Prisoners Self Help Legal Clinic
PO Box 798 •  Newark • New Jersey 07101
Website: 

MEDICAL CARE

	One of the biggest problems for men and women behind the walls is how to get adequate medical care.  The prison system, if left to its own designs, would provide only the most minimum care - if that. Despite several class action lawsuits challenging the poor medical care received by prisoners at various prisons around the country, and countless individual lawsuits filed by prisoners and their families alleging substandard care, “cruel and unusual punishment” and even wrongful death, consistently and competently delivered medical care in prison remains inaccessible to most people behind bars. Prison medical care is about delivering the least amount of care for the least amount of money.  If you are experiencing problems with medical care while in prison, before considering litigation, you should first do the following:

1) Keep full and careful records of whom you have seen, as well as when and where. Record the symptoms you complained of and what, if any, treatment or medical care you received, as well as when and where you received it. Try to include full names, addresses, and phone numbers, if available.

2)  File any "administrative remedies" available to you, and keep copies of any letters you write to the warden, ombudsman, etc.. Keep copies of all replies, or note any failures to reply. Try to have more than one set of records and try to keep one set with someone on the outside, for safekeeping, in case yours is "lost".

3) Enlist the support of family members, friends and other outside supporters, if ,          possible. The intervention of family members or friends with prison doctors,
	  	      corrections staff and even the Correctional Medical Services (CMS) local, regional
		      area and national managers and/or executive officers lets the system know that the
		      prisoner is not alone. It is, of course, a very labor intensive and frustrating
		      experience to try to get the most minimal attention of medical or custody staff
		      inside a prison. Family members should also contact their assembly members or
		      state senators and request that they make a phone call to the prison to get help. 
		      The correctional system is often forced to act when legislators get involved.

		      4) Larger campaigns on behalf of a “class” or group of prisoners can also be
		      effective, especially if the campaign receives some media coverage.  Ultimately,
		      the fight for adequate medical care for prisoners is an integral part of the overall
		      struggle for the human rights and dignity of prisoners.
	/
		Before considering litigation, you should obtain copies of your medical records. You are entitled to copies of those prison medical records. See N.J.A.C. (New Jersey Administrative Code) 10A 16-2.18(h) and 10A:22-2. To obtain your records, submit a written request on Form 301-XII (to be supplied upon request) to your facility's Director of Professional Services or Supervisor of the Medical Department.  The facility then has 30 days within which to provide a copy of the requested records, or a summary thereof. 10A:22-2.6.

THE EIGHTH AMENDMENT 

	Your right to adequate medical care is protected by the Eighth Amendment to the U.S. Constitution, which states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
	
	The leading case dealing with the rights of prisoners to medical care, from an Eighth Amendment perspective, is Estelle v. Gamble 429 U.S. 97, 97 S.Ct. 285 (1976). While it clearly defines your rights, this case must be read carefully so that those specific rights are understood. It is NOT a magic wand which will cover all situations.
	
	The holding in Estelle is that "deliberate indifference to serious medical needs" of prisoners constitutes "cruel and unusual punishment " (i.e. "unnecessary and wanton infliction of pain") and is therefore  proscribed by the Eighth Amendment. Ever since Estelle was decided by the U.S. Supreme Court in 1976, courts have been determining what exactly is "deliberate indifference" and what are "serious" medical needs.  Deliberate indifference can be "manifested by prison doctors in their response to the prisoner's needs, or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-105. Circumstances amounting to deliberate indifference may also be found where prisoners are forced to see only unqualified medical staff, where prison conditions or facilities make it impossible for the doctor to exercise his/her professional judgment, or where conditions throughout a system are so deficient as to preclude delivery of adequate medical care. See Todaro v. Ward, 43 F. Supp. 1129, (S.D.N.Y.), affirmed 565 F.2nd 48 (2nd Cir. 1977).	
	
	Courts have also defined what medical problems may not violate your constitutional rights, such as unsatisfactory care due to accidental negligence or malpractice and/or a difference in opinion between the prisoner-patient and his or her doctor or disagreement  with the type of care provided.  For example, "A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim... Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." 429 U.S. at 105-106. 
	
	"In order to state a cognizable [constitutional] claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only  such indifference that can offend `evolving standards of decency' in violation of the Eighth Amendment."  So while you may have a cause of action, it may not necessarily be based on a violation of your constitutional rights, unless it rises to the "deliberate indifference to serious medical needs" standard, and is therefore "cruel and unusual punishment," as proscribed by the Eighth Amendment.			

				DELIBERATE INDIFFERENCE

	There are two parts to the test set forth in Estelle. First, a prisoner must show that officials were "deliberately indifferent" to his/her medical needs. Second, the needs must be "serious".  The definition of "serious needs" will be discussed further on.
	
