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Medical Malpractice Law & StrategyFeaturesLitigationLJN NewslettersMedical Malpractice

Institutional Deliberate Indifference

By Janice G. Inman

Prisoner Eighth Amendment allegations of cruel and unusual punishment due to deliberate indifference to their medical needs are common; most of them go nowhere. No matter the incompetence of the medical care provided, it is hard for a prisoner to prove (particularly when appearing pro se, as is common) that a care provider acted with intentional knowing recklessness as to his health, as this requires a showing of the provider's actual knowledge of a serious risk. Generally, any prison-setting medical care mistake or issue must be addressed in state court as a regular medical malpractice claim, not as a violation of a prisoner's Constitutional rights.

Once in a while, though, the care provided to a prisoner is so substandard that the case actually hurdles the defendants' motion for summary judgment and makes it to trial. A recent such case — Glisson v. Indiana Dept. of Correction, 2017 U.S. App. LEXIS 3101 (7th Cir., 2/21/17) — not only beat the normal odds, but also presented a rare way of looking at deliberate indifference: In Glisson, it isn't the actions of the individual doctors and nurses that will be in the spotlight come trial time, but the workings of the medical system that employed them.

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