Medical Negligence and Deliberate Indifference -
What is the Difference?

When correctional medical staff get sued by an inmate, the two most common allegations are civil rights violations (deliberate indifference to a serious medical need) and medical negligence.  While civil rights violation allegations are clearly the most common in the correctional setting, it is important for medical personnel to understand the difference between the two and how a medical negligence claim must be proven by the inmate.

 In the Spring, 2000 edition of CorrectCare, we defined deliberate indifference and provided several examples of conduct constituting deliberate indifference.  It is important to remember that deliberate indifference and medical negligence or malpractice are not synonymous.  It is generally more difficult to prove deliberate indifference (i.e., intentional disregard or criminal recklessness) than it is to prove medical negligence.  In fact, neither negligence or even gross negligence is a sufficient basis for liability under a civil rights claim.

Even though it is generally more difficult to prove a civil rights violation than it is to prove medical negligence, allegations of medical negligence against correctional medical personnel are not extremely common.  This is true for two main reasons. 

 Proving a Medical Negligence Claim

In a medical malpractice case, a plaintiff must prove: (1) the proper standard of care by which to measure the defendant=s conduct; (2) a breach of the standard of care by the defendant; (3) a causal link between the defendant=s breach and an injury; and (4) a cognizable injury or damages.  The Astandard of care@ is heavily fact dependent but is generally recognized as the degree of care a reasonably prudent doctor/nurse/medical professional would exercise in same or similar circumstances. 

To establish these elements of medical negligence, expert testimony is necessary.  Experts are used to define the standard of care and explain how the standard was breached or not followed by the defendant medical professional.  Experts also describe the plaintiff=s injury and they discuss how the plaintiff=s injury was caused by the treatment or lack of treatment offered by the defendant.

The need for expert testimony is a strong discouragement to inmates, especially when they are not represented by an attorney and are appearing pro se.  Not only can medical experts be difficult to find, but they are also very expensive.  If an inmate does not have an attorney who is taking their case on a contingency basis, thereby fronting all of the costs themselves, most inmates cannot afford the cost of a medical expert who can testify at trial.

Difficulty & Cost of Medical Negligence Cases

The second reason why medical negligence claims are so uncommon in the correctional setting is the difficulty of prosecuting these cases and the amount time they entail.  Most inmate lawsuits are filed and litigated without the help of an attorney.  While many Ajailhouse lawyers@ know how to proceed with civil rights allegations, this is not true for medical negligence claims due to their complexity.  Medical negligence claims also take many years to come to verdict while civil rights claim filed in federal court can usually be completed in approximately one year.

Medical Negligence Does Not Support A Civil Rights Claim

Throughout the United States, courts have ruled that a complaint made by an inmate alleging that a physician, nurse or other medical provider has been negligent in diagnosing or treating a medical condition, does not state a valid civil rights claim.  This is because medical negligence does not become a constitutional violation merely because the victim is a prisoner.  The United States Supreme Court, in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976), made the initial distinction between deliberate indifference and medical negligence.  A very useful example of this concept was set forth by the Supreme Court:

A[T]he question whether an x-ray - or additional diagnostic techniques or forms of treatment - is indicated is a classic example of a matter for medical judgment.  A medical decision not to order an x-ray, or like measures, does not represent cruel and unusual punishment.  At most it is medical malpractice...  Estelle v. Gamble, 429 U.S. at 107, 97 S.Ct. at 292-293.

In other words, mere differences of opinion among medical personnel regarding a patient=s appropriate treatment do not give rise to deliberate indifference.  The one exception to when medical judgment can be sufficient to sustain a deliberate indifference claim is when the medical professional=s decision is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible did not base the decision on their professional judgment.

Since medical judgment differences do not support a civil rights claim, in certain cases, medical negligence can actually be used as a type of Adefense@ to a civil rights claim.  While this can be a very risky defense, especially where the inmate has an attorney, it is possible to argue in a motion for summary judgment that the inmate has not proven a civil rights violation but instead, has only at worst, proven a possible medical negligence claim.  Since negligence is an insufficient basis for liability of a civil rights claim, this argument can sometimes help the medical professional prevail and win summary judgment.

Impact On The Health Care Worker

So what does this mean to you?  This can actually be good news for correctional medical personnel.  Generally, it is easier to dispose of a civil rights claim prior to trial than it is to dispose of a medical negligence claim.  The reason for this is that summary judgment motions can be filed to dispose of meritless civil rights claims.  However, summary judgment motions are much more difficult to win with a medical negligence claim.  As long as a plaintiff can find a medical professional to testify that the standard of care was breached, the case will proceed to trial.

While it is always important for correctional medical personnel to understand the types of legal actions that can be brought against them by inmates, the most important thing a medical professional can do is to provide the best possible care to every inmate, chart all complaints and medical treatment and always provide medical care that meets the standard of care.   Even though this will not prevent all lawsuits from being filed, it will make your defense much easier and hopefully secure a positive outcome.

Copyright 2000, CorrectCare. Reprinted with Permission.