	Ramsey v. Ciccone, 310 F.Supp. 600 (W.D. Mo.1970), is an interesting case which explains, in great detail, the deliberate indifference standard: 

A prisoner in need of medical treatment (including medical attention and surgical treatment) cannot, at will, go to a public or private facility to secure the treatment, and cannot, at will, call a practitioner to treat him/her in prison... Having custody of the prisoner's body, and control of the prisoner's access to medical treatment, the prison authorities have a duty to provide needed medical attention...
	This duty is recognized in state and federal statutes, and administrative prison regulations... In addition to these statutory and administrative duties, there is a Constitutional duty to provide needed medical attention to a prisoner, because the intentional denial to a prisoner of needed medical treatment, is cruel and unusual punishment, and violates the Eighth Amendment to the Constitution of the United States...
	If the above is accepted, then it is an easy mental step to the proposition that reckless disregard, callous inattention, and gross negligence, which results in the denial of needed medical treatment, is equivalent to intentional denial of medical treatment, and therefore violates the rights guaranteed by the Eighth Amendment.  

	Some of the following situations demonstrate the deliberate indifference standard. That is, if your case is similar to one of those listed, you may have a valid deliberate indifference case and be able to show a violation of your Eighth Amendment rights.  (Remember, you are responsible for reading the cases you use in a legal action. Also remember that only U.S. Supreme Court decisions (found in S.Ct. or U.S.) are precedent in all jurisdictions. Lower court decisions, as may be found in F.2d and F.Supp.. rule only in their districts or circuits, but they may give you an indication of how other courts have interpreted specific situations.)
	
		CASES FINDING DELIBERATE INDIFFERENCE

	1. Not seeing a doctor at all, or only seeing doctor after an unreasonable delay:

Robinson v. Moreland,  655 F.2d 887 (8th Cir. 1981): weekend delay in treating a broken hand.

Hurst v. Phelps, 579 F.2d 940 (5th Cir. 1978): refusal to take prisoner to doctor's appointments.

Tomarkin v. Ward, 534 F.Supp. 1224 (SD NY 1982); superintendent's knowing failure to see that prisoner received treatment.

Isaac v. Jones, 529 F. Supp. 197: guards' delay in providing care.

Brown v. Hughes, 894 F.2d 1533 (11th Cir.1990): a four hour delay in getting prisoner to treatment after his foot was broken, so that the foot was too swollen for  cast to be put on. Court held that "an unexplained delay of hours in treating a serious injury states a prima facie case of deliberate indifference."

BUT also look at these cases where deliberate indifference was not found:

Miller v. Smith, 656 F.2d 337 (8th Cir. 1981): 1 ½ hour delay in hospitalizing prisoner with shotgun wound was not deliberate indifference.

Brown v. Commissioner, Cecil County Jail, 501 F. Supp. 1224 (D. Md. 1980): delay of less than a week in treating gonorrhea not deliberate indifference.

	2. Unqualified Medical Personnel:

Inmates of Allegheny Co. Jail v. Pierce , 612 F.2d 754, 762 (3rd Cir. 1979): prisoners with psychiatric problems had right to be treated by qualified staff.

West v. Keve, 571 F.2d 158 (3rd Cir. 1978): post-operative patient had right to care by qualified doctor.

Williams v. Edwards 547 F.2d 1206 (5th Cir. 1977): reliance on untrained personnel was unconstitutional.

Mandel v. Doe 888 F.2d 783, 789 (11th Cir. 1989): inmate broke hip on job at remote worksite; after a delay, physician's assistant gave palliatives and did not treat broken hip for over two months, so that victim required hip replacement. The Court held: "When the need for treatment is obvious, medical care which is so cursory as to amount to no treatment at all, may amount to deliberate indifference." 
	
	3. Prison conditions made it impossible for doctor to exercise his/her professional judgment:

Rodero v. Ward, 431 F.Supp. 1129 (S.D. N.Y.), aff’d 565 F.2d 48 (2d Cir. 1977): sick call conducted under conditions preventing meaningful evaluations.

Tillery v. Owens, 719 F.Supp. 1256 (W.D. Pa.1989): in a class action case, inadequate staffing, three minute physical exams, and one year's delay in seeing dentist, was deliberate indifference.

	4. Doctor's Orders were not carried out:

Layne v. Vinzant, 657 F.2d 468 (1st Cir. 1981):  no effort made to obtain recommended physical therapy.

Cummings v. Dun, 630 F.2d 649 (8th Cir. 1980):  denial of prescribed medication.

Jones v. Evans, 544 F.Supp. 769 (N.D. GA. 1981): confiscation of prescribed back brace.

Martin v. Board of County Commissioners, 909 F.2d 402 (10th Cir. 1990):  plaintiff arrested while recovering from broken neck, was moved against doctor's orders. 

