Medical-Legal Issues in HIV Treatment: Part 2
Medical-Legal Issues in HIV Treatment: Part 2
Medical practitioners and institutions face frequent challenges when treating HIV-positive patients. These challenges are exacerbated when, as is often the case, the patient is also an inmate in a correctional facility. While exposure to liability because of alleged malpractice is a reality of modern medical practice, health care providers and institutions involved in the treatment of prison inmates also face exposure to liability based on alleged constitutional violations. Indeed, an alleged federal constitutional violation, rather than a traditional negligence claim, forms the gravamen of the vast majority of lawsuits brought by HIV-positive inmates. An inmate who successfully proves a constitutional claim may also recover attorney's fees under the Federal Equal Access to Justice Act, which may explain the propensity of inmates and/or their attorneys to pursue these claims.
The purpose of this column is to educate health care professionals who practice in a correctional setting about the legal standards that govern constitutional claims and to provide practical advice for minimizing potential exposure to such claims.
Section 1983 of the Civil Rights Act of 1964 creates a civil cause of action against a party who, while acting under color of state law, deprives any person of any right, privilege, or immunity secured by the Constitution and laws of the United States. Because most prison systems are operated by, or for the benefit of, a governmental unit, it is fairly easy for an inmate to establish that the health care provider who has been charged with treating inmates is someone who is operating under color of state law. The US Supreme Court has also held that a private physician who contracts to provide medical services to a correctional facility acts under color of state law, thus subjecting the physician to liability under Section 1983.
Obviously, there are many rights, privileges, and immunities guaranteed by the Constitution and laws of the United States; however, it is the Eighth Amendment prohibition against cruel and unusual punishment that is most often cited by HIV-positive inmates bringing suit against their health care providers. The essence of the claim is that the actions of the medical professional in
either the treatment given or the treatment refused
were so egregious as to be considered cruel and unusual punishment.
To successfully maintain a 1983 action, the inmate must prove more than the simple negligence required in a traditional medical malpractice claim. Rather, it must be proved that the provider exhibited a "deliberate indifference to serious medical needs."* This standard has 2 distinct elements, each of which must be proved: (1) that the prisoner's medical need was in fact serious and (2) that the health care provider demonstrated a deliberate indifference to that need.
An HIV-positive patient will almost always be able to establish that he or she had a serious medical need, because AIDS is a potentially fatal disease. In fact, some courts have held that a prisoner being treated for an HIV-related condition is presumed, as a matter of law, to have a serious medical need. The prudent medical practitioner should thus assume that his or her decisions with respect to medical care for HIV-positive inmates will at least initially be subjected to a close level of scrutiny. However, the "deliberate indifference" standard established by the courts generally has been held to require that the prisoner prove that the provider was subjectively aware of the serious medical need and deliberately displayed indifference to that need. Disagreements as to the adequacy of treatment typically do not give rise to liability in a Section 1983 action, because the courts are reluctant to second-guess the medical judgments of health care providers.
Practitioners looking to minimize their exposure to 1983 claims should adopt the practice of consistently taking some action in response to the medical complaints of an HIV-positive inmate, precisely because the courts are reluctant to substitute their own judgment as to what may or may not have constituted a proper medical response. If no action is taken in regard to a complaint, there is a more significant risk that the practitioner will be found to have exhibited the deliberate indifference that gives rise to liability.
One specific area that gives rise to potential liability for Section 1983 violations involves testing for HIV status. When an inmate provides a medical history of behavior that places him at risk for exposure to the virus or presents with clinical signs that suggest the presence of an infection, the decision to test for HIV is relatively simple and should be made as a matter of course.
A more problematic situation arises when the inmate demands to be tested for HIV but provides no behavioral history that would suggest that he may have been infected and displays no clinical signs of infection. If the physician fails or refuses to order the test and the inmate is later determined to be HIV-positive, the issue arises as to whether the physician acted with "deliberate indifference." At least 1 court has answered this question in the negative and found that an inmate has no absolute constitutional right to demand an HIV test regardless of circumstances. Moreover, a correctional institution's policy regarding testing may provide additional protection against liability for both the institution and its health care professionals. A policy prohibiting HIV screening absent an inmate (1) presenting with clinical symptoms consistent with an infection, (2) providing a presumptive history of exposure to HIV, or (3) in the case of a pregnant inmate, reporting a history of injection drug use, prostitution, or sexual activity with an injection drug user has been found not to constitute deliberate indifference to serious medical needs.
