By: Stewart G. Milch
They’re not as common as claims against prison guards for using excessive force; but doctors, nurses, and other healthcare professionals who treat pretrial detainees in jails are often sued for civil rights violations under 42 U.S.C. § 1983 for allegedly negligent medical treatment.[1] And it’s not just government employees; providers working in jails part-time to earn extra money are often sued, too. Generally, the detainees—or their families, if it’s a wrongful death case—point out that they have a constitutional right to adequate medical treatment and claim that a provider was “deliberately indifferent” to their serious medical needs. The “deliberate indifference” language is important; regular rules governing medical negligence cases aren’t applicable to claims under section 1983. Some rules to be aware of are discussed below.
What is 42 U.S.C. § 1983 and how does it provide a right to sue jail healthcare providers?
Section 1983 was enacted as part of the Civil Rights Act of 1868, and it ultimately became law in 1871. Its purpose was to provide a means of enforcing the Fourteenth Amendment’s due process guarantee to all U.S. citizens. It allows lawsuits against public or private employees acting “under color of state law.” Filarsky v. Delia, 566 U.S. 377 (2012). This includes allowing claims against jail health care providers, even if those providers are only part-time employees—like providers who are full-time hospital or medical practice employees but also “moonlight” or work a second job.
The Qualified Immunity doctrine limits civil rights claims against some jail healthcare providers[2]
Although privately employed health care providers can be sued for alleged civil rights violations under section 1983 for medical treatment provided in a jail, they may be entitled to assert a “qualified immunity” defense. In other words, providers can defend these cases on the ground that, because they were acting like a government employee would, they are entitled to immunity for treatment provided. And if the defense is available, plaintiffs pursuing those claims must satisfy a heightened burden of proof. Bevill v. Fletcher, 26 F.4th 270, 275 (5th Cir. 2022). Generally, the qualified immunity defense is available if the provider’s “public counterpart” would be entitled to assert the defense. Perniciaro v. Lea, 901 F.3d 241 (5th Cir. 2018).
The U.S. Supreme Court has held that whether a private healthcare provider may assert the defense requires an analysis of “principles of tort immunities and defenses applicable at common law” as they existed in 1871 (when section 1983 was enacted), as well as “the purposes served by granting immunity.” Filarsky, 566 U.S. at 384. And the Fifth Circuit has held that privately employed physicians may assert a qualified immunity defense when sued for allegedly providing treatment below that required for prisoners under the Fourteenth Amendment. See, e.g., Perniciaro, 901 F.3d at 250 (psychiatrists employed by Tulane University entitled to assert qualified immunity defense).
Only when a private healthcare provider works for a large, private employer “systematically organized to assume a major lengthy administrative task” would a private provider not be entitled to assert the defense. For instance, in one case, the Fifth Circuit held that a prison social worker wasn’t entitled to assert the qualified immunity defense because she was employed by a large corporation specifically “in the business of administering correctional health care services.” Sanchez v. Oliver, 995 F.3d 461, 467 (5th Cir. 2021). So, if health care providers are employed by a large health care organization that regularly provides employees to jails, and those employees’ must follow their employer’s rules, they likely cannot assert a qualified immunity defense. On the other hand, a provider hired for a discrete purpose, and subject to the jail’s rules and procedures, likely can assert the defense.
What is a plaintiff’s burden when a health care provider asserts a qualified immunity defense?
Pretrial detainees have a constitutional right under the Due Process Clause of the Fourteenth Amendment to appropriate medical care. Stevenson-Cotton v. Galveston County, Texas, 2024 WL 138631, *3 (5th Cir., Jan. 12, 2024). To prove a violation of that constitutional right, plaintiffs must show that the health care provider acted with “deliberate indifference” to a detainee’s serious medical needs. Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir. 2001). But establishing deliberate indifference is “an extremely high standard to meet.” Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
To meet that standard, a plaintiff must show that (i) the provider was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists;” (ii) the provider “actually dr[ew] the inference;” and (iii) she failed to take reasonable measures to abate that risk. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
But unsuccessful medical treatment isn’t enough to establish deliberate indifference. Id. Only if a plaintiff shows that a provider refused to treat a detainee, ignored complaints, or intentionally treated a detainee incorrectly is deliberate indifference established. Id. Thus, when a provider evaluates a patient, devises a treatment plan, and addresses a detainee’s complaints, courts will reject deliberate indifference claims. Several recent cases from the Fifth Circuit do just that: affirm summary judgment in providers’ favor or reverse to grant it. See, e.g., Stevenson-Cotton, 2024 WL 138631 (5th Cir. 2024); Crandel v. Hall, 75 F.4th 537 (5th Cir. 2023); Hinton v. Harris County, Texas, 2022 WL 2752805 (5th Cir. 2022); Bonilla v. Orange County, Texas, 982 F.3d 298 (5th Cir. 2020).
For more than 50 years the U.S. Supreme Court has allowed public and private actors alike to assert qualified immunity defenses. But recently, the Court’s reasoning and its bases have been questioned. In the next installment of this series, we will discuss what those challenges are and whether they’re likely to affect qualified immunity jurisprudence going forward.
[1] This article focuses exclusively on the statutory federal claim under 42 U.S.C. § 1983, not the state law health care liability causes of action.
[2] “Jails” and “prisons” are different, and there are different standards governing claims by people in each facility. This article focuses on claims by people in jails—generally where pretrial detainees (as opposed to convicted prisoners) are held.