Ransome v. Commissioner. of Corrections, 491 N.Y.S. 2d 209 (3rd Dep't 1985): prisoner could not prevail on claim of neglect of medical care for diabetes, as care was adequate, but did successfully claim "deliberate neglect," because he could not get needed diabetic diet.

(The classifications listed above are from Dan Manville's "Prisoner's Self Help 
Litigation Manual", Oceana Press, Dobbs Ferry, NY)	

	5. Deliberate Indifference by officials:

Roach v. Yarbaugh, 736 F.Supp. 318 (D.D.C. 1990), inmate suffering from multiple sclerosis, who had not received assistance for a bath or shower in months, or other care, was granted a preliminary injunction to get the care he needed because of likelihood his claim would be successful on the merits.

Blakenship v. Kerr County, 878 F.2d 893 (5th Cir. 1989):  arrestee known to be epileptic, had seizure and injured himself in unpadded cell. Although the doctor was eventually called, the court found deliberate indifference.

DeGidio v. Perpich, 612 F.Supp. 1383 (D.Minn. 1985), where deliberate indifference was found when prison officials recklessly disregarded serious medical needs of prisoners by failing to implement court-ordered program for tuberculosis screening and treatment following an epidemic of tuberculosis. Accord, DeRosiers v. Moran, 949 F.2d 15 (1st Cir. 1991).

IS IT DELIBERATE INDIFFERENCE OR SIMPLY NEGLIGENCE?

	There is often a question as to whether unsatisfactory medical treatment is due to deliberate indifference, or to simple negligence or malpractice. Deliberate indifference implies `intent.' while "negligence" is a mistake, made with good intentions. Dan Manville, in "Developments in Prisoner's Rights," a 1991 update pamphlet to his "Prisoners' Self Help Litigation Manual", writes:
		           "... (T)he line between malpractice and deliberate indifference seems to be shifting. There is an increasing number of of cases in which major errors or extremes of bad

	judgment are treated as deliberate indifference, especially where the results involve
  	severe injury or death."
The following cases may give you a clearer picture.

Ortiz v. City of Imperial, 42 F.2d 1312 (9th Cir. 1989), where prisoner suffered a head injury, and medical staff did treat with sedatives, but disregarded symptoms as the condition worsened.  In this case, although the staff did not deny treatment, their neglect of symptoms amounted to "substantial deliberate indifference to prisoner's serious medical needs."

White v. Napoleon, 897 F.2d 103 (3rd Cir. 1990), a New Jersey case, in which the physician refused to give treatment which had helped relieve a severe earache, and instead gave treatments which had not worked before and which had caused excruciating pain and loss of hearing.  There were several other similar incidents with this physician at Bayside State Prison.  Although treatment was given, the plaintiffs alleged that the doctor's purpose was to "require prisoners to accept whatever treatment he sadistically chose to offer."  The Third Circuit decided that a claim of 'deliberate neglect' could be made. (U.S. District Judge Joseph Rodriguez had previously granted summary judgment for the State.)  The Third Circuit ruled that the prisoners' complaints alleged "persistent conduct in the face of resultant pain and risk of permanent injury (from which) one may infer that the doctor is either intentionally inflicting pain on the prisoners or is deliberately indifferent to their medical needs."
***** UPDATE:
	White v. Napoleon, No. 88-O497 (DCNJ, JBS) resulted in an $80,000 settlement in favor of the prisoner plaintiffs.  After years of prisoner complaints Dr Napoleon Cape May County Jail) was fired from his job at Bayside in 1992 (although he kept his job at the Cape May NJ County Jail) and after investigation by the state Board of Medical Examiners, finally had his license to practice medicine taken away in 1997.

Liscio v. Warren, 901 F.2d 274 (2dCir.1990), where prisoner undergoing heroin withdrawal and doctor did not ask about, or notice alcohol withdrawal, which is more common and more dangerous, deliberate indifference could be found.

		In ongoing litigation that is of particular interest to New Jersey state prisoners, the U.S. District Court for the District of New Jersey held that diabetic prisoners raised substantial questions of fact concerning Eighth Amendment claims that inadequate medical treatment was a result of prison staff’s deliberate indifference to their serious medical needs. See Rouse v. Plantier, 987 F.Supp. 302 (D.N.J. 1997).

MEDICAL DIFFICULTY DID NOT STATE A CONSTITUTIONAL CLAIM
	
	In theory, even a shockingly bad medical mistake may be "negligence" or "malpractice", and actions which are distressing to the prisoner may be found to be necessary, so the following cases did NOT meet the deliberate indifference standard when they were decided:

Brown v. Chambersburg, 903 F.2d 274 (3rd Cir.1990), where doctor examined prisoner, but did not touch him, and diagnosed a bruise which later turned out to be broken ribs. Court ruled this was not deliberate indifference, as the doctor had examined the prisoner, "and as long as physician exercises professional judgment, his behavior will not violate a prisoner's constitutional rights."

