Correctional Nurse Legal Briefs: Common Areas of Nursing Malpractice Claims

Medical LawsuitA study of nursing liability claims by a major nursing malpractice insurance provider grouped common allegations by the amount of paid indemnity (money paid out by the insurance company for the case) as well as frequency of the claim. Although this data cuts across all nursing specialties, the top categories of malpractice claims have application in the correctional nursing specialty. Let’s review these as they relate to the particular perils of correctional nursing practice.

Scope of Practice: Scope of practice claims brought the highest payouts. The insurance provider proposed that this is due to a perception that practicing outside of a nurse’s professional license is considered to be of high concern. Correctional nurses have high risk of practicing outside the scope of licensure. Our specialty practice has few boundaries. Correctional peers may have little understanding of what nurses can and can not be asked to do. There may be pressure to limit the involvement of costly outside resources. Wanting to be helpful in a difficult situation, nurses may slip into poor practice outside licensure limits. All nurses must understand the limits of their licensure, but correctional nurses, in particular, must also be willing to speak up when asked to perform outside the boundaries.

Patient Assessment: Claims in this category are frequent. Patient assessment is a major component of correctional nursing practice as nurses are most likely the first to see the patient and a timely assessment indicates need for monitoring, treatment, or referral to another professional such as a provider, dentist, or mental health specialist. The most frequent successful claims in this category were failure to properly or fully complete a patient assessment and failure to assess the need for medical intervention. Of note is a category of claims related to failure to consider or assess the patient’s expressed complaints or symptoms. Correctional nurses can easily slip into a pattern of considering patient complaints to be malingering, manipulation, or attention-seeking. Yet, all patient complaints and expressed symptoms must be objectively evaluated as a part of professional nursing practice.

Patient Monitoring: Once again, correctional nurses, as the primary health care staff in a correctional setting are required to monitor patient conditions and alert providers if changes warrant treatment alterations. The highest percentage of closed claims in this category were related to monitor and report changes in the patient’s medical or emotional condition to the practitioner.

Treatment/Care: This was a broad category in the nursing malpractice data. It included not completing orders for patient treatment as well as delays in completing orders. Mentioned in the report was the need for effective communication among practitioners as many claims were the result of communication failures. Correctional nurses often work with providers who are only minimally on-site and must be contacted by phone for orders or evaluations. Broken communication systems or delays in communication are frequent in an on-call situation. In addition, staff nurses and providers may be unfamiliar with each other, leading to judgment concerns and unfamiliarity with style and perspective. If a provider or nurse is known to be hostile or uncivil, hesitation and delay in communication can result.

Medication Administration: Drug-related errors figure prominently in this evaluation of nursing malpractice claims. The most frequent cause of medication administration claims was giving the wrong dose of medication followed by using improper technique, and administering the wrong medication. Authors of this report noted, once again, the importance of communication, particularly in clarification of confusing medication orders before administration. Medication administration in the correctional setting has additional challenges that increase risk. Pill lines are often long and nurses can be pressured to complete medication administration quickly due to other security concerns. Cell-side medication delivery in high-risk areas such as administrative segregation can lead to pre-pouring medication; an increased error risk.

Documentation Deficiencies: As expected, poor documentation of nursing care contributed to many of the closed malpractice claims against nurses. Incomplete documentation was a factor in many of the above categories and bears mention as a liability risk. Correctional nurses are often called upon to maintain patient record documentation in less-than-ideal situations. If a physical charting system is in use the single chart may be unavailable at the time and location of care delivery. Even electronic medical records require computer availability (great enough number) and accessibility (located where care is delivered). Nurses delivering care in a disseminated system may not be able to chart until returning to the medical unit many hours later.

There are many legal risks to working in a correctional setting, but nurses can greatly reduce the chance of a malpractice claim by attending to the above areas of vulnerability.

Have you experienced any of these liabilities in your practice setting? Share your thoughts in the comments section of this post.

Photo Credit: @ Matthew Benoit –

Correctional Nurse Legal Briefs: Understanding Professional Liability

Medical Lawsuit

This post is part of a continuing series on legal issues important to correctional nurses. Find other topics in the series here.

