Private Health Care Providers Should Understand the Risks When Treating Inmates - BB&K's Jared Goldman Examines the Potential Liability, Other Legal Issues

by Best Best & Krieger LLP

If you have worked in correctional health care for a while, you have heard about the Eighth Amendment’s prohibition against “deliberate indifference” to an inmate’s medical needs. But you may be unaware of the patchwork of laws authorizing or limiting actions for damages against private health care providers arising from constitutional claims. While it may not seem fair, a private health care provider’s potential liability arising from a constitutional claim will vary depending on whether the provider treats a federal or state inmate. The scope of the liability will also vary depending on whether the claim is against an individual or a corporate entity. In addition, the issue of whether inmates may bring Eighth Amendment-based damages actions against certain “involuntary” providers, like noncontract emergency room physicians, remains largely unsettled.

Federal Inmates

While no specific statute authorizes damages actions against federal officials for constitutional violations, courts interpret the Constitution to implicitly authorize an action for damages (known as a “Bivens” action) where a prisoner is harmed as the result of deliberate indifference to his or her medical needs. Private providers, however, have caught a break. Last year, in Minneci v. Pollard, the Supreme Court considered whether a Bivens action could be brought against individual health care providers employed at a private federal prison. The court held that, because state law authorized adequate alternative damages actions (e.g., state medical malpractice actions), the court was required to refrain from implying a constitutional remedy against the employees. Eleven years earlier, in Correctional Services Corporation v. Malesko, the court reached a similar result with respect to private corporations.

This is no reason for individual or corporate health care providers to shirk their responsibilities. They remain subject to liability for damages in claims brought under state law, among other legal and ethical obligations. But because state law causes of action usually have a shorter statute of limitations than Bivens actions, federal inmates will probably find it more challenging to hold private providers accountable for deficient care.

State and Local Inmates

Private providers caring for state or local inmates have not escaped accountability under federal law for constitutionally deficient care. A plaintiff may bring a damages action under 42 U.S.C. § 1983 where there is an alleged violation of a right secured by the Constitution and the alleged deprivation was committed “under color of state law”—meaning it was committed by a person whose actions are fairly attributable to the state (a “state actor”). In the leading case about private health care providers, West v. Atkins, the Supreme Court held that an individual physician under contract with a state department of corrections to provide medical services was a state actor for the purpose of § 1983, and thus subject to an Eighth Amendment-based damages action, when he treated an inmate inside a state hospital.

The Supreme Court has not yet addressed whether a private provider is a state actor when providing care to state or local inmates outside a government facility. But the circuit courts addressing the issue have generally agreed that a private provider in a private outside facility may be a state actor for the purpose of §1983 if the provider has voluntarily assumed responsibility to provide care to inmates. This is true even if there is no contract governing the arrangement.

A state or local inmate may also bring a damages action under § 1983 against a corporate entity if the entity is performing functions traditionally within the exclusive prerogative of the state, like the provision of medical care to inmates. The inmate must also prove that an official policy or custom of the entity caused the constitutional violation. Courts have reasoned that a corporation should not be held accountable for constitutionally deficient care merely because it employs a bad actor, for example, a provider who independently ignores an inmate’s serious medical needs. Rather, the corporation should be liable only where the official decisions of the entity itself cause the constitutional injury. Where no constitutionally deficient custom or policy exists, the inmate’s action should be directed against the individual bad actor, not the employing entity.

Unsettled Law: ‘Involuntary’ Treatment Relationships

The courts have reached conflicting conclusions on the issue of liability for Eighth Amendment-based damages actions against private providers who involuntarily find themselves in circumstances where they must care for inmates. This situation may occur, for example, where a noncontract emergency room physician is obligated to provide care under the Emergency Medical Treatment and Active Labor Act to an inmate delivered to the emergency room.

On one side of the debate, courts have reasoned that a state shouldn’t be allowed to avoid liability for constitutional claims by “delegating” care to private providers. On the other side, courts have asserted that it is unfair to infer that a private provider has accepted responsibility for performing a state function where the provider has no ability to refuse the treatment relationship. The split among the courts is unlikely to be resolved soon.

Thus, providers drafted into serving correctional facilities, for example, through the emergency medical response system, should carefully consider the advantages and disadvantages of entering agreements with their corrections neighbors. Although an agreement may open the door to an Eighth Amendment-based damages action, that door may already be open without or without the agreement, and in some jurisdictions it may be possible to negotiate contract provisions offsetting risks related to constitutional claims. For example, in California, the state is authorized to indemnify and defend a private health care provider against constitutional claims so long as the provider is contracted with the state and maintains insurance for professional negligence and the insurance is the source of recovery for any negligence claim.

In sum, providers should always consult with competent counsel before entering into arrangements for correctional health care services. However, a basic understanding of the applicable rules and blind spots is a valuable tool that government officials and private providers alike can use to understand their potential risks when planning service arrangements. Improving our collective understanding of these issues not only serves correctional health care providers, but also reduces the uncertainty and fear that often deters providers from caring for inmates and thus reduces inmates’ access to essential care.

* This article was originally published in CorrectCare, in the Spring 2013 issue. Republished with permission.

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