O'Donnell v. Thomas, 826 F.2d 788 (8th Cir. 1987), in which an prisoner who had attempted suicide, was bound by leather restraints while he was fighting and being abusive. The Court ruled there was no constitutional violation as the restraints were ordered by the physician to prevent the prisoner from harming himself.

Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990), where plaintiff came to prison with pins in his shoulder and a sling, the guard took the sling and one pin broke. A doctor recommended a visit with an orthopedic specialist, but no appointment was made due to confusion in records.  The Court (inexplicably) ruled that the care might be negligence, but was not deliberately indifferent.

"SERIOUS" MEDICAL NEEDS STANDARD
	In addition to showing deliberate indifference, prisoners must also 
demonstrate that their medical needs were "serious". The following may be the best available definition of "serious":
   
	   	A serious medical need is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention...Even elective treatment recommended by a physician, but not "necessary  in a life or health-saving sense," may be constitutionally
		mandated upon a prisoner's election.

 Laaman v. Helgomoe, 437 F.Supp.. 269, 311 (D. N.H. 1977). See also West v. Keve. 571 F.2d 158 (3rd Cir. 1978); Case v.Bixler, 518 F.Supp. 1277 (S.D. Ohio 1981).

				SPECIAL MEDICAL PROBLEMS
	
	PSYCHIATRIC CARE
	
	In addition to medical care, prisoners have a right to psychiatric treatment for serious diagnosed medical illness. (See cases on "Refusing medication", below.) Ramos v. Lamm, supra; Inmates of Allegheny County Jail v. Pierce, 612 F.2d (3rd Cir.1979); Gruz v. Ward 558 F.2d 658 (2nd Cir.1977); Robert E. v. Lane 530 F.SUPP. 930 (N.D. Ill. 1981); Griffin v. Smith 493 F.Supp. 129 (N.D. N.Y. 1980).  BUT see, Harris v. Thigpen, 941 F.2d 1495, 1511 (11th Cir. 1991), where the Court found a failure to state a claim when HIV positive inmate received `reasonably adequate' psychiatric treatment, even though little treatment available to help prisoners cope with terminal illness.

	New Jersey state prisoners should be aware of the recent settlement of class action litigation on behalf or mentally ill prisoners against the NJ Department of Corrections in C.F. v. Terhune, Civil Action Docket No. 96-1840 (AET), U.S.D.C.N.J. The DOC agreed to a program of reforms, including a large increase in mental health staffing, training of corrections officers, new special needs housing units for the mentally ill who are in crisis or otherwise require intensive mental health services and modifications of its disciplinary procedures so that severely mentally ill prisoners will not be warehoused in administrative segregation and will instead be provided with appropriate mental health treatment in a safe setting. Prison disciplinary rules have been modified so that mental illness is taken into account before prisoners can be placed in administrative segregation and so that prisoners whose mental health deteriorates are removed from ad. seg. Finally, the DOC agreed to establish discharge planning to facilitate prisoners’ receipt of mental health services upon their release from prison.

	DENTAL
	
	Similarly, prisoners enjoy a right to care for serious dental problems. 
Ramos v. Lamm, supra ; Heitman v.Gabriel, 524 F.Supp. 622 (W.D. Mo. 1981); Morgan v. Sproat, 432 F.Supp. 1130 (S.D. Miss. 1977).

	HANDICAP(S) and the AMERICANS WITH DISABILITIES ACT
	
	Evans v. Duggar, 908 F.2d 801 (11th Cir. 1990), holding that a partly paraplegic patient has a right to adequate access to shower and other facilities. Even though prison are not required to have handicapped access, refusing these facilities becomes "deliberate indifference" under the Estelle standard. 
  
   LaFaut v. Smith 834 F.2d 389 (4th Cir.1987), deliberate indifference found when
prison officials failed to provide inmate with rehabilitation therapy and with handicap bar in inmate's cell, or in carpentry shop where he worked.

(NOTE: These cases were prior to the passage of the "Americans with Disabilities Act" (ADA), 42 U.S.C. §12101 et seq..

	Yeskey v. Pennsylvania Department of Corrections, 118 S.Ct. 1952 (1998) held that the Americans with Disabilities Act applies to prisoners, who are protected by the federal ban on discrimination against the disabled. The Americans with Disabilities Act (ADA) says, in relevant part:

“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or
activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.”
 In an unanimous decision, the Supreme Court permitted former prisoner Yeskey to sue over his exclusion from a boot camp program, that could have shortened his sentence, due to his history of hypertension. In light of this decision, prison officials must now make reasonable modifications to prison operations so that prisoners with disabilities will have reasonable access to most prison programs.  The ruling could also require prison officials to invest in renovations to accommodate prisoners in wheelchairs, who are blind, or are otherwise disabled.

