Prison Litigation Consulting for Attorneys
Cases involving correctional health care and in-custody deaths are extremely difficult to make. Not only is the law stacked against the inmate, but most institutions go to great lengths to insulate themselves from § 1983 liability – the most common of which is to contract with a private company to provide health care. More often than not, institutional personnel will claim qualified immunity and point the finger at the contract health care provider. A single misstep means your client’s rights will never be vindicated.
In order to survive an initial motion to dismiss for failure to state a claim, which is a typical first line defense, a practitioner must draft an adequate complaint and determine whether to file it in state or federal court. The importance of drafting an adequate complaint that incorporates both federal and supplemental state law claims cannot be overstated. An inadequately pled complaint will result in either an outright dismissal of the entire case or, at best, proceed against a single doctor or nurse.
Respondeat superior is not recognized in a deliberate indifference action, nor, for that matter are negligence and medical malpractice. A complaint that proceeds on any of those theories is doomed to fail before it’s even filed. An adequately pled complaint – and the discovery requests that follow – cannot be drafted from forms in a practice guide. They require specialized expertise in both highly nuanced areas of the law, including deliberate indifference and qualified immunity, and correctional health care delivery.
Drafting an adequate complaint and discovery requests also require a thorough understanding of institutional policies and procedures, contract health care provider policies and procedures, and the interconnected application of the two in a correctional setting. Although the specific provisions of both sets of policies and procedures – institutional and medical – vary from institution to institution, make no mistake, their development, function, and implementation, are what drive a § 1983 claim.
Most § 1983 deliberate indifference cases also contemplate, to some degree or another, the application of national correctional health care standards, contract monitoring, site audits, evaluation of contract medical/nursing personnel, medical records and charting, nursing protocols, clinical pathways, clinical oversight of contract medical/nursing personnel, training requirements and records, credentialing, utilization management, and peer review – just to name a few. If it sounds daunting, it’s because it is.
We can help. For the last twenty-three years, we’ve been in the trenches helping attorneys fight for those who have either been injured or whose loved ones have died while incarcerated because they didn’t receive adequate medical care. As litigation consultants, we’ve reviewed cases nationwide, collected and analyzed documentation, and assisted with the preparation of all manner of pleadings and discovery requests on cases ranging from non-lethal injuries to egregious in-custody deaths.
The bottom line is this: institutional health care is an industry. We know how the industry works – who the state actors and private players are, how they interact, how they insulate themselves, and what an attorney needs to do to get a plaintiff their day in court. We do what we do because we believe the system is broken and that policymakers and institutional health care providers can, and should, be held accountable. Inmates don’t shed their constitutional rights at the prison gate.