Introduction

Strange, but true -- in America, only the incarcerated have a legal right to healthcare. This right stems from early recognition by the courts that, "the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself." Spicer v. Williams, 191 N.C. 487 (1926). However, the Supreme Court did not formally recognize an inmate's constitutional right to healthcare until 1976, when the court established that "deliberate indifference to serious medical needs of prisoners" is a violation of the Eighth Amendment. This article discusses the Eighth Amendment right of incarcerated persons to medical care and examines that right in the context of inmates with HIV disease.

The Constitutional Basis of the Right

The right of the convicted inmate to medical care comes from the Eighth Amendment's prohibition on "cruel and unusual punishments." Although originally intended to prevent "tortures and other barbarous forms of punishment," the clause has been interpreted by the Supreme Court to include a right to medical treatment for convicted inmates that does not allow "wanton and willful infliction of pain."

Pre-trial detainees also have a right to healthcare, under the Fourteenth Amendment, which prohibits the government's denial of "life, liberty or property without due process of law." Although the pre and post-conviction rights come from separate constitutional provisions, the Supreme Court has never articulated the due process medical care standard, and the rights have been interpreted by the courts to require the same level of treatment. Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).

A Historic Case: Estelle V. Gamble (1976)

In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court addressed the medical needs of prisoners in the context of the Eighth Amendment.

The court held that deliberate indifference to serious medical needs is prohibited “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 or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a [claim under the Constitution.] Id. at 104-105."

Note that both providers and correctional officers might, according to this interpretation of the Eighth Amendment, be held to be responsible if an HIV-infected patient failed to receive their HIV medications. However, a prisoner must provide evidence of "acts or omissions sufficiently harmful" to show deliberate indifference in order to bring an Eighth Amendment claim.

Since Estelle, the Supreme Court has only refined the "deliberate indifference" standard once. In 1994 the Court said that deliberate indifference ". . . [lies] somewhere between the poles of negligence at one end and purpose or knowledge at the other,"(Farmer v. Brennan, 511 U.S. 825, 1994). The Court affirmed an "adequacy" standard stating that ". . . prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care . . ." (id. at 833), but went on to emphasize that "deliberate indifference" requires a culpable state of mind. Federal District Courts (the trial court in the Federal system) may interpret "adequate" with wide discretion. On appeal to the Federal Circuit Courts-the layer of the judiciary just below the US Supreme Court-this has led to vastly varying law, especially in regards to the treatment of HIV.

Recent Decisions in HIV Cases

Circuit Courts

The best way to find out how "deliberate indifference" is being interpreted in relation to HIV treatment in correctional settings is to look at recent court rulings. Only two circuit courts (the regional federal appellate courts directly below the Supreme Court) have considered treatment of HIV disease and the Eighth Amendment since the development of protease inhibitors, with drastically different results.

In Perkins v. Kansas Dept. of Corrections, 165 F.3d 803 (10th Cir. 1999) the patient/inmate challenged his HIV treatment which, in February 1998, consisted of AZT and 3TC, but not a protease inhibitor. The Tenth Circuit, while noting the patient's argument that "HIV will become immune to [AZT and 3TC] if he is not given a protease inhibitor," and footnoting the important role protease inhibitors play in the treatment of HIV disease, held " . . . prison officials have recognized his serious medical condition and are treating it. Plaintiff simply disagrees with medical staff about the treatment. This disagreement does not give rise to a claim for deliberate indifference to serious medical needs." Thus, despite good scientific data to the contrary that was available at the time, the Tenth Circuit held that denial of one component of combination therapy is simply a "disagreement" about appropriate treatment.

By contrast, the Ninth Circuit has held that denial of the full combination for two days creates a triable issue of whether the medical staff was "deliberately indifferent" to the patient/inmate's medical needs. Sullivan v. County of Pierce, 2000 U.S. App. LEXIS 8254 (9th Cir. 2000) In Sullivan, the patient/inmate did not receive his protease inhibitor because the jail pharmacy did not stock the medication, despite the fact that the medical staff testified that is was "common medical knowledge that an AIDS patient taking protease inhibitors as part of an AIDS cocktail had to remain in strict compliance with that regimen at all times and without exception lest that cocktail become ineffective." The Ninth Circuit said that, "[a]lthough jail physicians, like prison officials, enjoy wide discretion in determining what constitutes appropriate treatment, the treatment Sullivan received was far from the medical norm. . . . " Accordingly, the court concluded that the jail was guilty of deliberate indifference.