	Rouse v. Plantier, 987 F.Supp. 575 (D.N.J. 1998), in which the court held that prisoners’ could sue under the ADA claiming that they were discriminated against because of their diabetes when defendant prison officials failed to reasonably accommodate their medical needs and prevented them from participating in various prison programs

	HIV+  (AIDS)
	
	The law in this area is changing daily. At one point in time, courts held that there was no violation in segregating HIV inmates, with minimal due process. In Harris v. Thigpen, 941 F.2d 1495, (11th Cir. 1991), the 11th Circuit held that there was NO deliberate indifference when the primary care prison physicians lacked knowledge of "basic terminology about the diagnosis, prophylaxis, monitoring, and treatment of HIV infection." 
	
	Standards for care of HIV+ prisoners throughout the New Jersey state prison system are set out in the Consent Decree reached between the class of affected prisoners and the Department of Corrections, in Roe v. Fauver, C.A. 88-1225(AET).Copies of the agreement are available from the Office of Inmate Advocacy, CN 850, Trenton, NJ 08625.

	"HIV in US Prisons and Jails" (NCJ 143292) is an eight page report available FREE from the National Criminal Justice Reference Service, Box 6000, Rockville  MD  20850, (800)732-3277, for more information.
	
	SMOKING
	
	While the circuit courts have been divided on the issue of the risk of harm to prisoners from "passive" exposure to tobacco smoke, and whether or not it states an Eighth Amendment claim, (compare, for example, McKinney v.Anderson, 949 F.2d 853 (9th Cir.), with Wilson v. Linaugh, 878 F.2d 846 (5th Cir.)), the Supreme Court has recently come out on the side of non-smokers with their guidelines in  Helling v. McKinney, 1135 S.Ct. 2475 (1993). 

	TUBERCULOSIS

	Proof of reckless disregard was found to meet the deliberate indifference standard in DeGidio v. Pung, 920 F.2d (8th Cir. 1990), when prison officials disregarded serious medical needs of inmates by failing to implement court-ordered program for T.B. screening and control; accord, DeRosiers v. Moran, 949 F.2d 15 (1st Cir. 1991).

			DISAGREEMENT ON TREATMENT
	
	Disagreement between doctor and patient: Although it is frustrating to disagree with your doctor on the treatment prescribed for you, there is not much you can do about it. The doctor may have a good reason not to use a certain medication, even though it was prescribed before. In modern medicine, drugs which were once considered safe, turn out to have previously unknown side effects, and experienced physicians will sometimes have different views on diagnoses and treatments for the same illnesses.
	
	As for your legal rights, the bottom line is that you do not have a constitutional right to choose your treatment. You do have a right to adequate treatment, but once in treatment, it is your doctor whose duty it is to prescribe treatment and/or medication(s).

Ray v. Parrish, 399 F.SUPP 775 (E.D. Va. 1975); Jackson v. Moore, 471 F.SUPP 1068 (D.C. Colo. 1979); Ellis v. Butler, 890 F.2d 1001 (8th Cir. 1989), where the prisoner had a painful, swollen knee and made several allegations about denial of care. The Appeals Court ruled that disagreeing with treatment and level of care did not give the patient a claim, although IF, as alleged, the medical staff had refused to see him, that might be 'deliberate indifference'.

	REFUSING MEDICATION(S)
	
	The case law on refusing to take medication(s) and on being given medication(s) by force, is generally related to psychiatric medications. However, these cases may be useful to you in any situation where you would choose NOT to accept medications.

Washington v. Harper, 110 S.Ct. 1028 (1990), an important Supreme Court case, which states that prisoners have a substantive due process right to avoid anti-psychotic drugs, except that if the mental state is likely to cause harm, and if the
medication is prescribed, and monitored, by psychiatrists, the medication may be given by force, without due process.

Bee v. Greaves, 910 F.2d 686 (10th Cir. 1990), where prisoner was given Thorazine, a psychiatric drug, by force, doctor did not have qualified immunity and patient won damages.

Kyle v. Allen, 732 F.SUPP 1157 (S.D. Fla. 1990), where a prisoner was given medication without seeing a doctor, and was threatened when he refused the medicine, he could make a constitutional claim.

Rivers v. Katz, 504 N.Y.S.2D 74 (1986), A NY State inmate refused anti-psychotic drugs...the NY State Court ruled that a mental patient, who is involuntarily confined, has a fundamental liberty interest right to make decisions concerning his body, BUT where the state has a compelling interest in forcible medication, when there is a danger to self or others, the patient must submit to medication.  

See also,  Bell v. Wolfish, 441 US 520 (1979), which holds that pretrial detainees enjoy same liberty interest in freedom from unwanted ant-psychotic drugs as do convicted prisoners.

				TAKING LEGAL ACTION
	
	◘ DECIDING TO TAKE LEGAL ACTION
	
	If it is at all possible, try to settle your problem of medical neglect by completing the formal administrative remedies that should be available, and/or by talking to officials. Legal action is slow, and there may be hidden dangers, such as subtle, or not so subtle, retaliation.
	
