American Journal of Law & Medicine

The Estelle medical professional judgment standard: the right of those in state custody to receive high-cost medical treatments.

This Article discusses the rights of prisoners, pretrial detainees, and the involuntarily committed to receive high-cost medical treatments. More specifically, the Article analyzes U.S. Supreme Court and lower court case law dealing with the medical care rights of those in state custody and argues that, under a proper understanding of this case law, the financial considerations of states should play no role in determining the rights of these people to receive high-cost medical care. Finally, the Article defends the current medical care standard against various critiques.

I. INTRODUCTION

According to current constitutional jurisprudence, the Eighth Amendment requires states(1) to provide a certain level of medical care to prisoners, while the Due Process Clause guarantees medical care to pretrial detainees and to the involuntarily committed.(2) The cost of medical services, however, has risen at a tremendous rate in the recent past and will continue to increase in the future.(3) Additionally, individual states, as well as the federal government, now face larger budgetary problems than they have in some time.(4) These two factors -- increasing medical costs and shrinking governmental financial resources -- combine to exert pressure on the states to decrease the medical services delivered to prisoners, pretrial detainees, and the involuntarily committed.

This pressure was recently apparent in Pennsylvania. State doctors determined that a large number of psychiatrically disturbed persons in Pennsylvania's state hospitals might benefit if given clozapine as part of their psychiatric treatment.(5) Clozapine, however, while considered a very efficacious drug for certain psychiatric conditions, is also very expensive when administered to a large population.(6) The State balked at giving clozapine to all those whom the prescribing physicians thought might benefit from it, basing its refusal on the high cost of the treatment.(7)

This Article discusses the state's ability to consider the costs of treatment when providing services to those whom it has confined. Part II explains the current Eighth Amendment right to medical care for prisoners as defined by the U.S. Supreme Court and the lower federal courts. It shows that a majority of courts hold that cost considerations have no place in determining the level of care to which prisoners are entitled. Part III analyzes the rights of pretrial detainees and the involuntarily committed to medical care in relation to prisoners' medical care rights. It argues that, case law notwithstanding, prisoners should be entitled to the same level of medical care as pretrial detainees and the involuntarily committed. Part IV responds to those cases that hold or imply that costs of treatment can be considered in fixing the Eighth Amendment medical care standard. It distinguishes the cases on their facts and shows their inconsistency with Supreme Court precedent. Lastly, Part V examines three critiques of the current medical care standard, defends the standard against two of the critiques, and suggests a modification of the standard based on the third critique.

II. THE EIGHT AMENDMENT MEDICAL CARE RIGHT

Originally, the Eighth Amendment(8) was neither intended nor interpreted to require the state to provide medical care to prisoners. Rather, the Amendment, like its conceptual and linguistic predecessor, the English Bill of Rights of 1689, was designed as a protection against torture and other barbarous methods of punishment.(9) Beginning in the early part of this century, however, the Supreme Court began to give the Amendment a broader interpretation.(10) Then, in 1958, the Court stated that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of maturing society" and that "the basic concept underlying the Eighth Amendment is nothing less than the dignity of man."(11)

Subsequently, in Estelle v. Gamble,(12) the Supreme Court held that the Eighth Amendment required the federal government and, through the Fourteenth Amendment, the states(13) to provide medical care to prisoners.(14) The Court recognized that the state is usually under no affirmative duty to provide medical care, but accepted the common law principle that "it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.'"(15)

In fashioning a specific standard to determine the medical care obligation, the Estelle Court applied a two-pronged test. This test, which is the current constitutional standard, holds that prisoners' Eighth Amendment right to medical care is violated if: (1) prison officials manifest "deliberate indifference" to prisoners' medical needs (the "deliberate indifference" prong);(16) and (2) those medical needs are "serious" (the "serious medical needs" prong).(17) By its very terms, this test exclude negligence on the part of prison officials and "deliberate indifference" to medical needs that fall short of being "serious."(18) The Court concluded that only state action that ran afoul of this two-pronged test would "offend 'evolving standards of decency' in violation of the Eighth Amendment."(19)

Two observations regarding the Estelle test are in order. First, the general requirement that the state provide medical care to its prisoners, and the Estelle "deliberate indifference to serious medical needs" standard in particular, are generally in line with Eighth Amendment jurisprudence outside the medical care area both prior to and since Estelle. For example, just prior to Estelle, the Court in Gregg v. Georgia(20) proscribed punishments that would "involve the unnecessary and wanton infliction of pain."(21) Since not delivering needed medical care can result in pain that is unnecessary because it serves no valid penological purpose,(22) and because "wanton conduct" denotes reckless or indifferent conduct as opposed to negligent behavior,(23) the holdings in Estelle and Gregg appear consistent. Moreover, subsequent to Estelle, the Court applied the "deliberate indifference" requirement in determining whether conditions of confinement violated the Eighth Amendment and stated that such conditions must be "sufficiently grave."(24)

