Medical Malpractice in Prisons, Two Circuit Court Decisions

January 21st, 2016
Elizabeth Franklin-Best

There are a couple of recent decisions in the Fourth Circuit on this issue that illustrate essential aspects of pursuing medical malpractice suits in the prison context.  First, the requirement for expert certification, and the actual legal showing needed to prove a case.

First, Sowers v. United States, 2015 WL 5693076 (E.D. Va. 2015):  This case essentially reaffirms the importance of strictly reading and construing a statute.   Here, a federal inmate brought a Federal Tort Claims Act medical malpractice claim for medical care (or, more accurately, lack of medical care) that he received while incarcerated in a federal prison.  After complaining, repeatedly, of losing his vision and ocular bleeding (the prison doctor ordered that he receive a new prescription for his eyeglasses), the plaintiff eventually saw a retinal specialist who diagnosed him with ocular histoplasmosis, a fungal infection that progressively destroys vision as the fungal spores spread in the eye.  The lack of timely treatment exacerbated his condition, and his vision loss is irreversible.

Plaintiff sought to sue for malpractice.  He filed his Complaint, and the defendants moved for dismissal for his failure to include an expert certification as required under Virginia law.  The court dismissed this first complaint, but allowed the plaintiff to refile with the expert certification.  Then, importantly, the court appointed counsel to assist the plaintiff, and that counsel was ordered to file an amended complaint including the expert certification required.

In the end, this is a case about whether the plaintiff needed to disclose this expert opinion to the defense at the time he filed the complaint (he did not), or whether the plain language of the statute merely requires that a plaintiff certify he has obtained an expert opinion (he did).    This malpractice case now continues . . .

Giambalvo v. United States, 2015 WL4132042 (N.D. West Virginia 2015) is another disturbing case of untreated Methicillin-resistant Staphylococcus aureus (“MRSA”) in the prison context.   In this case, the court looked to the Bureau of Prison’s medical policies to conclude that the doctor at USP Hazelton performed below the standard of care by failing to undertake certain actions.  Specifically, the doctor rendered substandard care when he failed to take a culture of the plaintiff’s puss-y and infected looking toenail.  He rendered substandard care when he dressed the plaintiff’s toe too tightly and failed to check the compressive dressing within a reasonable time.  The medical staff’s decision to prescribe ineffective and possibly damaging antibiotics (because they did not diagnose plaintiff’s MRSA) was substandard.  Medical staff’s failure to directly observe the plaintiff taking his MRSA medications (once it was discovered) was substandard.

In order to prevail on a medical malpractice claim, a plaintiff must prove, by a preponderance of the evidence (1) the applicable medical standard of care, (2) that the Government failed to meet that standard of care, and (3) that the Government’s negligence was the proximate cause of the injury.  Importantly, the standard of care applicable to physicians treating prisoners is the same as the standard that applies to the general medical community.  District of Columbia v. Mitchell, 533 A.2d 629, 648 (D.C. 1987).   Due to medical professional’s malpractice, this prisoner plaintiff ended up wheelchair bound due to their failure to appropriately diagnose and then treat his MRSA.  The court awarded $300,000 to the plaintiff.

Stethoscope and Handcuffs Isolated on a White Background.

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