	The reasons you might file a legal action are: 1] to get a remedy for a dangerous or painful condition; 2] to collect money damages for loss of function(s) of a part of your body, and/or for pain and suffering; and  3] to correct illegal 
and/or damaging situations, for the good of others, as well as yourself.

	◘ CHOOSING WHICH OF TWO LEGAL ACTIONS TO USE:
	
	In this section you will be given an overview of two types of legal action from which you may choose, the Constitutional "deliberate indifference" claim, and the Tort claim, for "negligence". The difference is that the" deliberate indifference" claim does not state a complaint for the doctor's medical treatment, but alleges that the staff ignored the problem. The tort claim alleges that the physician, or other personnel were negligent, and the medical treatment was substandard. The Constitutional claim usually goes to the Federal courts, and for state prisoners the tort claim goes to State courts.
	
	Fortunately, since state tort claims are more complicated, the courts are treating serious cases of medical neglect as deliberate indifference.  Look at some of the cases listed in the earlier deliberate indifference section above to see if your 'neglect' action could be considered deliberate indifference.
	
	◘ EIGHTH AMENDMENT "DELIBERATE INDIFFERENCE" CLAIM
	
	A Section 1983 action is usually is the easier action to file, but it requires a clear showing of deliberate indifference, under the standards of Estelle, as discussed above.
		
		First Steps
		
	Your first step in challenging "deliberate indifference" will be to file a Complaint, a simple form in which you tell the court what happened and complain that your Eighth Amendment rights to protection against cruel and unusual punishment were violated.  The case will be heard in U.S. District Court. You can file "In forma pauperis" if you cannot pay the court costs.

		IMMUNITY AND LIABILITY
	 
	In some circumstances, prison officials "immune" and cannot be sued for what they did. However, in other situations, they may be personally liable for "indifference" or "negligence," and can be sued and disciplined for their actions, or lack thereof. 

	Prison officials enjoy "qualified immunity" most of the time. But, if they "knew or should have known" that a  constitutional violation was occurring, they lose the shelter of that immunity, and are personally responsible. Thus, officials are not immune if they were being "deliberately indifferent".
	
	If the actual indifference was displayed by an `outside' doctor, (s)he is immune, as was decided in West v. Atkins 815 F.2d 993 (4th Cir.1987). The outside doctor allegedly made a bad decision when he treated a torn tendon. He was not acting "under color of state law", and was not following any orders, but was using his own judgment. On the other hand, this case says that contracting out medical care does NOT relieve the state of its constitutional duties in providing medical care. If the outside doctor were acting as a supervisor, or in another non-medical role, he would have had only 'qualified immunity', like any other prison official.  See Rivers v. State, 537 N.Y.S. 2d 968 (Ct. Cl.) where outside surgeon, who operated for hernia on inmate's right side, instead of the left, settled with the patient, but the Court ruled that the state was NOT released from liability.
	
	Officials may also be held liable for a prisoner's rights violation for "failure to train," where it is shown that a subordinate should have been properly trained to avoid the violation. However, in Erwin v. Co. of Manitowoc, 872 F.2d 1292 (7th Cir. 1989), the Court held that failure to train an officer cannot, by itself, make the county liable for the violation. The county would be liable due to failure to train only if it could be shown to have made a conscious choice to be "deliberately indifferent' to prisoners rights.
	
		SUMMARY JUDGMENT
	
	When you file a complaint under §1983, defendants who are prison officials  will come back with a "Motion for Summary Judgment". This is a document asking the Court to decide against you, without hearing any more evidence.  This motion is one of the more discouraging events of most civil actions. However, you can prevail against this motion if you proceed properly. The following case might give you some help:
	
	Kaminsky v. Rosenblum, 737 F.Supp.1309 (S.D. N.Y. 1990), in which the prisoner died after a 16 month battle with the effects of AIDS. His family sued, alleging inadequate medical care, and the defendants asked for `summary judgment' to get the case decided without further action. The Court held that a complex medical case could NOT be decided without taking further evidence, saying that "determining the difference between malpractice and deliberate indifference, is a factual issue, which cannot properly be decided at the `summary judgment' stage." The court must have more information before it could decide. 

	Unless your case is totally "frivolous," (Claims are frivolous if the facts alleged are "clearly baseless," Denton v. Hernandez, 112 S.Ct. 1728 (1992)), or allege facts impossible to prove, most courts will allow you to proceed further in trying to prove your case, with discovery, or expert testimony (if you can obtain it).
	
