Estate Lawsuit Against Medical Practitioners

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1 Tan` Public Law Update May 2012 Curses, foiled again! PREVENTING MEDICAL DELIBERATE INDIFFERENCE LAWSUITS STRATEGIES FOR JAILS AND PRISONS, AND THEIR MEDICAL STAFF By Martin Kosla, Esq. Of Special Interest PUBLIC LAW...6 LABOR AND EMPLOYMENT LAW...8 ENVIRONMENTAL LAW...9 ABOUT OUR LAW FIRM To obtain a free monthly subscription, visit:

2 PREVENTING MEDICAL DELIBERATE INDIFFERENCE LAWSUITS STRATEGIES FOR JAILS AND PRISONS, AND THEIR MEDICAL STAFF By Martin Kosla Martin Kosla, Esq. Associate South Flower Street Suite 2400 Los Angeles, CA Direct: Phone: Fax: An ounce of prevention is worth a pound of cure. Yet the federal courts are flooded with lawsuits brought by inmates in state prisons and county jails alleging that a medical practitioner violated their Eighth Amendment rights 1 because the practitioner did not provide them with the medical attention they thought was appropriate. Such lawsuits can get expensive and unnecessarily increase state and local budgets. It is thus important for officials and medical staff working at jails and prisons to understand the legal standard under which inmates are suing, and to take certain steps to minimize their exposure to these inmate lawsuits. The Eighth Amendment Standard In order to prevail in a lawsuit under the Eighth Amendment for inadequate medical care, an inmate must show that the medical practitioner at the prison or jail was deliberately indifferent to the inmate s serious medical needs. In particular, the inmate must prove that: the inmate had a serious medical need; and the medical practitioner s response to that need was unreasonable. Did the Inmate Have a Serious Medical Need? The courts are of the view that a serious medical need exists if the failure to treat the inmate s condition could result in further significant injury or the unnecessary and wanton infliction of pain. In determining whether the inmate had a serious medical need, the courts will consider whether: a reasonable doctor would think that the condition is worthy of comment; the condition significantly affects the prisoner s daily activities; and the condition is chronic and accompanied by substantial pain. Accordingly, while medical practitioners are generally good at keeping progress notes, it is important that such notes contain sufficient detail to address these factors, especially if the inmate disagrees about the severity of his condition. 1 The medical claims of pre-trial detainees arise under the Fourteenth Amendment s due process clause, and not the Eighth Amendment s cruel and unusual punishment clause, but the same standard applies in both cases. Burke, Williams & Sorensen, LLP (800)

3 Was the Medical Practitioner s Response Reasonable? The deliberate indifference standard is difficult for inmates to satisfy because the courts are of the view that negligence, medical malpractice and gross negligence are insufficient under the Eighth Amendment. However, the medical practitioner will still need to demonstrate that their response to the inmate s medical condition was reasonable. So, what is reasonable? If the inmate has a serious medical need and the practitioner denies the inmate medical care, then this will amount to deliberate indifference. But what if the inmate s treatment has only been delayed? The courts have ruled that the delay of medical treatment can also amount to deliberate indifference. In such cases, however, the inmate must show that the delay led to further injury. Thus, in a case where the inmate alleged that an almost two-month delay in receiving any treatment for a fractured thumb, and a nineteen-month delay in being seen by a hand specialist, had caused pain and the diminished use of his hand because the fracture had healed improperly, the court ruled that the inmate stated a claim of deliberate indifference to his medical needs. And what if the medical practitioner does not have the experience or training to treat the inmate? The courts have found that if the medical practitioner is not competent to examine, diagnose, and treat inmates medical problems, they must refer the inmate to others who can. However, the courts have also ruled that an inmate has no independent constitutional right to outside medical care supplemental to the medical care provided by the prison. What if the inmate disagrees with the medical practitioner s course of treatment? A difference of opinion between the inmate and the medical practitioners as to his course of treatment is insufficient to establish an Eighth Amendment claim. To establish that a difference of opinion amounted to deliberate indifference, the inmate must show that the course of treatment the medical practitioner chose was medically unacceptable under the circumstances, and that they chose this course in conscious disregard of an excessive risk to the inmate s health. This means that an inmate may demonstrate deliberate indifference if prison officials relied on the contrary opinion of a non-treating physician. Municipal Liability In addition to suing the individual medical practitioner who provided treatment, inmates housed in city or county jails often sue the municipality responsible for operating the jail. (The state is immune under the Eleventh Amendment.) However, a municipality may not be held vicariously liable for the unconstitutional acts of its employees under a theory of respondeat superior. Rather, a municipality is subject to liability under the Eighth Amendment only when official policy or custom results in a violation of a constitutional right. As such, to impose liability against a municipality, an inmate must show that: the inmate possessed a constitutional right of which he was deprived; Burke, Williams & Sorensen, LLP (800)

