What is Deliberate Indifference

What Is Deliberate Indifference?

By: Robert P. Vogt

The language used by courts to describe conduct is often easy to understand. Murder, for example, has been defined as the intentional killing of another person. Courts find medical malpractice to exist when the conduct of a medical professional is careless; i.e., less careful than that conduct required by the professional’s standard of care. These judicially created definitions are generally consistent with the definitions found in most dictionaries.

A civil rights claim is more difficult to define. In a civil rights claim, the court’s key inquiry is whether a medical professional acted with "deliberate indifference". Unlike most words, the meaning of deliberate indifference cannot be ascertained by simply looking in the dictionary. "Deliberate", according to the dictionary, means carefully thought out beforehand; made or done on purpose; intended. The dictionary defines "indifference" as having or showing no interest or attention. Combining the two dictionary definitions suggests that a person acts with deliberate indifference when a person carefully thinks about not having any interest. My dictionary calls that a "contradiction in terms".

Nevertheless, it is important for a professional working in the correctional health care field to have a general understanding of how courts define deliberate indifference. Since deliberate indifference is the standard that courts apply to determine if a professional has violated an inmate’s civil rights, having a general familiarity with the judge-created definition is imperative. One good place to start is an example provided by a federal appellate court judge. While the example involves correctional officers, the same general concept applies to the medical professional:

If a prisoner is placed in a cell that has a cobra, but the officers do not know that there is a cobra in the cell and they do not know that there is a high probability that there is a cobra in the cell, the officers are not guilty of deliberate indifference even if they should have known about he risk, that is, even if they were negligent or grossly negligent for failing to know [that the the cobra was in the cell]. But, if the officers know that there is a cobra in the cell, or know that there is a high probability of a cobra in the cell, and the officers place the prisoner in the cell anyway, that is deliberate indifference. Billman v. Indiana Department of Corrections, 56 F.3d 785 (7th Cir. 1995).

In other words, deliberate indifference occurs when a professional knows of and disregards an excessive risk to an inmate’s health or safety. While it is difficult to identify a bright line addressing what does and does not constitute deliberate indifference, courts have recognized several factual scenarios where deliberate indifference exists.

The first and perhaps most obvious example is the intentional denial of medical care. Assume an inmate is brought to the medical unit exhibiting severe pain and complaining that he broke his wrist playing basketball. The inmate’s wrist is visibly swollen and discolored. Rather than performing an examination, the inmate is given two Tylenol tablets and sent back to his cell. Intentionally refusing to provide treatment for an obvious injury is recognized as deliberate indifference. Another example is where an inmate continuously complains about a medical condition but no action is ever taken to address the inmate’s complaints. A pattern of intentionally refusing to respond to an inmate’s complaints has been acknowledged as constituting deliberate indifference. See, Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997).

A second area where deliberate indifference is found involves the intentional delay of medical care. Using the same example from above, assume the inmate’s wrist is examined and found to be broken. Instead of sending the inmate to the hospital, he is given Tylenol and placed on the physician’s call list. The physician, however, is not scheduled to be in the jail for several days. Intentionally delaying medical care for a known injury (i.e. a broken wrist) has been held to constitute deliberate indifference. See, Farmer v. Brennan, 511 U.S. 825 (1994).

A third and final scenario involving deliberate indifference is the intentional failure to follow physician orders. If a physician issues an order, whether for medication or for some other form of treatment, it is imperative that the order be implemented. In most correctional facilities, it is the nurse’s job to implement the physician’s order. While failing to follow a physician’s order on one or two occasions may not reflect deliberate indifference, the likelihood that a court will find deliberate indifference increases dramatically as the number of nursing omissions rise. See, Davis v. Jones, 936 F.2d 971 (7th Cir. 1991).

It is important to keep in mind that deliberate indifference is not synonymous with malpractice or negligence. It is generally more difficult for an inmate to prove deliberate indifference than to prove that a nurse or doctor was careless and committed medical malpractice. Even if an inmate can prove that a nurse or physician was negligent, that is not enough. Instead, to carry the day for a civil rights claim, the inmate must prove that the professional’s misdeed resulted from intentional, rather than negligent, conduct.

Inmates can be very litigious. While preventing inmates from filing lawsuits is not possible, steps can be taken to reduce the ammunition with which the inmate has to work. If an inmate has a medical problem, address it. Provide the proper medical care and chart the inmate’s complaints and treatment. Avoid intentionally denying, delaying or failing to implement medical care. Always keep in mind that if you ignore the cobra, it may come back to bite you.