CSI CORRECTIONS. Claims Scene Interventions. Part II: The Outcome

Transcription

1 1 CSI CORRECTIONS Claims Scene Interventions Part II: The Outcome

2 Michelle Foster Earle, ARM President, OmniSure Consulting Group, Inc. Lorry Schoenly, PhD, RN, CCHP-RN Risk Management Consultant, OmniSure Consulting Group, Inc. 3 Gordon L. Vaughan, J.D. Principal Vaughan & DeMuro.

3 THE CLAIM SCENE Case Review 4

4 5 Island County Jail 500 average daily census Contracted medical services Independent contractor Physician 20 hours/wk H S A Barker RN 80% licensed staff LPN 4 bed infirmary

5 6 Claims Scene: Inmate Goeller Intake: January 1 1 st Sick Call: January 21 LPN Davis 2 nd Sick Call: January 23 LPN Jackson Discharge: January 27 ER: February 1 DX: Necrotizing Fasciitis from Richter s Hernia

6 7

7 8 Claims Scene Federal Deliberate Indifference State Negligence

8 9 The Claim Scene Focus People Process Place

9 10 Case Outcome For the Plaintiff 1.2 Million

10 Theories of Liability Federal Constitutional Theories State Tort Theories

11 Federal Constitutional Theories Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

12 Estelle v. Gamble, 429 U.S. 97 (1976) The Eighth Amendment prohibits cruel and unusual punishment. This has been interpreted to place a duty on the state to provide adequate medical care to incarcerated persons. This duty is breached where the state actor displays deliberate indifference to serious medical needs of the prisoner.

13 Estelle v. Gamble, 429 U.S. 97 (1976) Violation of the Eighth Amendment medical care standard requires: (1)An objectively serious medical condition; and (2)Deliberate indifference to that condition.

14 Objectively Serious Medical Condition An objectively serious medical condition is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would perceive the need for medical attention. A serious medical need is present whenever the failure to treat a prisoner s condition could result in further significant injury or the unnecessary and wanton infliction of pain. Clement v. Gomez, 298 F.3d 898 (9 th Cir. 2002).

15 Case Examples

16 What constitutes deliberate indifference? Deliberate indifference is a subjective standard requiring a sufficiently culpable state of mind and is more than mere negligence. To meet this standard, a prisoner must prove that the defendant was aware of a substantial risk to the prisoner's health and disregarded that risk. Farmer v. Brennan, 511 U.S. 825 (1994). It is a state of mind equivalent to the familiar standard of recklessness as used in criminal law.

17 A difference of opinion between the prisoner and prison medical authorities is insufficient to amount to deliberate indifference. Franklin v. State of Oregon Welfare Division, 662 F.2d 1337 (9 th Cir. 1981)

18 Claims of negligence or medical malpractice, without more, do not constitute deliberate indifference. Rouse v. Plantier, 182 F.3d 192 (3 rd Cir. 1999)

19 Case Examples

20 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

21 Questions from the Audience 22

22 Convicted vs. Pre-trial Detainee Eighth Amendment cruel and unusual punishment applies to convicted prisoners. Protection for pre-trial detainees is provided via the Fourteenth Amendment and is at least as great as those provided under the Eighth Amendment. See, e.g., City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239 (1983).

23 Private Medical Providers as State Actors Private individuals who provide medical care to prisoners can be considered, for purposes of a claim of constitutional violation, as state actors. West v. Atkins, 487 U.S. 42 (1988). While a private employer may be considered a state actor, it may not be liable for the constitutional violations of its employees under the doctrine of respondeat superior. Nelson v. Prison Health Services, Inc., 991 F. Supp (M.D. Fla. 1997).

24 State Tort Claims State tort claim remedies remain subject to provisions of state law. See, e.g., Estelle v. Gamble, supra (matters of medical judgment are, at most, issues of medical malpractice and must be pursued through state tort remedies); Pollard v. Geo Group, 607 F.3d 583 (9 th Cir. 2010).

25 Perspective of a Plaintiff s Attorney Staff Attorney and Co-Director of the Health Care Project at Prisoners' Legal Services (formerly Massachusetts Correctional Legal Services), an organization established in 1972 to provide civil legal services to people in Massachusetts prisons and jails. Joel Thompson, Todays Deliberate Indifference: Providing Attention Without Providing Treatment to Prisoners with Serious Medial Needs, Harvard Civil Rights-Civil Liberties Law Review, Summer 2010

26 Perspective of a Plaintiff s Attorney Every day our office hears from prisoners... who are looking for help with their medical care. My employer, Massachusetts Correctional Legal Services, provides advice and assistance to the 25,000 men and women in Massachusetts jails and prisons about the conditions of their confinement. Prisoners come to us with issues ranging from overcrowding to guard brutality. Health care is now the most common issue that they raise.