4 the municipality had a policy; the policy amounted to deliberate indifference to the inmate s constitutional rights; and the policy was the moving force behind the constitutional violation. So, in addition to establishing medically unreasonable treatment, the inmate needs to show that some sort of custom or policy of the hospital actually caused his injury. However, establishing municipal liability will be difficult as isolated departures by medical staff from policy or practice may not be enough. The courts are of the view that proof of random acts or isolated incidents of unconstitutional action are generally insufficient to establish existence of municipal policy or custom. What does this mean for city and county jails? Although an inmate will struggle to establish municipal liability, officials in charge of operating these facilities still need to ensure that clear policies are established relating to the medical treatment of inmates by prison staff. There should also be a procedure for ensuring that the policies are actually followed by staff members. Liability of Private Hospitals Providing Care to Inmates It is also quite common for an inmate to be sent out by his treating physician at the prison or jail to a private hospital for surgery that will be performed by one of the doctors at that hospital. But what happens if the inmate later files a lawsuit against the hospital, claiming that he received constitutionally inadequate medical care? And what if the government entity operating the prison or jail agreed to indemnify and defend the hospital against any civil rights lawsuits? While the inmate can rightfully pursue his claim against the private hospital, he will only be able to recover against the hospital under the Eighth Amendment if the hospital had some sort of custom or policy of the hospital which actually caused his injury. The courts have determined that, for purposes of the Eighth Amendment, a private organization acting under color of state law is treated as though it were a municipality. So, in addition to establishing medically unreasonable treatment, the inmate needs to satisfy the custom or policy requirement (just like with municipal liability). The only way for the inmate to demonstrate that a hospital custom or policy actually caused his injury is to show that the hospital had an inadequate policy or procedure for screening the competency of its medical staff, or that the screening process was not followed by the hospital. However, this will not be easy for the inmate, as an isolated departure from the credentialing process may not be sufficient. What does this mean for a prison or jail that sends inmates to an outside facility? Before agreeing to provide a legal defense for any inmate lawsuits, or otherwise indemnify a hospital, the state or county facility needs to ensure that the hospital has a strict Burke, Williams & Sorensen, LLP (800)

5 credentialing and re-credentialing process for independent contractors who apply for staff privileges at the hospital. In summary, while not all lawsuits can be prevented, medical practitioners working at jails and prisons can minimize their exposure by at least keeping clear and detailed progress notes demonstrating that the treatment which they prescribed was reasonable. Further, officials at jails and prisons need to ensure that clear policies are established relating to the medical treatment of inmates by prison staff. Finally, all applicable policies and procedures relating to the credentialing of physicians at the hospital should be reviewed and examined before a state or county entity agrees to indemnify the hospital for its legal defense in any of its contracts with the hospital. Burke, Williams & Sorensen, LLP (800)

