26-g-1 Right to Medical Treatment

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

26-G-1. Right to Medical Treatment

If you are denied medical treatment for an infectious disease, you may have a claim that the prison violated your rights under the Eighth Amendment. The Eighth Amendment protects you from cruel and unusual punishment. To win an Eighth Amendment claim, you must prove that prison officials showed "deliberate indifference" to your "serious medical needs."¹⁴³ It is important to remember that courts do not think that every claim of inadequate medical care is bad enough to be a constitutional violation.¹⁴⁴ But a few courts have held that a denial of prescribed AIDS or hepatitis C medical treatment does violate a prisoner's constitutional rights.¹⁴⁵ See Chapter 23 of the JLM, "Your Right to Adequate Medical Care," for more information on how to bring an Eighth Amendment claim for failure to provide adequate medical treatment.

Courts generally do not believe prisoners have a constitutional right to a private doctor or experimental medication.¹⁴⁶ You may still be able to get experimental drugs, but you will probably not have an Eighth Amendment claim against your facility if it does not prescribe them for you. But some prisons have participated in clinical trials for anti-retroviral therapy for AIDS. To take part in such trials, you must first get approval from the Institutional Review Board of the testing site and your prison's medical department.¹⁴⁷

If you believe that your health is suffering because you are being wrongfully denied medication, you will probably have to show that the medical community agrees that this medication will help your condition. Otherwise, the court may see your claim as a simple disagreement between you and your doctor.¹⁴⁸ If you want to bring a claim about medical treatment or medication that was denied to you sometime in the past, a court may look back to see what the accepted medical practices were at that time.¹⁴⁹

If you got medical treatment but you think that a prison doctor incorrectly diagnosed your condition, it will be hard to bring a successful case against the prison officials. In the past, courts have dismissed cases for different reasons. The reasons include because the prisoner could not prove that the prison officials had personal involvement.¹⁵⁰ In other cases, the prisoner could not show any physical harm, or the prisoner could not...