alone—they’d prove medical malpractice all day long. And yet this just doesn’t happen.
If I had to guess, I would blame fee caps that the PLRA and parallel state laws have placed on the dollar amount an attorney can recover for their work on an inmate’s case. These caps might reduce attorney’s fees to less than half of normal rates. On top of that, jury awards in many jurisdictions tend to be lower, awarding comparatively minuscule damages in prisoner cases.
Combining the degree of difficulty with a smaller potential payoff, attorneys have little incentive to take inmate cases.
The reality is that prisoners are forced to file deliberate-indifference claims on their own in federal court (where experts aren’t strictly required), where there’s a slim margin of success… but at least a chance to make a case.