Difficulties may arise for the practitioner who refuses to administer an HIV test because the inmate is asymptomatic and has not given a history that would suggest exposure to the virus but who nonetheless is HIV-positive. In a lawsuit filed by this inmate, he may untruthfully claim that the appropriate information was given to the medical professional. The prudent practitioner will take a comprehensive history from every patient and chart it in detail to insulate himself from this potential liability.
There has been at least 1 reported decision wherein a court has held that a provider's failure to administer an HIV test created an issue of whether that failure constituted a deliberate indifference to a serious medical need. In Maynard v New Jersey,an inmate died just 5 months after being incarcerated. Throughout his stay in prison, he had complained of a persistent lack of energy, cough, sore throat, body aches, difficulty in swallowing, diarrhea, and red patches on his pharynx. No HIV tests were ordered at any time during his incarceration; rather, acetaminophen and sore throat lozenges were prescribed. Twelve days before his death, he collapsed and was sent to the prison infirmary. However, even at that point the same protocol of acetaminophen and lozenges was continued, despite a demand for different treatment from the prisoner's parents. In its decision, the court noted that despite the traditional reluctance to have the judiciary substitute its judgment for medical decisions made by a trained prison medical staff, it is nonetheless possible to infer deliberate indifference in a situation such as this where the practitioners involved consistently opted for easier and less efficacious treatment at the inmate's expense.
A related testing issue faced by correctional institutions and their medical staffs involves nonconsensual HIV testing. Such testing is permitted when based on a history of exposure to the virus and/or clinical signs of infection but has been found to violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution when based simply on sexual orientation. The prudent medical professional should be reluctant to order a nonconsensual HIV test under any circumstances, but if he or she does, once again a detailed history and chart are essential for providing adequate documentation of the reasons the test was ordered.
Courts have also grappled with the constitutionality of correctional policies that establish mandatory HIV screening for all inmates. Equal protection issues are not implicated by such policies as long as all inmates receive equal treatment regardless of sexual orientation. Nonetheless, there currently exists a split among the United States Circuit Courts of Appeal as to the constitutionality of mandatory HIV screening. It must be noted, however, that even those courts that have restricted a penal institution's right to conduct mandatory HIV screening have indicated that such screening would be permissible if the institutions were able to demonstrate that the screening tests were related to a legitimate penological interest. Although the right to restrict the constitutional rights of prisoners is not absolute, such restrictions traditionally have been upheld if prison officials can demonstrate a connection between the restriction being challenged and the legitimate correctional goal of maintaining prison security.
Another significant source of litigation brought by inmates against their medical providers arises from medication issues. An example of these claims would be an allegation by an inmate that specific AIDS medications were requested but not provided or were provided in such a delayed and/or sporadic fashion that the inmate's health was compromised. Claims such as these often arise when an HIV-infected person has just been arrested and is being held in a predetention facility. Typically, no one at the facility is familiar with the patient's medical history, but the patient advises the correctional staff of his HIV status and requests the particular medication he is allegedly currently taking. Case law suggests that a delay of even several days in providing the requested medication exposes the institution and its medical personnel to liability.
The McNally v Prison Health Services decision provides some guidance to the practitioner in resolving some of these issues. In that case, Mr McNally, who was HIV-infected, was arrested in his home and held in pretrial confinement for 3 days before his release on bail. At the time he was arrested, he was receiving treatment from a physician who had prescribed an antiretroviral regimen for him, but he had not taken his medications on the day he was arrested. Because of an earlier arrest, his HIV status and his antiretroviral regimen were on file with the jail and Prison Health Services (PHS).
PHS and the jail where McNally was confined both had general policies for providing medications to detainees. One policy provided that any recently arrived prisoner who was taking medication should be provided with either the same medication or a reasonable substitute, and these medications were typically made available within 24 hours. Further, under this policy, it was also permissible for an inmate to have someone retrieve his medication and bring it to the jail.
A different policy, however, was applicable when the prisoner was HIV-positive and had missed 1 or more doses of antiretroviral medications before arriving at the jail. In that case, an AIDS Consultation Service at a local medical center was contacted to determine whether medications should be restarted or whether a viral load test should first be performed. In McNally v Prison Health Services the nurses who initially evaluated the prisoner testified that the AIDS Consultation Service advised them to do a viral load test before administering any antiretrovirals. Since this test was not performed before McNally's release on bail, he did not receive any antiretrovirals during that detention.
