The Modern Suicide Case In The Correctional Healthcare Setting
By Phillip E. Friduss
I. INTRODUCTION
Today’s correctional healthcare world is the product of a half-century mix of social, legal, and moral paradigm shifts. Ever since the 1976 Supreme Court’s world-spotlight decision in Estelle, the obligation to provide meaningful healthcare to the incarcerated has skyrocketed – as has the quality of attorneys bringing claims for lapses in those services, and the sophistication of the theories utilized in advancing such claims.
Smack in the middle of this movement is the issue of jail/prison suicide, the leading cause of death amongst the incarcerated, accounting for some 34% of all inmate deaths.[1] According to the Department of Justice, suicide has been the number one cause of death among inmates every single year since 2000. These startling statistics are no longer a secret, and savvy plaintiffs’ attorneys are taking advantage of new and innovative ways to bring claims alleging fault on the part of correctional healthcare providers, particularly those professionals from the private sector contracted to provide medical services to inmate populations.
This paper briefly focuses on the landscape of jail suicide claims relevant to the front line providers of medical care to inmates – with specific emphasis on claims against private providers of that care, and the legal defenses and strategies we can utilize to defend these cases.
II. JAILS AND PRISONS – THE NEW MENTAL HEALTH ASYLUMS
A. Some Numbers and Facts – A Quick Snapshot
A fact is a fact. Today’s jails and prisons house 10 times more mentally ill persons than our state mental institutions. That is right, 10 times! A Treatment Advocacy Center study places over 350,000 inmates housed in jails/prisons, compared to just 35,000 in state mental institutions. Economics is the driving factor.
Compounding these staggering numbers is the gravely disproportionate percentage of the those in the system with very real mental issues. To wit, according to the Justice Department, of the nation’s incarcerated:
– 64% have some degree of mental illness
– 52% meet the criteria for some form of mania
– 30% qualify as having major depression
– 24% qualify as having psychotic disorder
In the world of correctional medicine, they are not just our patients, they are our wards. We see them at the time of, or within days of their first appearance as new institutional residents. It is in in these first critical stages that the suicide battle is most often won or lost.
B. A Look at Some Correctional Healthcare Basics
When an inmate first comes to a jail (s)he goes through what is known as book-in. After the fingerprinting, etc., is done, modern tradition has it that some form of suicide assessment is done, often times performed by jailers, minimally trained to do so.
Many times, however, especially in the larger facilities, the procedure is that after booking, the inmate goes straight to a healthcare professional (“provider”) for an initial medical screening. Many times, this initial screening is performed in the same large room that booking resides.
The initial screening is just that, a screening. It is not a full medical examination.[2] A broad spectrum of basic queries are made – Basic history, medications, current condition, TB history, etc. There is also the all-critical suicide assessment.
Being medically trained, the professional most times performs some version of the SAD test, an acronym for 10 well-recognized factors in assessing suicide risk. These include current objective and subjective (the inmate’s own-stated answers and statements) assessments of the inmate’s desire to perform self harm; suicide history; mental history; family history; and the all too frequently glossed over “reason for incarceration,” etc.
Should a medical professional (“provider”) determine a suicide risk is present, the inmate is immediately placed on what is known as suicide watch. In doing so, duties arise so as to keep the inmate from self harm, such as requiring the inmate wear a paper gown, and removing as many a physical instrument that could facilitate self harm, such as belts, socks, shoestrings, sheets, etc.
Suicide watch (also, 53 Watch, and being on 53) also usually generally requires some level of isolation, depending on medical advice and availability. At that point regular rounding is required – oftentimes early on, staged at 15-30-minute intervals, and with varying level of assessments by policy.
For inmates whose mental health improves, these intervals many times become less frequent, by policy, and often times the use of providers for purposes of rounding taper off to none. Not that that relieves them from potential liability on down the road.