6 Burke, Williams & Sorensen, LLP, 2012, all rights reserved. The case law summaries with a link to the web address are provided as a courtesy to Burke, Williams & Sorensen, LLP, its clients, and its prospective clients by the Metropolitan News-Enterprise. Metropolitan News-Enterprise, SOS and MNC are registered trademarks of the Metropolitan News Company. Summaries are copyrighted by Metropolitan News Company 2012, all rights reserved. The Public Law Update is edited by Stephen A. McEwen. The cover page photo is by Shutterstock. PUBLIC LAW Where developer sued city to enforce contract requiring city to install certain infrastructure on developer s property, and city alleged in cross-complaint that the filing of the suit was an unlawful business practice because the developer had bribed a council member in order to get the city to enter into the contract, the filing of the suit constituted protected activity under the anti-slapp statute but the bribery did not; proper disposition of such a mixed cause of action is to strike the portions that fall within anti-slapp protections, absent a showing that the party bringing the cause of action is likely to prevail. Public enforcement exception to the anti-slapp statute does not apply unless suit is brought in the name of the People, and the public interest exception does not apply where the cause of action is brought primarily to assert a public entity s financial interests. Attorney fee award directing appellant to pay money to the opposing party, where independent of the main causes of action, is appealable under the collateral order exception to the final judgment rule. City of Colton v. Singletary; Fourth District, Div. Two; filed May 30, Cite as E Deputy district attorney who released autopsy photograph of child to the press breached mother s privacy interest. However, that fact that he was not acting under color of state law precluded liability under 42 USC Lack of clearly established prohibition on action entitled prosecutor to qualified immunity. Marsh v. County of San Diego; filed May 29, Cite as Order Martinez v. Ryan; filed May 29, Cite as Burke, Williams & Sorensen, LLP (800)

7 Vacatur of trial court judgment pursuant to settlement would be adverse to the public interest where judgment faults state agency for rendering a decision without due regard for the statutory and constitutional laws that govern its decisionmaking. City of Palmdale v. State Board of Equalization; Second District, Div. One; filed May 23, Cite as B Trial court correctly placed the burden on plaintiff, a temporary certificated school employee, to prove her claim that she was improperly classified as a temporary employee, and properly relied on district s evidence in concluding that district established that the number of temporary certificated employees did not exceed the number of certificated employees on leave at any time during the years plaintiff was classified as a temporary employee as required by Education Code Sec , nor did district violate any law by hiring temporary teacher on a year-to-year basis. While Sec permits a temporary employee who has served one full year in a temporary position and who is reemployed the following school year in a vacant position to be classified as a probationary employee, and to have the first year of employment as a temporary employee reclassified as probationary for the purposes of acquiring permanent status, plaintiff did not qualify because the term vacant position is specifically defined by the statute, and it does not include a position where the regular holder of the position is on leave of absence. McIntyre v. Sonoma Valley Unified School District; First District, Div. Four; filed May 1, 2012, publication ordered May 22, Cite as A State has exclusive jurisdiction over granting and revoking licenses for county commissioners of agriculture and sealers of weights and measures, but counties have the authority to terminate their employment for reasons related to purely local concerns. Neville v. County of Sonoma; First District, Div. Two; filed May 21, Cite as A Title II of the Americans with Disabilities Act, which prohibits discrimination in the provision of public services, does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law. James v. City of Costa Mesa; filed May 21, Cite as Burke, Williams & Sorensen, LLP (800)