27 Perspective of a Plaintiff s Attorney Health care is a civil right for the incarcerated. Thirty-four years ago, in Estelle v. Gamble, the Supreme Court held that health care must be provided to prisoners because they cannot arrange for their own medical care. Too often this right is not respected.

28 Perspective of a Plaintiff s Attorney Although the prisoners who call us, their locations, and their ailments all vary, the deficiencies in prison medical care systems they describe are similar. [There are] several... recurring themes: delay in providing care; reluctance to test, diagnose, or seek outside consultation; and accusations against the patient used to justify the denial of care.

29 Selected Case Results Wisconsin Wrongful Death Claim Action against County Defendants and private medical contractor by parents for death of son while incarcerated in County jail in Wisconsin alleging Eighth and Fourteenth Amendment violations as well as state tort claims for deliberate indifference to serious medical needs of deceased son. Allegations: Inmate had history of mental health treatment and alleged to have presented at intake positive for methamphetamine use and barely able to stand. Throughout his stay, inmate vomited rather frequently, at first copiously and later less so, but from the start producing what seemed a bile-like substance. The contract nurse said that inmate appeared to be having hallucinations, appeared manic at one time and then fatigued, would scream and then appear to be almost dead-tired. He was given a suicide robe and was put on a suicide watch.

30 Wisconsin Wrongful Death Claim, (con t.) Allegations con t. Plaintiffs expert, an emergency medical physician, said that inmate had been undergoing acute meth withdrawal but also was suffering from pancreatitis, which led to continued vomiting, dehydration, electrolyte imbalance, kidney failure, and then death. Plaintiff also alleged that County and contract medical provider had an understanding that an ambulance would be called only if inmate was utterly unresponsive or obviously dying an allegation denied by Defendants Result: $1,000,000 Settlement. Hessler, et al. v. County of St. Croix, et al. (Wisconsin Verdicts and Settlements, December 2009)

31 Female Inmate Dies from Injuries Received in Auto Accident Complaint against the City and City-owned Medical Center and members of the staff. The City and Medical Center had entered into an operating agreement whereby the Medical Center was to provide medical services for inmates at the City jail. Plaintiffs alleged Medical Center failed to provide adequate medical care and treatment. Additionally, plaintiffs alleged municipal liability for failure to train and supervise and medical negligence. Allegations: Female, age 24, was involved in a car accident in which her car was totaled. She was found unconscious by a witness to the accident. Paramedics arrived and transported her to a public medical center where she complained of pain in her right shoulder. Paramedics also noted she smelled of alcohol. She complained of pain, scale of 7 of 10. No diagnostic tests or lab work was ordered except for a breathalyzer, measured at She was given ibuprofen for pain and released to and transported to jail where she was placed in an isolation cell. After several hours, she was allowed to speak with a nurse and complained she felt sick. The nurse told her she was drunk and needed to sleep it off. Upon passing out for a short time she was told stop being dramatic and to stand up. A guard alerted a jail nurse regarding the female s condition, and the nurse said she was still drunk and needed to drink plenty of fluids and sleep.

32 Female Inmate Dies from Injuries Received in Auto Accident, (con t.) Allegations con t. During the evening and night, the female asked for blankets because she was cold and was numb in her legs and feet. She was denied more blankets. A guard called for a nurse, and the nurse indicated she would come by on her rounds but did not show up. The next morning, the female complained she could not feel her feet. The guards refused to provide her medical assistance. Shortly thereafter, the female lost consciousness. She showed no vital signs by the time emergency medical personnel arrived. Autopsy found the female died of injuries resulting from blunt force trauma related to the car accident and that she had an 18-cm deep laceration in the liver and a laceration in the spleen. The autopsy report also noted considerable internal bleeding and three fractured ribs. Result: Settlement: $3,000,000 Estate of Emily Rice v. City and County of Denver, 2008 WL

33 What If It Happens To You? After an adverse outcome. Understanding the law suit process. Preparation for Testimony

34 Audience Questions 35

35 36 To Receive CE Credit from California Board of Registered Nurses Complete online participant evaluation Include RN license number for certificate Certificate will be sent by

36 37 Gordon Vaughan, Vaughan and DeMuro 111 South Tejon Street, Suite 410 Colorado Springs, CO Telephone: (719) Lorry Schoenly, PhD, RN, CCHP OmniSure Consulting Group, Inc. 401 Congress Ave., Suite 1540 Austin, Texas Telephone: (800) Thank you

37 CSI: Corrections 38 OmniSure Consulting Group, Inc