The inmate, now our patient and ward, is just that – ours. Rare is there a successful attempt to transfer the patient to a state mental institution. Once the intimal suicide assessment is made by the front-end provider, it is now the provider’s responsibility to get the patient psychologically assessed by one qualified to make high-end standard of care decisions. And, much as in the long-term healthcare profession, the providers now have certain ongoing duties to the patient.
It is not uncommon for an inmate to come off suicide watch and be transferred to general population. depending on how things are panning out. Nor is it uncommon for an inmate who has been so transferred, to end up back on suicide watch, also depending on how things are panning out. These initial screenings are by far the most critical. Here is how it plays out:
There are three (3) times as many suicides in jails as there are in prisons. Even more vital to the mix is that five (5) times as many suicides in jail occur in the first five (5) days. According to DOJ, 23% of all suicides in correctional facilities occur in the first 24 hours.
These early-on suicides often occur from what is known as shock of confinement. Imagine the first-timer, watching the world collapse around him/her in ways perhaps heretofore unimaginable. These early shock of confinement claims can be far costlier than other types of suicide claims. Juries are more sympathetic to the first-time Joe in for minor violations of the law.
III. FEDERAL CLAIMS AGAINST PRIVATE CORRECTIONAL HEALTHCARE PROVIDERS FOR CONSTITUTIONAL VIOLATIONS
A. Estelle v. Gamble and the Deliberate Indifference Standard
On the heels of the tremendous social and civil justice advances of the 1960’s came a growing awareness of the inhumane living conditions in many of the country’s correctional institutions. The Supreme Court’s own inroads in improving those conditions gave rise to J W. Gamble’s case, who sued under the 8th Amendment to the Constitution. Gamble claimed that the less-than-adequate medical treatment afforded him equated to cruel and unusual punishment.
For the first time, the Supreme Court recognized such a cause of action, though limiting it in its application. For, negligence is simply insufficient to state a claim that our Constitution has been violated. Rather, to prove a federal civil rights case for substandard medical care a plaintiff must prove that the responsible party was deliberately indifferent to a serious medical need.
In this context, the Supreme Court has defined deliberate indifference as “a conscious disregard of substantial risk of harm to the prisoner.” In most federal circuits deliberate indifference can only be made out if a plaintiff proves (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence. See, e.g., McElligottv v. Floyd, 182 F.3d 1248, 1255 (11th Cir. 1999); accord Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011).
A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (internal citation and quotation marks omitted), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002).
While some of these federal constitutional standards are interpreted somewhat differently across the nation’s circuits, two (2) things are abundantly clear and unassailable. The first is that negligence is not enough. A Plaintiff has to show a deliberate intention to look away from something bad.
Second, is that the standard for correctional healthcare is measured the same, whether the inmate has been with you for a day, or for twenty-six (26). Though the labels of the claims change (14th Amendment – the accused, but not convicted v. 8th Amendment – the convicted), deliberate indifference is the standard.
B. A Gift to Corporate – No Pure Respondeat Superior Liability
Correctional healthcare providers act under color of law (and hence subject themselves to potential federal constitutional and statutory liability) in the provision of inmate healthcare. But, the Supreme Court gave one back in Richardson v. McKnight, 521 U.S. 399 (1997).
Rejecting that federal constitutional liability might be had on the basis of everyday respondeat superior, the Court held that corporate liability can only be found if an aggrieved patient prove that his/her injury was proximately caused by the corporation itself.
In reality, what the Court did is to give corporate private sector provision of public services, the same protections it gives the nation’s public entities. A high bar, indeed.
C. No Gifts to the Professionals, Though – Yet
Unfortunately, the Supreme Court has chosen to not extend similar courtesies to the individuals providing these services. While federal qualified immunity law often times shields public employees and officials from liability, qualified immunity is not available to the corporate employee.
A potential shift in the tide came down the pike when the Court ruled that a private attorney providing services to local governments was entitled to qualified immunity in Filarsky v. Delia, 132 S.Ct. 1657 (2012). Crossing that back over to the world of correctional healthcare has been met with staunch juridical resistance, but we recommend continuing to push that marker.