McNally brought suit alleging that his health had been compromised by the failure to provide antiretrovirals during his brief detention. His private physician testified that there was no need to perform the viral load testing and that the interruption of the medication may have compromised his health. In addition, the AIDS Consultation Service denied that it would have advised that viral load be determined under these circumstances. The court found that McNally had produced enough evidence from which a reasonable jury might find that his serious medical needs had been met with deliberate indifference. The disputed and unclear facts of this case, which exposed the health care providers at the detention center to liability, emphasize the importance of documentation of the medical record. All prudent providers involved, even in an ancillary way, with an HIV-positive inmate's health care should fully document discussions with outside services and/or other parties to substantiate the reasons for refusing to supply requested medications, especially antiretrovirals.
Obviously, most cases are decided on their particular set of facts, and broad and sweeping rules of law cannot be gleaned from any particular case. It should, however, be noted that the occasional failure to provide medication or the administration of an incorrect dose is much less likely to be found to constitute a form of cruel and unusual punishment than is a pattern or practice of engaging in that same behavior.
Medical providers in correctional facilities often encounter situations where the patient takes issue with the medication provided and demands a different one. Generally, these claims are dismissed, because the courts refuse to involve themselves in what are essentially disputes over the appropriateness of varying medications. A departure from this pattern can be found in Macomber v Davis, in which an inmate challenged the physician's refusal to prescribe acetaminophen/oxycodone to control the headaches he alleged were caused by his zidovudine and which allegedly prevented the prisoner from taking his medication as frequently as he should have. The court refused to dismiss the constitutional claim and held that if the prisoner could establish that the physician refused to prescribe acetaminophen/oxycodone and also refused to prescribe a substitute painkiller, then a jury might reasonably conclude that the physician displayed a deliberate indifference to the prisoner's serious medical needs. The critical distinguishing factor in Macomber v Davis is the physician's refusal to prescribe any medication, as opposed to a dispute over the most appropriate or efficacious medication.
The principles outlined in this column are general legal principles designed to provide some guidance to health care professionals practicing in penal institutions to reduce their exposure to liability for constitutional claims asserted against them by their HIV-positive patients. Because the law varies somewhat from jurisdiction to jurisdiction, a local attorney should be consulted for advice on the law in a particular jurisdiction.
This is the second column in a continuing series on medical-legal issues in HIV. The first part appeared in April 2001 (AIDS Reader. 2001;11:182-190).
Medical practitioners and institutions face frequent challenges when treating HIV-positive patients. These challenges are exacerbated when, as is often the case, the patient is also an inmate in a correctional facility. While exposure to liability because of alleged malpractice is a reality of modern medical practice, health care providers and institutions involved in the treatment of prison inmates also face exposure to liability based on alleged constitutional violations. Indeed, an alleged federal constitutional violation, rather than a traditional negligence claim, forms the gravamen of the vast majority of lawsuits brought by HIV-positive inmates. An inmate who successfully proves a constitutional claim may also recover attorney's fees under the Federal Equal Access to Justice Act, which may explain the propensity of inmates and/or their attorneys to pursue these claims.
The purpose of this column is to educate health care professionals who practice in a correctional setting about the legal standards that govern constitutional claims and to provide practical advice for minimizing potential exposure to such claims.
Section 1983 of the Civil Rights Act of 1964 creates a civil cause of action against a party who, while acting under color of state law, deprives any person of any right, privilege, or immunity secured by the Constitution and laws of the United States. Because most prison systems are operated by, or for the benefit of, a governmental unit, it is fairly easy for an inmate to establish that the health care provider who has been charged with treating inmates is someone who is operating under color of state law. The US Supreme Court has also held that a private physician who contracts to provide medical services to a correctional facility acts under color of state law, thus subjecting the physician to liability under Section 1983.
Obviously, there are many rights, privileges, and immunities guaranteed by the Constitution and laws of the United States; however, it is the Eighth Amendment prohibition against cruel and unusual punishment that is most often cited by HIV-positive inmates bringing suit against their health care providers. The essence of the claim is that the actions of the medical professional in
either the treatment given or the treatment refused
were so egregious as to be considered cruel and unusual punishment.
To successfully maintain a 1983 action, the inmate must prove more than the simple negligence required in a traditional medical malpractice claim. Rather, it must be proved that the provider exhibited a "deliberate indifference to serious medical needs."* This standard has 2 distinct elements, each of which must be proved: (1) that the prisoner's medical need was in fact serious and (2) that the health care provider demonstrated a deliberate indifference to that need.
An HIV-positive patient will almost always be able to establish that he or she had a serious medical need, because AIDS is a potentially fatal disease. In fact, some courts have held that a prisoner being treated for an HIV-related condition is presumed, as a matter of law, to have a serious medical need. The prudent medical practitioner should thus assume that his or her decisions with respect to medical care for HIV-positive inmates will at least initially be subjected to a close level of scrutiny. However, the "deliberate indifference" standard established by the courts generally has been held to require that the prisoner prove that the provider was subjectively aware of the serious medical need and deliberately displayed indifference to that need. Disagreements as to the adequacy of treatment typically do not give rise to liability in a Section 1983 action, because the courts are reluctant to second-guess the medical judgments of health care providers.
