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In a July 28, 2018, Kaiser Health News article, Siraphob Thanthong-Knight reports that “state prisons across the US are failing to treat at least 144,000 inmates who have hepatitis C.” This report reviews a recent survey of state corrections departments and concludes that inmates with hepatitis C, a curable but potentially fatal disease, can’t get the expensive drugs they need to cure it.

According to the Mayo Clinic, the hepatitis C virus (HCV) infects and inflames the liver, causing serious damage. Outward symptoms may include jaundice, fatigue, nausea, fever, and muscle aches. In the long term, HCV can cause scarring of the liver (cirrhosis), liver cancer, and liver failure.

The Mayo Clinic report continues, “the infection spreads when blood contaminated with the virus enters the bloodstream of an uninfected person.” In the prison environment, the repetitive use of tattooing needles is a major source of HCV transmission, and the report’s list of risk factors includes having been in prison. Using injected illicit drugs, receiving skin piercings, and practicing unsafe sex are other risk factors that make those in a prison environment susceptible to HCV. Importantly, the report states that

today, chronic HCV is usually curable with oral medications taken every day for two to six months. Still, about half of people with HCV don’t know they’re infected, mainly because they have no symptoms, which can take decades to appear.

Prisoners depend on their imprisoners for health care. The federal and state penal systems stand in the shoes of traditional health care providers, offering primary care doctors, specialty physicians, and mental health professionals. Jails and prisons provide the source of  primary care for inmates who are surrounded by concrete walls and fences crowned with loops of razor wire. So what’s behind the 144,000 inmates’ not being treated for HCV?

The track for suing for medical malpractice is different for incarcerated people than for free people. For example, in California, statutes about medical malpractice lawsuits can be found in California Code of Civil Procedure section 340.5, which states that

the time for commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (emphasis added)

In California, as in all other states, the threshold question of whether medical malpractice has occurred is subject to proof by the finder of fact—judge or jury—of a provider’s negligence. This civil litigation due process system does not apply to people incarcerated in state or federal prisons. What’s the background behind the dubious carve out?

Do Inmates Have a Right to Medical Care?

Over the years, Supreme Court decisions have dealt with health care benefits for prisoners. It is not clear when the legal obligation to provide medical health care to incarcerated people was legally triggered. In 1976, Justice Warren Burger’s supreme court, in a majority decision written by Justice Thurgood Marshall, shed light on that trigger. In Estelle v. Gamble, Marshall gave a framework to determine when the delay of medical care is potentially medical malpractice within the meaning of the Constitution. Before getting to the trigger, the court had to decide at what point in an inmate’s alleged medical malpractice lawsuit a state or the federal government, or its medical employees and staff, becomes potentially liable for medical malpractice. The paramount question before the court was, when do inmates have a right to medical treatment.

Estelle Goes Constitutional

What’s interesting about the Estelle case, besides being handwritten and filed by inmate Gamble himself, is that it sets the legal standard of care for medical malpractice, for withholding medical care was framed in the issue of whether Gamble’s Eighth Amendment protections against cruel and unusual punishment were encroached. As when I practiced law in this area, the standard of care trigger for medical malpractice in state and federal courts is whether the defendant responsible for health care provided care that is within the standard of care in which the defendant practices. The question was the engine behind Gamble’s appellate case’s moving forward as a civil rights violation claim. Was Gamble subjected to cruel and unusual punishment in violation of the Eighth Amendment by receiving inadequate treatment for a back injury he sustained while he was working in prison? In deciding Estelle v. Gamble, nonmedical people concocted a medical standard of care for incarcerated people.

Deliberate Indifference Is Born

The Estelle decision gave birth to a new perspective and raised a high hurdle to restrict the number of medical malpractice lawsuits against states and the federal government: deliberate indifference. The court held that “deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment” (emphasis added). The court concluded that

deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” Gregg v. Georgia, . . . proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care.

The court rejected Estelle’s contentions of deliberate indifference. These are some of his arguments for suing for medical malpractice:

  • In 1974, J. W. Gamble, an inmate within the jurisdiction of the State of Texas, was injured while performing a prison work assignment when a bale of cotton fell on him while he was unloading a truck.
  • Initially, Gamble was checked for a hernia. Because of persistent back pain, “[the prison doctor] and other medical personnel saw [Estelle] on 17 occasions during a 3-month span and treated his injury and other problems.”
  • A long history of questionable treatment and procedures can be found in the court decision. A nonprisoner would have been treated more competently and professionally.
  • “The failure to perform an X-ray or to use additional diagnostic techniques does not constitute cruel and unusual punishment, but is, at most, medical malpractice cognizable in the state courts” (emphasis added).

The dissenting opinion by Justice Stevens reveals the injustice of the majority by its adoption of a medical malpractice standard that is not easy to weigh unless viewed from the experience of the inmate. In his dissent, Stevens wrote the following:

The complaint represents a crude attempt to challenge the system of administering medical care in the prison where Gamble is confined. Fairly construed, the complaint alleges that he received a serious disabling back injury in November, 1973, that the responsible prison authorities were indifferent to his medical needs, and that, as a result of that indifference, he has been mistreated and his condition has worsened.

The indifference is allegedly manifested not merely by the failure or refusal to diagnose and treat his injury properly, but also by the conduct of the prison staff. Gamble was placed in solitary confinement for prolonged periods as punishment for refusing to perform assigned work which he was physically unable to perform.


The Kaiser Health News report found the roadblock to treating inmates. It’s a bottom-line money issue that I contend is deliberate indifference and constitutes an unnecessary and wanton infliction of pain. The drugs necessary to cure HCV can cost up to $90,000 for a course of treatment.

The Estelle decision doesn’t address the question of whether the cost of inmates’ appropriate medical care is an element for determining deliberate indifference. If an inmate has a life-threatening disease for which a cure is available, not to treat the inmate is deliberate indifference.

The article does not acknowledge states such as California that are taking the responsible steps to expand their inmates’ access to HCV drugs. According to a June 21, 2018, California Healthline piece by Pauline Bartolone, California “state officials also have allocated $106 million in next year’s budget to treat inmates with hepatitis C in California’s prisons. The officials plan to allocate the same amount in each of the two following years.”


Courts of law are often called upon to unravel legislative intentions through the litigation process. The end results are two separate legal worlds in which rights for free versus incarcerated people are different. Incarcerated people are isolated from advocating for alleged medical malpractice by an attenuation of rights that represents yet another area of marginalization for this population.

The onerous reality is that the federal government and the states have succeeded in using the courts to insulate their exposure to medical malpractice lawsuits from a very unprotected class of citizens— incarcerated people.

Relevant Related Reading

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, is a US federal law that Congress enacted in 1996 in response to what it determined was a significant increase in prisoner litigation in the federal courts. This act was designed to decrease the incidences of litigation within the court system.

I always welcome your comments.


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