Under Illinois law, a healthcare provider facing allegations of malpractice knows that the standard by which his or her actions will be judged is what a reasonably careful healthcare provider would do under the same or similar circumstances based upon testimony provided by expert witnesses from the same area of practice. However, physicians and healthcare providers practicing in prisons, jails, and detention facilities will find that their decisions will be adjudicated under disparate standards that depend on a lay jury’s understanding of “objective unreasonableness.”
History of the Standard Used for Evaluating §1983 Claims Against Healthcare Providers
Section 1983 provides a federal cause of action that is a “species of tort liability” against any person who, acting under color of state law, deprives another of a federal right, privilege, or immunity recognized by the United States Constitution. Conn v. Gabbert, 526 U.S. 286, 290 (1999). Within the context of a prisoner litigation, that cause of action can allege the “deprivation of rights, privileges, or immunities secured by the Constitution and laws.” Blossom v. Dart, 64 F. Supp. 3d 1158, 1161 (N.D. Ill. 2014). The Supreme Court recognized the right to adequate medical care in prisons, jails, and detainment facilities in 1976. Estelle v. Gamble, 429 U.S. 97 (1976). “An inmate must rely on prison authorities to treat his [or her] medical needs; if the authorities fail to do so, those needs will not be met.” Id. at 103. Where there has been a “deliberate indifference to a prisoner’s serious medical needs,” that deliberate indifference violates the prisoner’s rights against cruel and unusual punishment under the Eighth Amendment. Id. at 106. This standard was meant to connote that there was more than mere negligence involved in the claimed wrongful or denied medical care. See Farmer v. Brennan, 511 U.S. 825, 835 (recognizing that “deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”)
In Farmer v. Brennan, the United States Supreme Court set forth the standard to evaluate a claim involving the denial of medical care brought by an individual in a prison, jail, or detention facility: whether the official knows that the inmate faced “a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825 (1994). Under this standard, a two-pronged analysis was utilized, containing both an objective and subjective component. The objective component analyzed whether the incarcerated individual had an “objectively, sufficiently serious medical need.” The subjective component determined, in a health care setting, whether the practitioner was aware of the incarcerated individual’s serious medical need and chose to disregard it. This standard enunciated in Farmer was used for years and prevented the imposition of liability of healthcare providers for negligence or failure to comply with the standard of care.
Kingsley Recognizes the Distinction Between Convicted Prisoners and Non-Convicted Detainees
After several years of dicta by Justices of the Supreme Court about the distinction between incarcerated individuals in prisons who have been convicted of a crime, and individuals held in jails and detainment facilities who may be charged with a crime but have not been convicted, the decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), was released. Kingsley v. Hendrickson, involved a §1983 claim by a pretrial detainee that a guard used excessive force, including use of a Taser while he was in handcuffs, when a guard observed an alleged cell violation during a cell check. Kingsley recognized that a pretrial detainee’s §1983 claim should be analyzed under the Fourteenth Amendment, not the Eighth Amendment that is used for convicted prisoners.
In deciding whether the force deliberately used is, constitutionally speaking, “excessive,” should courts use an objective standard only, or instead a subjective standard that takes into account a defendant’s state of mind? It is with respect to this question that we hold the courts must use an objective standard. In short, . . . a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.
Id. at 2472-73.
Imposing the New Standard in the Context of Healthcare
In 2018, the Seventh Circuit released its opinion in Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018). Miranda involved §1983, international treaty, and Americans with Disabilities Act claims against the Director of Mental Health, social workers, and physicians at a pretrial detainment facility for failing to intervene sooner when a pretrial detainee refused to take food and water or submit for medical care. After 15 days, the detainee was sent to a local hospital, but eventually died. There was no evidence at the trial regarding what the cause of the detainee’s death was, aside from a death certificate that listed death as “complications of starvation and dehydration” and manner of death as suicide. Id. at 342. There was no expert testimony “explaining what the notation of ‘complications of starvation and dehydration’ in the autopsy report meant and how those complications related” to the inmate’s death. Id. at 346.
The Seventh Circuit, reviewing the grant of directed verdict in favor of the physicians, found that in light of the Supreme Court’s decision in Kingsley, the standard used to evaluate a pretrial detainee’s claims regarding medical care “are subject only to the objective unreasonableness inquiry identified in Kingsley.” Id. at 352. As envisioned by the Miranda Court, the standard to evaluate the conduct of healthcare defendants defending claims of inadequate or improper care brought under §1983 by a pretrial detainee would be:
- Whether there was an objectively serious medical need;
- Whether the defendant made a volitional act with regard to the plaintiff’s medical need;
- Whether that act was objectively unreasonable under the circumstances in terms of treating or assessing the patient’s serious medical need; and
- Whether the defendant acted purposefully, knowingly, or perhaps even recklessly with respect to the risk of harm?
Herein lies the difficulty with applying a standard that was developed to evaluate the use of force and applying it to a case that involves the practice of medicine. When a taser is applied to an individual, or a club used to strike an individual, the consequences are clear and able to be understood by a lay juror. However, when a medical decision has been made, the healthcare professional operates based upon known facts. This does not always necessarily mean that the healthcare professional will have all information necessary to make a decision, or that even with full information, that the care provided will not have complications or will be successful. This is why within the context of a medical malpractice claim, the standard is what a reasonably careful healthcare provider would do under the same or similar circumstances. Further, the analysis of the question must be guided by expert testimony from individuals who practice in the same field. The analysis under Miranda has no such requirements.