D. Fees Heavily in Play
More so than in the state law context, plaintiffs’ attorneys’ fees are squarely in play. As an enticement to get plaintiffs’ attorneys to take low paying civil rights cases in the 1960’s and 1970’s (still very much on the low end), and in the same year the Supreme Court decided Estelle, Congress passed 42 U.S.C. Section 1988, authorizing the requirement that unsuccessful defendants pay victorious plaintiffs’ attorneys’ fees.
E. Today’s Federal Landscape
Plaintiffs have taken a beating over the years by Supreme Courts that have limited the effect of Estelle at most of the turns. The federal claim route once being the uniform method of seeking redress for suicide claims, the Plaintiffs’ Bar has learned. And it has learned the hard way. Those lawyers now do their best to steer away from the federal claims, and the more stringent federal judges.
In most deliberate indifference claims there is the expectation that dispositive motion strategies will be implemented from the very start. It is difficult for plaintiffs to break through the gates.
IV. STATE CLAIMS – PLAINTIFFS’ PREFERRED ROUTE
A. Negligence is a Lot Easier to Prove
That about says it all. While claims against public entity correctional healthcare providers remain problematic to the Plaintiffs’ Bar (what for all the state law immunities, and all), claims against private correctional provision for mishaps in those same services are at an all-time high.
B. Corporate Liability – Good Faith Defense Unlikely; Immunity Really Unlikely
Across the nation, the courts historically reject correctional healthcare companies’ assertions of a right to some form of good-faith defense in these actions where they are undertaking traditional government functions. The advice here is to continue hammering away in our respective courts and legislatures to advance that affording a good faith defense is both analytically proper, and is good public policy.
C. Professional Liability
The front-line private employees and contractors (and others in the chain) are likewise traditionally not afforded the immunities of their public sector counterparts. Again, we advise continuing to work the courts and legislatures.
D. Let Us Not Forget – It IS a Suicide
There is plenty of state law out there on proximate and intervening causes, such as presumptions that the suicide victim’s own actions were the cause of the death. And let us not forget, juries, too, have their own preconceived notions of justice when in it comes to the fragile issue of suicide. Some think that if someone is going to kill himself, well, you cannot do anything to stop it. Others, especially those who have found themselves near to the subject, can really feel like sticking it to the company. Every community is different.
V. BRIEF CLOSURE
The new normal in liability for jail suicide is the straight-up state law medical malpractice claim, borrowing as many helpful principles from parallel private sector medical claims as possible. Though perhaps a bit more susceptible to dispositive motion treatment than purely private suicide claims, these claims are proving more dangerous than ever.
One reason for this danger might be a deeply embedded mistrust for the sheriff, or law enforcement in general. Then, there is the public conception that medical professionals providing services to inmates are at the bottom of the professional scale. Bias shown against providers of different national origins, too, adds to the mix.
And, of course, there is the ever-lurking reptile. “Uncle Ernie gets drunk now and again and ends up in the slammer. But they should not have let him get that far. They did not take care of him at all. They just let him die.” You get the picture.
Learned and aggressive analysis must be undertaken early and effectively. Strategies aimed at dispositive resolution must be included at the earliest of stages.
[1]The fundamental difference between jail and prison is the length of stay for inmates. Jails are for the most part shorter-term stays for those awaiting trial, or those serving very short sentences. Think local and smaller – city and county jails.
Once convicted though, an inmate becomes a ward of the larger state, and is transferred to state prisons, almost uniformly far larger than jails. As will be seen, elementary differences between jails and prisons has an astronomical effect on the risk of inmate suicide.
[2] Uniformly, when correctional healthcare companies contract with the larger institutions, a major component thereof is a requirement that a full medical exam be performed on all inmates, most often, somewhere in the first 3-7 days of incarceration (though from time to time we still do see the 14-day requirement from an earlier day).