From my case files:

A nurse hears a man down code called overhead while returning from providing sick call in one of the housing units. When she arrives at the scene she sees that the inmate is sprawled out on the cell floor and appears unconscious. The housing officer tells her the inmate is breathing so she runs back to the medical unit to get oxygen and emergency supplies. When she reaches the medical unit she tells another nurse to activate emergency medical services as the patient will definitely be heading to the hospital. The sick call nurse returns to the housing unit with the emergency supplies, provides standard emergency treatment, and, some minutes later, assists the emergency personnel to prepare the patient for transport. Three months later she is named in a malpractice lawsuit.

As professional health care providers, nurses are held to standards of practice related to our licensure. Malpractice is claimed when a professional acts or fails to act to the level of their professional education and skill. This is also referred to as professional negligence as negligence, itself, is a general term for carelessness or a deviation from actions that would be taken by a reasonable person in the same situation.

Components of a Malpractice Claim

Six elements must be present in a malpractice claim to prevail. All factors must be convincingly presented for the nurse to be deemed liable in a malpractice case.

Duty owed the patient: Nurses owe a duty of care based on licensure and role at the time of the claim. A nurse-patient relationship is established by a nurse accepting an assignment involving the patient and continues until closure of that assignment. That closure can come when the patient is handed over to another qualified individual, as in the case of infirmary care, or when the patient is released to personal self-care as at the conclusion of a sick call episode or release from the facility. That a duty is owed in a particular circumstance is fairly easy to establish. If a nurse is in the midst of a shift and working under a job description when presented with a patient such as in our case above, the nurse owes a duty to the patient to respond as any prudent nurse would in a similar situation.

The nature of the duty is established by the circumstances of the incident. This can be less clear and, in a court case, often requires the testimony of expert witnesses of similar background. These expert witnesses base their testimony on practical experience in a similar setting but also on published standards. Standards for correctional nursing practice are published by the American Nurses Association and are structured around the nursing process. Expert witnesses may also rely on accreditation standards. In correctional settings, that would be the National Commission on Correctional Health Care Standards and the American Correctional Association Standards. Although voluntary, these standards lay out indicators of quality health care processes that may be in question in a legal claim. There are also some states that have specific state statutes and regulations that address minimum standards of care expected in the correctional setting.

Breach of the duty owed: Once duty is established, a breach of that duty then needs to be clearly presented. The groundwork has already been laid by the expert witness(es). A breach of duty relates to action or inaction that does not meet the expected standard of care for the situation. Duty owed can be established through various, often written, sources such as:

  • Standing policy, procedures, protocols
  • Emergency procedures
  • National guidelines and standards

Foreseeability: A successful malpractice case must also establish that the nurse should have reasonably been able to foresee that harm would come. No one has a crystal ball to see into the future and some random harm can come from nurse actions. Foreseeability establishes that the injury could have been considered and steps taken to keep the patient from harm. In our case example, a nurse was called to an emergency man-down in a housing unit and was the only health care staff on the scene. Patient abandonment was alleged as the nurse did not assess the patient or provide immediate care before leaving the scene. A prudent nurse, it was claimed, would have stayed with the patient, rendering care while an unlicensed staff member brought the equipment. The plaintiff’s lawyer argued that the nurse should have foreseen that the patient would be harmed by her departure without any other healthcare provider left there to deliver care.

Causation: The case now moves to cause. Did the nurse’s breach of established duty directly cause the injury? Causation of an injury can be multi-faceted so narrowing down cause to the nurse’s action or inaction in breach of duty may be challenging. In this case, the patient suffered a hypoxic stroke, but would the outcome have been different if the nurse had repositioned the patient and provided rescue breathing? That would be for the plaintiff’s legal counsel to support through the use of medical experts with experience in a similar setting.

Injury: Physical injury must then be established. This, again, must be directly linked to the nurse’s breach of duty. There are some rare exceptions here, but injury must be quantifiably physical rather than merely psychological in nature. In the case above, the nurse’s abandonment must be established as the proximate cause of a physical injury to the patient. This patient was permanently disabled due to brain injury.