Practitioners looking to minimize their exposure to 1983 claims should adopt the practice of consistently taking some action in response to the medical complaints of an HIV-positive inmate, precisely because the courts are reluctant to substitute their own judgment as to what may or may not have constituted a proper medical response. If no action is taken in regard to a complaint, there is a more significant risk that the practitioner will be found to have exhibited the deliberate indifference that gives rise to liability.
One specific area that gives rise to potential liability for Section 1983 violations involves testing for HIV status. When an inmate provides a medical history of behavior that places him at risk for exposure to the virus or presents with clinical signs that suggest the presence of an infection, the decision to test for HIV is relatively simple and should be made as a matter of course.
A more problematic situation arises when the inmate demands to be tested for HIV but provides no behavioral history that would suggest that he may have been infected and displays no clinical signs of infection. If the physician fails or refuses to order the test and the inmate is later determined to be HIV-positive, the issue arises as to whether the physician acted with "deliberate indifference." At least 1 court has answered this question in the negative and found that an inmate has no absolute constitutional right to demand an HIV test regardless of circumstances. Moreover, a correctional institution's policy regarding testing may provide additional protection against liability for both the institution and its health care professionals. A policy prohibiting HIV screening absent an inmate (1) presenting with clinical symptoms consistent with an infection, (2) providing a presumptive history of exposure to HIV, or (3) in the case of a pregnant inmate, reporting a history of injection drug use, prostitution, or sexual activity with an injection drug user has been found not to constitute deliberate indifference to serious medical needs.
Difficulties may arise for the practitioner who refuses to administer an HIV test because the inmate is asymptomatic and has not given a history that would suggest exposure to the virus but who nonetheless is HIV-positive. In a lawsuit filed by this inmate, he may untruthfully claim that the appropriate information was given to the medical professional. The prudent practitioner will take a comprehensive history from every patient and chart it in detail to insulate himself from this potential liability.
There has been at least 1 reported decision wherein a court has held that a provider's failure to administer an HIV test created an issue of whether that failure constituted a deliberate indifference to a serious medical need. In Maynard v New Jersey,an inmate died just 5 months after being incarcerated. Throughout his stay in prison, he had complained of a persistent lack of energy, cough, sore throat, body aches, difficulty in swallowing, diarrhea, and red patches on his pharynx. No HIV tests were ordered at any time during his incarceration; rather, acetaminophen and sore throat lozenges were prescribed. Twelve days before his death, he collapsed and was sent to the prison infirmary. However, even at that point the same protocol of acetaminophen and lozenges was continued, despite a demand for different treatment from the prisoner's parents. In its decision, the court noted that despite the traditional reluctance to have the judiciary substitute its judgment for medical decisions made by a trained prison medical staff, it is nonetheless possible to infer deliberate indifference in a situation such as this where the practitioners involved consistently opted for easier and less efficacious treatment at the inmate's expense.
A related testing issue faced by correctional institutions and their medical staffs involves nonconsensual HIV testing. Such testing is permitted when based on a history of exposure to the virus and/or clinical signs of infection but has been found to violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution when based simply on sexual orientation. The prudent medical professional should be reluctant to order a nonconsensual HIV test under any circumstances, but if he or she does, once again a detailed history and chart are essential for providing adequate documentation of the reasons the test was ordered.
Courts have also grappled with the constitutionality of correctional policies that establish mandatory HIV screening for all inmates. Equal protection issues are not implicated by such policies as long as all inmates receive equal treatment regardless of sexual orientation. Nonetheless, there currently exists a split among the United States Circuit Courts of Appeal as to the constitutionality of mandatory HIV screening. It must be noted, however, that even those courts that have restricted a penal institution's right to conduct mandatory HIV screening have indicated that such screening would be permissible if the institutions were able to demonstrate that the screening tests were related to a legitimate penological interest. Although the right to restrict the constitutional rights of prisoners is not absolute, such restrictions traditionally have been upheld if prison officials can demonstrate a connection between the restriction being challenged and the legitimate correctional goal of maintaining prison security.
Another significant source of litigation brought by inmates against their medical providers arises from medication issues. An example of these claims would be an allegation by an inmate that specific AIDS medications were requested but not provided or were provided in such a delayed and/or sporadic fashion that the inmate's health was compromised. Claims such as these often arise when an HIV-infected person has just been arrested and is being held in a predetention facility. Typically, no one at the facility is familiar with the patient's medical history, but the patient advises the correctional staff of his HIV status and requests the particular medication he is allegedly currently taking. Case law suggests that a delay of even several days in providing the requested medication exposes the institution and its medical personnel to liability.