	◘ TORT CLAIMS: (MALPRACTICE)
		
	A tort is a civil wrong. Closely associated with the idea of a tort is the concept of negligence, defined as: an act (or omission) performed without the ordinary prudence, diligence, and care, which a "reasonable man" would use in a similar circumstance.  Thus, negligence may consist of either the doing of an act without reasonable and ordinary care (so that injury results), or the failure to act under circumstances where the reasonably prudent person would act, so that the "proximate" result is an injury that otherwise would not have occurred. (Proximate cause means that there was a direct and consequential result).
	
	Medical malpractice is a form of tortious behavior commonly pursued under a negligence theory, in which medical professionals (doctors, nurses, dentists, psychiatrists, etc.) are held accountable for their acts, or failure to act, when rendering medical care, and where injury to the patient is the proximate result.
	
	To make a claim that a tort has occurred you will need to show "injury", AND "proximate cause."  You may need expert witnesses to testify concerning the type and degree of negligence in your treatment. These are discussed below. Negligence and medical torts are actionable under state laws in every state, and prisoners confined in state and local facilities, under custody of state and local officials, may bring such actions in state courts under existing state tort laws.

**( Note Well:  There is usually a two year Statute of Limitations of personal injury torts, but the time does not start to run until the condition becomes known.)
	In both tort claims and medical malpractice actions, the defense will usually contend that the alleged deviations from `acceptable medical practices' would not have altered the end result. Or, in other words the injury would have resulted despite the treatment, or lack thereof, thus negating the crucial `proximate cause'.

	It is for this reason that the expert medical testimony is needed on this crucial issue of proximate cause, in order to establish whether or not defendant's acts or omissions substantially contributed to the plaintiff's injuries. The best way to become more familiar with the many subtleties in this area is to refer you to actual cases. The following discuss the "causal connection" requirement in medical cases:

Langton v. Brown 591 S.W.2d 84 (1979 Mo.App.); Bost v. Riley 44 N.C.App 6538 (1980); Merriman v. Toothaker 515 P.2d 509 (1973); Hamil v. Bashline 392 A.2d 1280 (1978); Deutch v. Shein 597 S.W.2d 141 (Ky.1980); Neese v. Shawnee Med.Center Hosp.Inc. 626 P.2d 1327 (Ok. 1981).

	 
		USE OF EXPERTS

	In most medical claim actions you cannot prove your allegations in court unless you have testimony from expert witnesses, i.e. experienced doctors who will explain to the jury what the medical damages. Few pro se prisoners can afford the fees charged by such witnesses. You might hope that the government would provide expert witnesses to an indigent plaintiff; however, read the following Third Circuit case:

Boring v. Kozakiewicz 833 F.2d 468 (3rd Cir. 1987), where an inmate had several complaints, such as denial of a special diet for migraine headaches, and getting temporary fillings instead of permanent fillings for his teeth and he needed to show that his condition met the test in Estelle, as a "serious" medical problem. For that he needed an expert medical witness.  The court held that the inmate could NOT have financial assistance toward paying the expert witness, since "non-prisoner claimants who face similar problems" do not get assistance in paying for witnesses.
	
		 INJURY

	A personal injury, or death, is central to any medical malpractice claim. It is for this injury, or alleged wrongful death, that a plaintiff seeks compensation in a Civil Tort Action. As a general rule, trivial or insignificant injuries will not be a good basis for which to pursue any personal injury, or malpractice claim.
	
	What kinds and degrees of injury may form a sufficient basis for a medical malpractice claim ? The types of claims are as numerous as the number of injuries and diseases known to man, and the number of procedures devised by modern medical and dental practice to treat them. The best we can do is refer you to actual cases, and the sources for other actual cases. We recommend the following for interested readers:
	
	 Medical Malpractice: Cases and annotations, ALR 2d (3 vols.); Diagnosis and Treatment of Brain Injuries, 29 ALR 2d 501-507; Liability for Injury by X-Ray, 41 ALR 2d 329-387; Treatment of Fractures & Dislocations, 54 ALR 2d 200-267; Malpractice in Treatment and Diagnosis of Cancer, 55 ALR 2d 461-467; Nose and Throat Treatment and Surgery, 58 ALR 2d 216-250; 
	
	American Law of Medical Malpractice, Pegalis and Wachsman, (1980), and similar casebooks and treatises.

	◘ DUTY OF CARE
	
	"Duty of care" is the basic obligation underlying your medical care rights. In all physician/patient relationships, there is a "duty of care" owed by the physician to the patient. This relationship may exist whether or not the care is paid for or gratuitous (freely given, as to inmates in custody), and is essentially established on the fact question of whether or not the patient entrusted himself to the care of the physician, and whether the physician accepted the case.
	