8 Property owner claiming permanent severance damages in eminent domain case was not required to show substantial impairment of access to his property in order to have his evidence admitted; trial court erred in excluding evidence supporting plaintiff s claims of a decrease in value of his property due to view changes, effects on drainage, changes in the depth of utility lines, and increased traffic hazards as a result of city project. City of Livermore v. Baca; Sixth District; filed May 16, Cite as H Where plaintiff was struck by a drunk driver while returning to her parked car after watching a baseball game at a public park, and sued town for maintaining a dangerous condition of public property on the theory that the road and the area where she had parked were configured in a way that induced park visitors to park where she had parked while inducing drivers to drive through that area in order to bypass stalled traffic on the road evidence regarding the frequency of drivers driving through the area, the frequency and convenience with which visitors parked in the area and the paucity of visible no parking signs, along with detailed expert opinion regarding town s maintenance of a dangerous condition, raised numerous issues of fact concerning the existence of a dangerous condition and a causal relationship between the characteristics of the property and plaintiff s injuries. Cole v. Town of Los Gatos; Sixth District; filed April 27, Cite as H LABOR AND EMPLOYMENT LAW City s retroactive repeal of program that allowed retirees to convert their annual leave to service credit for the purpose of calculating retirement benefits, in response to IRS determination that the program violated federal tax laws, did not constitute a breach of contract or an unconstitutional impairment of contract, where governing contract provisions allowed city to suspend or supersede any part of the contract that was held to be preempted by state or federal law. Council resolution approving agreement between city and unions, amending retirement program so as to allow certain incumbent union presidents to combine city and union salaries for purpose of calculating benefits, violated charter provisions requiring that retirement changes be enacted by ordinance and approved by vote of plan members. Incumbent president program agreement was not enforceable under state Meyers-Milias-Brown Act in absence of a written and signed memorandum of understanding; even if there was an MOU, it would be unenforceable where entered into in violation of city charter. Burke, Williams & Sorensen, LLP (800)

9 San Diego City Firefighters, Local 145, AFL-CIO v. Board of Administration of the San Diego City Employees' Retirement System; Fourth District, Div. One; filed May 25, Cite as 2012 S.O.S ENVIRONMENTAL LAW Coastal Commission acted in excess of its jurisdiction when it approved amendments to a city s certified local coastal program at the request of state agencies, over the objections of the city, where the amendments were not requested to undertake a public works project or energy facility development, but instead changed the city s land use policies and development standards as they would apply to future plans for development within the city. City of Malibu v. California Coastal Commission (Santa Monica Mountains Conservancy); Second District, Div. Eight; filed May 10, Cite as 2012 S.O.S CEQA Guidelines Sec , which limits subsequent environmental review following an agency's adoption of a negative declaration, is a valid regulation that implements the principles contained in Public Resources Code Sec Substantial evidence supported agency s determination that it was not required to prepare an EIR prior to adopting equitable distribution plan regulations governing distribution of water in the event of shortfall, where the regulations did not in fact increase the priority preference that industrial users would receive over agricultural users in case of a water shortage as those users contended. Abatti v. Imperial Irrigation District; Fourth District, Div. One; filed April 26, Cite as D Tape recordings of public agency hearings qualify as other written materials for purposes of Public Resources Code Sec (e)(10) and must be included in the record of proceedings under CEQA. The term submitted as used in the statutory phrase written evidence submitted in Sec (e)(7)) means made readily available, so documents named in a comment letter along with a specific Web page address containing that document and documents previously delivered to the public agency were submitted but documents that were simply named in a comment letter or named along with a reference to a general web site were not submitted. Trial court did not err when it determined that the public agency s files on the project under Sec (e)(10)) did not include files maintained by subconsultants. Letter to city from county concerning project should have been included in the record of proceedings pursuant to Sec (e)(7). Trial court properly denied petition to compel production of subconsultants files under the Public Records Act where substantial evidence supported Burke, Williams & Sorensen, LLP (800)

10 findings that files were not subject to disclosure as public records in the possession of the city. Consolidated Irrigation District v. Superior Court (City of Selma); Fifth District; filed April 26, Cite as F ABOUT OUR LAW FIRM At Burke, Williams & Sorensen, LLP, diversity precisely describes not only our demographic makeup, but also the scope of our legal expertise, both of which support our ability to fulfill your legal needs. We are as diverse as California itself. The broad range of our areas of expertise mirrors California s own vitality, with respected, proven practices in five general areas: Public Law Education Law Labor & Employment Law Litigation Real Estate & Business Law Our firm has offices throughout California: Los Angeles Inland Empire Marin County Oakland Orange County Palm Desert Silicon Valley Ventura County Burke, Williams & Sorensen, LLP (800)