Second, the holding in Estelle partially accord with the duties the common law placed on jailors. At common law, a jailor was responsible for providing medical care to prisoners under his control.(25) In addition, the mens rea requirement imposed by the common law on the sheriff or jailor for a viable denial of a medical care claim was usually at least as favorable, if not more favorable (from the perspective of the prisoner), as Estelle's "deliberate indifference" requirement. For instance, a number of courts seem to have held that, at common law, mere negligence on the part of a jailor was actionable.(26)

AN INTERPRETATION OF ESTELLE: THE MEDICAL PROFESSIONAL JUDGEMENT STANDARD

Once the doctor has become involved in the treatment process (by actually prescribing treatment or by the state's attempt to influence the doctor before she prescribes), the two-pronged Estelle test gives great deference to the doctor's medical opinions.(27) The "serious medical needs" prong indicates deference to the practitioner's judgment since the courts generally consider medical needs serious when a doctor has diagnosed them as such, or when they are so obvious that even a layperson could recognize them as requiring medical attention.(28) More significantly, the "deliberate indifference" prong also accords the prescribing doctor's judgment significant weight. Because courts have held that prison officials' intentional interference with prescribed medical treatment constitutes "deliberate indifference,"(29) the prisoner is constitutionally entitled to whatever treatment the medical professional decides is necessary.(30) Thus, under the Estelle test, the doctor determines to a large degree the prisoner's constitutional right to receive medical care.

However, the tremendous weight accorded such medical decisionmaking is tempered by a requirement that the doctor exercise professional judgement. The Court indicated this restriction in Estelle by stating that the prison doctor's conduct could constitute "deliberate indifference" if she chose the "'easier and less efficacious treatment.'"(31) Such conduct loses its constitutional validity because it is not based on "'an exercise of professional judgement.'"(32) Estelle explicitly states that negligent conduct on the part of physicians does not violate the Eighth Amendment.(33) However, treatment prescribed by a doctor that is significantly wide of professional standards should indicate that deliberate indifference, rather than an exercise of professional judgment, was involved.(34)

Thus, once the prisoner's condition has been identified as "serious," the treatment that he is constitutionally entitled to receive is dependent on the treatment prescribed by the doctor, assuming the doctor has in fact exercised her professional judgment. This is the Estelle medical professional judgment standard (the "Estelle MPJ standard"). Importantly, it does not seem to take the cost of the treatment into consideration at all. In fact, many lower courts have explicitly rejected the idea that financial concerns could influence the medical care rights of prisoners.(35)

Both this reading of Estelle, which indicates that cost concerns cannot be considered in determining prisoners' medical care rights, and the lower court cases that explicitly say as much are in line with general Eighth Amendment jurisprudence. Eighth Amendment violations can arise from inadequate food or living space, as well as inadequate medical conditions. When faced with the former claims, courts routinely hold that cost considerations should play no role in determining the constitutional rights of prisoners. Thus, in Hamm v. Dekalb County,(36) the court stated that the "state's interest in limiting the costs of detention ... will justify neither the complete denial of ... [food, living space or medical care] nor the provision of these necessities below some minimally adequate level."(37)

This jurisprudence stands in stark contrast with procedural due process jurisprudence, which, as described in Mathews v. Eldridge,(38) balances the individual's interest against the state's interests, which may permissibly include the desire to limit expenditures.(39) Importantly, Eighth Amendment jurisprudence does not allow costs to be factored into the constitutional formula. Rather, a prisoner's rights are determined from society's "evolving standards of decency."(40) Perhaps consideration of the state's financial concerns is inappropriate under an Amendment whose basic concept "is nothing less than the dignity of man."(41)

However, "balancing" of private and governmental interests is sometimes found in Eighth Amendment jurisprudence. Balancing the state's interest in maintaining "internal order and discipline and ... institutional security"(42) against the private interests of prisoners is legitimate and necessary.(43) Notably, the Court has allowed only the state's interest in maintaining security to be considered in balancing and has not indicated that the state's interest in minimizing expenditures may be so considered.(44) In this context, it is important to realize that concerns about security and discipline are generally not implicated in deciding what type of medical care is needed.(45)

III. THE DUE PROCESS MEDICAL CARE RIGHTS OF PRETRIAL DETAINEES AND THE INVOLUNTARILY COMMITTED

Unlike prisoners, pretrial detainees are not protected by the Eighth Amendment.(46) Rather, pretrial detainees have a right to medical care based on the Due Process Clause.(47) Because pretrial detainees have not been adjudicated guilty, due process demands that they not be punished.(48) Only those aspects of detention that are "reasonably related to a legitimate governmental objective," such as restrictions to assure that the pretrial detainee will show up in court, are not considered punishment(49) and may legitimately be imposed. In contrast, denying medical care to a pretrial detainee is not reasonably related to a legitimate governmental objective and, thus, amounts to punishment that the Due Process Clause forbids. …

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