Damages: The final element of a malpractice allegation is damages incurred. This infers the level of the injury to the plaintiff caused by the nurse but damages can also be ascribed in a broader manner. There are three main categories of damages sought:

  • Special damages (out-of-pocket): These are the primary damages of a malpractice case and are determined by actual economic loss such as lost wages, medical expenses, medications, or therapy. These damages can only be claimed with proof such as receipts and bills.
  • General damages (noneconomic): These are less quantifiable damages such as pain and suffering or emotional distress. Although receipts or bills would not be available to establish this type of damage, the plaintiff much have some evidence to support the request.
  • Punitive damages: Punitive damages are intended to add a punishment to the defendant. If a clinician lapse is particularly egregious or misconduct or tampering are discovered in the case, punitive damages may be high.

Although not part of the legal case, malpractice determinations are reportable and considered by State Licensing Boards for disciplinary action such as suspension or revocation of licensure.

In this particular case, settlement was reached before trial, as so often is the case. The plaintiff was awarded a large but undisclosed settlement. Was the nurse guilty of malpractice? What do you think?

Photo Credit:© Matthew Benoit –

Under the Influence: Impaired Nurses in Corrections

pill on a hookOne in ten doctors and nurses abuse drugs or alcohol. Is this surprising to you? It is to me. Although this number (10-15%) is equivalent to abuse rates in the general public, those of us in healthcare have a special responsibility to be able to think and act clearly as we are responsible for providing safe patient care. Drug abuse is particularly concerning in healthcare as there is increased access to addicting substances. This can be especially true in correctional healthcare, a low tech setting with fewer barriers to access. For example, very few correctional systems have electronic lockout systems such as pyxis.

Some impaired healthcare professionals gravitate to a correctional setting with the perception that the system has fewer safeguards than a traditional setting; so drug diversion is less likely to be detected. Unfortunately, this may be an accurate appraisal, especially in smaller or disorganized settings where strong narcotics security is not in place. Even well-managed settings can become lax about shift narcotics counts or double-lock systems. Here are a couple successful diversion methods from my own correctional management experience. Could any of these happen in your setting?

  • The foil backing of a bubble pack of oxycontin was slit. Pills were replaced with a similar looking over-the-counter medication and taped back in place. Bubble packs of the same medication were banded together and the middle pack was tampered with. Nurses were only counting the number of packs each shift.
  • An entire page of a narcotics ‘red book’ was sliced from the book along with the full pack of medication. Nurses were counting based on what was in the drawer rather than what was in the book index so it was unclear when the theft took place.
  • A hospice patient was on liquid morphine at fairly high doses. A sealed box of multiple bottles was double locked in the long-term inventory. When active stock was depleted, the sealed box was opened to find that it no longer contained all the original bottles. The count had been done for some time by just looking to see that the box was still in long-term inventory so it was unclear when it had been tampered with.

According to the National Council of State Boards of Nursing, there are four risk factors for narcotic diversion. How does your setting line up with these risks:

  • Access:  Relatively easy access to narcotics in the clinical area
  • Attitude: A relaxed attitude toward narcotics security in the setting
  • Stress: A high stress work environment including shift rotation and frequent short staffing
  • Lack of Education: Staff members are not regularly educated or warned of narcotic diversion concerns

One of the greatest ethical challenges you may face as a nurse is confronting a workmate who appears to be abusing substances. An atmosphere of suspicion and feelings of betrayal can poison work relationships. Many nurses would rather look the other way than deal with the after math of talking to a colleague or reporting suspicious behavior. An article from American Nurse Today has some helpful information on signs and symptoms of a substance abusing nurse:

Physical Signs

  • Tremors
  • Slurred speech
  • Watery eyes
  • Sweating
  • Unsteady gait
  • Runny nose
  • Change in grooming

Behavioral Changes

  • Frequent mood changes
  • Angry outbursts
  • Defensiveness
  • Lack of concentration
  • Blackout periods
  • Frequent lying
  • Poor judgment


  • Wearing long sleeves even when it is hot
  • Unexplained absences from the nursing unit
  • Medication errors
  • Reports of lack of pain relief from assigned patients
  • Offering to medicate co-worker patients
  • Increased narcotic sign-outs

Being aware of drug diversion or of staff members working impaired is both an ethical and legal concern. We have a responsibility to our patients and other team members to address concerns about a colleague’s substance abuse behaviors. In fact, we have a responsibility to our impaired colleague to initiate action so that they get the help they need to overcome their addition.

