23-b-4 Medical Negligence

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

23-B-4. Medical Negligence

(a) Medical Negligence Is Not Unconstitutional

You cannot win a federal constitutional claim of deliberate indifference by alleging only that prison medical staff acted negligently, no matter how often or repeatedly they were negligent. However, you still may be able to make a state tort claim of negligence, which is described in the next Subsection. "Negligence" is when a person fails to exercise care that a "reasonable person" would exercise to protect someone at risk.⁸⁰ Medical negligence is often called medical "malpractice." Again, "the Eighth Amendment does not protect prisoners from medical malpractice."⁸¹

At one time, negligence was grounds for liability.⁸² After the Supreme Court's holding in Farmer v. Brennan, however, mere negligence-even repeated negligence-cannot by itself constitute deliberate indifference.⁸³ Therefore, in a class action suit brought by prisoners in Ohio, the court held that if the prisoners could only prove the prison doctor was repeatedly negligent in his treatment, but not that he was "subjectively aware of a substantial risk of serious harm," then the prisoner had not stated an Eighth Amendment claim.⁸⁴ Even if it is possible that an official's action led to the death of a prisoner, negligence alone is not enough to bring a federal constitutional claim.⁸⁵ Repeated acts of negligence can be evidence that a prison official is ignoring a substantial risk, but acts of negligence by themselves, without any other claim, cannot count as deliberate indifference.⁸⁶

(b) State Law Negligence Claims Are Possible

If you believe that you were injured because prison medical staff acted negligently, you cannot make an Eighth Amendment deliberate indifference claim, but you can still make a negligence claim under state law. To prove negligence under state law, you must prove that (1) the defendant (your prison) owed a duty of care to you; and (2) that this duty was "breached," meaning that the prison was responsible for some aspect of your well-being and did not honor its responsibility.⁸⁷ Therefore, you must ask whether the prison's medical practitioner did for you what a reasonable health professional would have done for you in the same circumstances.⁸⁸

You can find many of the duties a prison owes its prisoners listed in state laws. Thus...