The McNally v Prison Health Services decision provides some guidance to the practitioner in resolving some of these issues. In that case, Mr McNally, who was HIV-infected, was arrested in his home and held in pretrial confinement for 3 days before his release on bail. At the time he was arrested, he was receiving treatment from a physician who had prescribed an antiretroviral regimen for him, but he had not taken his medications on the day he was arrested. Because of an earlier arrest, his HIV status and his antiretroviral regimen were on file with the jail and Prison Health Services (PHS).
PHS and the jail where McNally was confined both had general policies for providing medications to detainees. One policy provided that any recently arrived prisoner who was taking medication should be provided with either the same medication or a reasonable substitute, and these medications were typically made available within 24 hours. Further, under this policy, it was also permissible for an inmate to have someone retrieve his medication and bring it to the jail.
A different policy, however, was applicable when the prisoner was HIV-positive and had missed 1 or more doses of antiretroviral medications before arriving at the jail. In that case, an AIDS Consultation Service at a local medical center was contacted to determine whether medications should be restarted or whether a viral load test should first be performed. In McNally v Prison Health Services the nurses who initially evaluated the prisoner testified that the AIDS Consultation Service advised them to do a viral load test before administering any antiretrovirals. Since this test was not performed before McNally's release on bail, he did not receive any antiretrovirals during that detention.
McNally brought suit alleging that his health had been compromised by the failure to provide antiretrovirals during his brief detention. His private physician testified that there was no need to perform the viral load testing and that the interruption of the medication may have compromised his health. In addition, the AIDS Consultation Service denied that it would have advised that viral load be determined under these circumstances. The court found that McNally had produced enough evidence from which a reasonable jury might find that his serious medical needs had been met with deliberate indifference. The disputed and unclear facts of this case, which exposed the health care providers at the detention center to liability, emphasize the importance of documentation of the medical record. All prudent providers involved, even in an ancillary way, with an HIV-positive inmate's health care should fully document discussions with outside services and/or other parties to substantiate the reasons for refusing to supply requested medications, especially antiretrovirals.
Obviously, most cases are decided on their particular set of facts, and broad and sweeping rules of law cannot be gleaned from any particular case. It should, however, be noted that the occasional failure to provide medication or the administration of an incorrect dose is much less likely to be found to constitute a form of cruel and unusual punishment than is a pattern or practice of engaging in that same behavior.
Medical providers in correctional facilities often encounter situations where the patient takes issue with the medication provided and demands a different one. Generally, these claims are dismissed, because the courts refuse to involve themselves in what are essentially disputes over the appropriateness of varying medications. A departure from this pattern can be found in Macomber v Davis, in which an inmate challenged the physician's refusal to prescribe acetaminophen/oxycodone to control the headaches he alleged were caused by his zidovudine and which allegedly prevented the prisoner from taking his medication as frequently as he should have. The court refused to dismiss the constitutional claim and held that if the prisoner could establish that the physician refused to prescribe acetaminophen/oxycodone and also refused to prescribe a substitute painkiller, then a jury might reasonably conclude that the physician displayed a deliberate indifference to the prisoner's serious medical needs. The critical distinguishing factor in Macomber v Davis is the physician's refusal to prescribe any medication, as opposed to a dispute over the most appropriate or efficacious medication.
The principles outlined in this column are general legal principles designed to provide some guidance to health care professionals practicing in penal institutions to reduce their exposure to liability for constitutional claims asserted against them by their HIV-positive patients. Because the law varies somewhat from jurisdiction to jurisdiction, a local attorney should be consulted for advice on the law in a particular jurisdiction.
This is the second column in a continuing series on medical-legal issues in HIV. The first part appeared in April 2001 (AIDS Reader. 2001;11:182-190).
| * | See Estelle v Gamble, 429 US 97, 106 (1976), wherein the US Supreme Court held that "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." |
| | Compare Harris v Thigpen, 27 F Supp 1564 (MD Ala 1990), judgment affirmed in part, vacated in part on other grounds, 941 F2nd 1495 (11th Cir 1991) (holding the constitutionality of nonconsensual HIV screening of all prisoners within a prison) with Walker v Sumner, 917 F2nd 382 (9th Cir 1990) appeal after remand 8 F3d 33 (9th Cir 1993) (prison's motion for summary judgment denied in a prisoner's action to recover a nonconsensual blood draw for HIV screening purposes). |