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CorrectCare
Professionals Beware!
No Deliberate Indifference Required for This Claim to Find You
by
Deana
Johnson, JD
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.
Claims against
correctional workers for retaliation are not subject to 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 provider’s actual intention is irrelevant. To understand
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 gives
everyone a month reprieve from the circus that follows each
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 Closer
Look at the Elements
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 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. 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 to move the unfriendly patient down
the schedule a bit was not motivated solely by the inmate’s
grievances and lawsuits. He 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 she does 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
patient’s follow-up visit, she took a serious risk. Any episode
or symptoms 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.
—
About the author: Deana
Johnson, JD, is an attorney with Insley and Race, LLC, Atlanta,
GA, and a frequent speaker at NCCHC conferences. This article
was adapted with permission from the Spring 2010 issue of
CorrDocs, the Society of Correctional Physicians newsletter.
[This article first appeared in the
Summer 2010 issue of CorrectCare.]
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