Last week, reversing Judge Woodcock, the First Circuit (Lipez,, J., with Judges Howard and Boudin on the panel) held that a claim by an inmate of the Maine State Prison raised a dispute of fact surviving a summary judgment motion against a physician assistant at the York County Jail under the Eight Amendment for cruel and unusual punishment when the jail allegedly withheld his medicine for HIV. Leavitt v. Correctional Medical Services, Inc. (CMS), http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1432P.01A
As the Court noted, to have an Eighth Amendment violation, there must be more than malpractice or negligence. The official must show 'deliberate indifference", meaning "an unnecessary and wanton infliction of pain' or action "repugnant to the conscience of mankind." There were factual disputes over what the physician's assistant did and why. The Court found that the plaintiff's version met the sj hurdle because, among other things, the jury could infer that the PA "had a financial interest in not confirming that the risk was imminent, and, hence, that [the plaintiff] required immediate treatment." The plaintiff alleged that the PA told the plaintiff that he wouldn't give him the HIV drugs because they were too costly. Moreover, the PA was the president of the corporation that provided contract healthcare services to inmates at the jail. The PA testified that the corporation had a two-year contract with the jail with the possibility of extensions and that the renewal of the contract depended on keeping the jail 'happy," and that the corporation lost the contract to another service because of the "cost savings" that the latter "apparently provided." The PA had also been admonished by the state medical licensing authorities for witholding medications from a patient with a chronic health condicition "without appropriate evaluation" and "with no clear reason that the paitent could not receive them." He also changed the frequency of dosage of medication for another patient from 4 to 2 times a day becuase the jail contracted for staff to distribute medications only twice a day. "Furthermore, he provided medical care without a supervising physiciaion — a contractor for whom [the corporation] presumablt would have had to pay."
The issue of inmate credibility and when a dispute raises a factual issue is always thorny; the financial motivation addition here is the interesting twist. As medical services are outsourced, the nature of how contractors are chosen and paid can factor into these considerations — or at least be viewed as possibily doing so for sj purposes.