	The "duty" owed is to conform to certain acceptable "standards" of reasonable medical care. This "standard" is often defined as, "the degree of knowledge and medical or surgical skill that a medical practitioner, under the same or similar circumstances, should reasonably possess." See Pegalis and Wachsman, American Law of Medical Malpractice" (1980) at pg. 55. Also see Spadaccine v. Dolan 407 N.Y.S.2d 840 (1st Dept. 1978); Boland v. Garber 257 .N.W. 2d 384 (MN. 1977);
	
	In the case of specialists, all medical practitioners who specialize in a particular area of medical practice have been held to be required to possess a greater amount of skill, within the specialty, than would a general practitioner. The degree of care exercised should be comparable, but more skill is expected from a specialist. See Bell v. Schweizer, 149 S.E.2d 565 (1966), and Stevens v. Duxbury 634 P.2d 1212 (Nev. 1981).

	States and counties are required to provide inmates incarcerated in their jails and prisons with medical care with respect to serious illnesses and injuries at governmental expense. See Mandel v. Doe, 888 F.2d 783 (llth Cir. 1989), finding that the State has a constitutional obligation to provide adequate medical care to those whom it has incarcerated.

		
SPECIAL NEEDS OF FEMALE PRISONERS
	
	The Director and Managing Attorney for Legal Services for Prisoners with Children in San Francisco, Ms. Ellen M. Barry, has said that "perhaps no issue concerning prison conditions is more compelling, or shocking, than the systemic failure of correctional systems to respond to the critical medical needs of pregnant prisoners."
	
	Correctional systems typically have inadequate prenatal protocols, staff and equipment to treat pregnant women, and they do not have resident obstetricians. See Smith College School for Social Work, Legal Issues of Female Inmates, (1982), [prepared for the US Dept. of Justice, Nat'l Inst. of Corrections].

	One of Estelle's progeny, Todaro v. Ward, 431 F.Supp. 1129 (S.D.N.Y.), aff'd, 565 F.2d 48 (2d Cir.1977), was the first major suit brought on behalf of women prisoners, alleging inadequacy of medical care at a state prison. Plaintiffs, who were inmates at New York's Bedford Hills Women's Prison, argued that they were being deprived of adequate medical, dental and psychiatric care, in violation of the Eighth Amendment. The Court found that the prison's medical and record- keeping procedures caused substantial delays in medical care; that the use of a `lobby clinic' for screening of medical complaints was grossly inadequate; and that plaintiffs were being denied adequate access to the medical staff.
	
	A woman prisoner's right to counseling on pregnancy options and to an abortion at county and/or state expense was established in New Jersey in Monmouth County Correctional Institution Inmates v. Lanzaro, 643 F.Supp 1217 (1986), 834 F.2d 326 (3rd. Cir. 1987).

			CLASS ACTIONS AND SYSTEM WIDE CHALLENGES
	
	In addition to raising issues concerning individual treatment, it may be possible to challenge system-wide, or prison-wide deficiencies in health care. Because challenges to system wide problems of health care delivery are best undertaken as a class action suits, prisoners might seek to obtain counsel before initiating such litigation. Prisoners' rights organizations will sometimes undertake class action litigation, as it is an effective way of correcting prison systems which permit continuing abuses. 

	See Todaro v. Ward, 431 F.SUPP. 1129 (S.D.N.Y.), aff'd, 565 F.2d 48 (2d Cir. 1977); Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977);  Burks v. Teasdale 492 F.SUPP. 650 (W.D. Mo. 1980); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) cert. denied, 450 U.S. 1041 (1981); Tillery v. Owens 719 F.SUPP 1256 (W.D. Pa. 1989); Inmates of Occoquan v. Barry 71 F.Supp 854 (D. D.C. 1989); White v. Napoleon, 897 F.2d 103 (3rd Cir. 1990); Monmouth County Correctional Institution Inmates v. Lanzaro, 595 F.SUPP 1417 (1984).

	The general standard for such cases was enunciated in Ramos v.Lamm, supra, where it was held: "In class actions challenging the entire system of health care, deliberate indifference to inmates' health needs may be shown by proving repeated examples of negligent acts, which disclose a pattern of conduct by the prison medical staff... or by proving there are such systemic and/or gross deficiencies in staffing, facilities, equipment, and/or procedures, that the inmate population is effectively denied access to adequate medical care. 639 F.2d at 575.
	
					CONCLUSION

	We hope that the information given here will help you to understand some of your medical rights, so that you may take care of yourself and others. Please write us if you have any suggestions, corrections, or updated cases.

	   				OTHER RESOURCES

The "Prisoners' Self Help Litigation Manual," by Dan Melville and John Boston, is a more advanced reference, available from Oceana Publications, 75 Main St., Dobbs Ferry, NY 10522, at a cost of $22.50. Ask for the 1991 Supplement when you order.	

"New Jersey Prisoners' Reference Manual," by Steven Marks, published by Gann Law Books, covers Corrections, Parole and Post Conviction (with forms), at a cost of $41.00. 

***The Prisoners Self Help Legal Clinic wishes to acknowledge the invaluable assistance of Robert Reldan #62212, New Jersey State Prison, in the preparation of this pamphlet.