District Courts

Based on the written opinions of the last several years, district court judges appear to be more willing to let HIV treatment-related claims go forward to trial, by no means guaranteeing victory, but allowing inmate/patients to have their claims heard by a jury. With two such polar opinions by the Circuit Courts, it is no wonder that District Courts are not uniform in their approach to HIV care. For instance, one Maine court held that three days in a jail without medications was sufficient cause for a jury to decide whether that was deliberate indifference (McNally v. Prison Health Services, 46 F.Supp.2d 49. Dist. Ct. Maine, 1999). A Virginia District Court held likewise when an inmate's medications were changed without his notification and he suffered side effects (Taylor v. Barnett, 105 F.Supp2d 483. E.Dist. Va. 2000). An Illinois case is particularly notable because of the inmate's persistence in requesting medications. After notifying repeatedly that she needed HIV medications, yet going without them for two weeks, the inmate was found comatose in her cell. In that case, the court held that the medical staff was not deliberately indifferent, and the claim was denied (Rivera v Sheehan 1998 US District LEXIS 12880 N. Dist Ill 1998).

On the other hand, a New York Federal Court this year held that a Spanish-speaking only inmate, who missed his medications because the instructions to pick up his medications were printed in English, did not suffer deliberate indifference even though it resulted in a worsening of his condition (Leon v. Johnson, 96 F. Supp. 2d 244. WDNY 2000). Earlier, in 1997, in New York the court held the prison system was not deliberately indifferent when an inmate was off medications for a period of a week during transport between facilities. Again, these decisions may have turned on whether or not the providers of medication had a "culpable state of mind." As knowledge of HIV management becomes more widespread, court rulings on events such as those described in this paragraph may evolve (Nolley v. Johnson, 1997 U.S. Dist. LEXIS 17651. S.D.N.Y. 1997).

No Resolution: Alabama and The Supreme Court

One reason the Supreme Court takes cases is to settle differing opinions of Federal Circuit Courts of Appeals. It has not done so in this area. A district court judge in the Eleventh Circuit recently held that prison officials could not be held liable for damages for a delay in delivering HIV medications of three or four days. Edwards v. Alabama Dept. of Corrections, 81 F. Supp. 2d 1242 (Mid. Dist Ala. 2000). That court's decision was based in large part on the controlling precedent set by the Eleventh Circuit on facts developed ten years earlier in Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991). In the late 1980s, when the treatment of HIV disease was dramatically different the Eleventh Circuit held that the care for HIV in Alabama, although poor, was adequate for Alabama prisoners because of the changing nature of the treatment of the disease and poor state of health care available to the non-incarcerated in Alabama.

Thus, the district court in Edwards, was forced to conclude that prison officials could not be held liable for damages due to the final rulings in the Harris case. Under a legal defense called "qualified immunity" state actors are immune from liability for their discretionary acts unless they violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Therefore, based on the Eleventh Circuit's 1987 decision in Harris - the Alabama DOC could reasonably believe they were, and are, operating a constitutionally adequate medical system, and are not liable for damages.

Conclusion

By no means a black and white rule, the "deliberate indifference" standard of Eighth Amendment jurisprudence gives judges wide latitude to determine the standard of medical care owed to incarcerated individuals, and, unfortunately, leaves correctional medical providers and inmate/patients without strict guidance.

Due to the fast pace at which HIV treatment changes, it is particularly difficult to determine what constitutes "deliberate indifference" in this area. Some courts are satisfied if inmates have access to some HIV care, even if out of date; others will examine a doctor's decision to change an individual inmate/patient's medical regimen. The Supreme Court is unlikely to resolve the divergence of opinions that currently exist among lower courts anytime in the near future. Since judicial process has thus far failed to provide a clear standard regarding the management of HIV disease in correctional settings, decisions regarding care remain largely in the hands of medical care providers who care for the incarcerated patient.

References:

*Consultant: Agouron Pharmaceuticals, Bristol- Myers Squibb

Speaker’s Bureau: Agouron Pharmaceuticals, Bristol- Myers Squibb

2000-1110
HEPP2000-1101

©1997,1998,1999,2000. The recently formed HIV Education Prison Project (HEPP) is a medical education program that targets a growing population, inmates in correctional facilities, that has been underserved in HIV care. It is part of the Brown University AIDS Program. Permission to use and reproduce portions of this newsletter is hereby granted provided that author and publication are fully credited and both copyright and permission notice appear with reprinted material. Inquiries may be directed to heppnews@brown.edu. Website: HIV Education Prison Project.

ÆGiS is made possible through unrestricted grants from Boehringer Ingelheim, Elton John AIDS Foundation, iMetrikus, Inc., the National Library of Medicine, and donations from users like you. Always watch for outdated information. This article first appeared in 2000. This material is designed to support, not replace, the relationship that exists between you and your doctor.

ÆGiS presents published material, reprinted with permission and neither endorses nor opposes any material. All information contained on this website, including information relating to health conditions, products, and treatments, is for informational purposes only. It is often presented in summary or aggregate form. It is not meant to be a substitute for the advice provided by your own physician or other medical professionals. Always discuss treatment options with a doctor who specializes in treating HIV.

Copyright ©1990, 2000. ÆGiS & the Sisters of Saint Elizabeth of Hungary. All materials appearing on ÆGiS are protected by copyright as a collective work or compilation under U.S. copyright and other laws and are the property of ÆGIS and the Sisters of Saint. Elizabeth of Hungary, or the party credited as the provider of the content.