Since the publication of Miranda, other courts have attempted to apply the new standard enunciated. The Eastern District of Wisconsin addressed the difficulty of applying the objective standard in cases involving medical decisions. In Terry v. County of Milwaukee, 357 F. Supp. 3d 732 (2019), a nine-month pregnant heroin user was arrested, taken to a local hospital for evaluation, cleared, and then placed in the jail’s special medical unit. Id. at 739-40. An unidentified hospital representative advised the nurse working in the special medical unit that the detainee was not in labor, but they did not provide a treatment plan in light of her impending opiate withdrawal. Id. at 740. The detainee went into labor, gave birth in her cell, and the baby had difficulty breathing. Id. at 741-42. The detainee brought an action pursuant to §1983 alleging that her constitutional rights were violated when she was ignored while she gave birth, and that she was denied medical care in violation of her Fourteenth Amendment rights. Id. at 738.
The District Court recognized that based upon the status of the plaintiff as a pretrial detainee under the standard enunciated in Miranda would apply to her case. However, it also recognized that the standard is “difficult to apply” in the medical arena. Id. at 744.
In Kingsley, the Supreme Court stated that the intent element is intended to foreclose accidents. Miranda’s intent element initially appears to correlate with this threshold question in Kingsley as to whether the defendant’s conduct was volitional. But asking whether the defendant acted purposefully, knowingly, or recklessly with respect to “the consequence of [their] actions” goes well beyond asking whether [they] performed volitional acts.
Id. at 744-45 (citations omitted). The District Court provided an example to illustrate its point:
For instance, it is indisputable that a doctor who performs a surgical removal of a limb engaged in volitional acts to bring about that removal—[the doctor] did not cut off the patient’s leg by accident. It is a far different question to ask whether [the doctor] performed those acts with purposeful, knowing, or reckless indifference to the consequences of the removal—i.e., future infection, removing the wrong leg, permanent handicap or disfigurement, or other medical problems. When read this way, Kingsley’s first element, which is intended to exclude those claims where the harm caused was a complete accident, does not align with the first element set forth in Miranda. This is to say, Miranda’s volitional element probes the defendant’s appreciation of the consequences of his actions, while Kingsley’s does not.
Id. at 745. Of greater concern is whether the analysis is tantamount to a determination of mere negligence, which was the danger that the attorneys for the healthcare provider defendants in Miranda warned. Miranda, 900 F.3d at 353 (“The defendants here worry that an objective-reasonableness standard will impermissibly constitutionalize medical malpractice claims, because it would allow mere negligence to suffice for liability.”) The Terry Court recognized the same danger: “What is more, asking whether the jail doctor’s conduct is objectively reasonable is equivalent to asking whether they were negligent—that is, whether they failed to demonstrate ordinary, reasonable care in the face of a risk of harm.” Terry, 357 F. Supp. 3d at 745.
The Terry Court ultimately opined that the question to be raised is whether the healthcare provider was reckless, or “recklessly indifferent.” Id. at 745. However, the concern continues to be what the proof necessary to make this showing might be.
The Seventh Circuit’s decision in Miranda is not the standard in use throughout the United States. The Eighth, Eleventh, and Fifth Circuits have refused to extend the Kingsbury decision beyond cases involving excessive force. See Whitney v. City of St. Louis, 887 F.3d 857, 860 (8th Cir. 2018); Dang v. Sheriff, Seminole County, 871 F.3d 1272, 1279 (11th Cir. 2017); Alderson v. Concordia Parish Corr. Fac., 848 F.3d 415, 419 (5th Cir. 2017). The Second and Ninth Circuits adopted an objective standard to medical-based claims brought by pretrial detainees. See Castro v. County of L.A., 833 F.3d 1060, 1070-71 (9th Cir. 2016); Darnell v. Pineiro, 849 F.3d 17, 34-35 (2d Cir. 2017).
A writ of certiorari was filed in Gordon v. County of Orange, 139 S. Ct. 794 (2019), a Section 1983 claim also alleging a pretrial detainee was deprived of medical care. The States of Indiana, Hawaii, and Texas filed amici curiae in support of the request for certiorari, arguing that there is a split in authority among the Circuits regarding what the constitutional standard is for medical personnel providing care to pretrial detainees and requesting the Court clarify the standard. The writ of certiorari was denied. Id. It seems unlikely at this time that the Appellate Courts will receive further guidance from the Supreme Court.
Practitioners defending medical personnel against Constitutional claims brought by individuals who fall within the category of pretrial detainee need to be aware of the change in standard by which the medical personnel’s decisions and care will be evaluated. Practitioners should establish early in the course of litigation what the practitioner’s understanding of the patient’s condition and circumstances were, as well as the consequences of their care decisions. This evidence should be helpful in making the showing necessary under the Miranda standard. Finally, counsel defending healthcare providers must argue that a lay jury is unable to ascertain or understand the medical care provider’s decisions without the assistance of expert testimony. However, even with expert testimony, the attorney representing a healthcare provider must advocate for an interpretation of “objectively unreasonable” that pushes past negligence and insist that the new standard still requires some assessment of intent under “volitional act” to tip the analysis away from bare negligence.