Have you witnessed drug diversion or impaired nurse behavior in your setting? Share your insights in the comments section of this post.

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5 More Ways Correctional Nurses Can Land in Court

This is a continuation of a list started in an earlier post. Correctional nurse experts Kathy Wild, RN, MPA, CCHP and Royanne Schissel, RN, CCHP, offered advice to correctional nurses during the 2013 NCCHC Spring Conference.  Here are five more ways you can land in court.

#1- Treat your patient as an inmate – It is easy to slide into a punative perspective in dealings with inmates. After all, some of them have learned that they can get what they want through manipulation and deceit. Yet, according to Earl Nightingale, our attitude toward others determines their attitude towards us. As nurses we are called to treat all patients with respect and dignity. We cannot disrespect or abuse the patients that we are responsible to treat.

#2-Don’t share critical health care information with others – HIPAA release forms are not needed for every situation. Check out this earlier post about sharing confidential patient information in the correctional setting. We often need to share important health information with custody officers. Officers, especially housing officers, are part of the treatment team and need to be aware of significant medical conditions that may need early medical attention.  Communication is important.

#3- Don’t follow up on something because “It’s not your job” – Nurses are responsible for positive patient outcomes. Yet, in some correctional cultures, staff are willing to do specific tasks and no more. Some correctional settings still ascribe to a functional care delivery pattern where some nurses only perform sick call while others only perform medication administration activities. “It’s not my job” is not an appropriate response where patient outcomes are concerned and does not absolve nurses from responsibility in a bad outcome where something could have been done to improve a patient outcome.

#4-Don’t follow current protocols – Protocols often guide nursing actions in the correctional setting. They are particularly important for nursing sick call and emergency responses. Written protocols should be available at all times and staff should know where protocols can be found. For example, the only copy of clinical protocols should not be locked in a supervisor’s office. Skipping protocol steps is a frequent problem in legal cases. Referring to the protocols frequently will ensure that this does not happen. Relying on memory is not good practice. Another legal concern with protocols is keeping them updated with any new changes in practice. At a minimum nursing protocols need to be reviewed and updated annually.

#5-Don’t look for other employment when you are not happy with your job – Correctional nursing is not for everyone. The environment can be unfriendly and the patient population challenging. If you don’t enjoy your work you can fall into practice patterns that can land you in court. Indications that you don’t like your job can include calling inmates names, calling other staff members names, having a bad attitude, or taking shortcuts with patient and staff safety. Some nurses are unable to overcome concerns that inmate patients are dangerous. Yet, you can’t help a patient when you are afraid. If you see these indications in yourself, consider other nursing options. Maybe correctional nursing is not a good match for you.

What do you think of this list of risky practices? Have you been tempted or pressured to let your guard down in any of these areas? Share your thoughts in the comments section of this post.

5 Ways Correctional Nurses Can Land in Court

Possibly more than any other nursing specialty, correctional nursing practice is lawsuit-prone. Our patient population, already in the criminal justice system, frequently seeks legal action when they feel they have not received rightful healthcare. Correctional nurse experts Kathy Wild, RN, MPA, CCHP and Royanne Schissel, RN, CCHP, have decades of experience in the specialty as staff nurses, managers, and legal nurse experts. They offered advice during the 2013 NCCHC Spring Conference. Here are five ways you can land in court.

#1-Don’t listen to your patient’s description of symptoms. Correctional nurses need to be good listeners. Although patients may embellish their symptoms at times, there is still truth in and among the various information bits being presented during a patient encounter.  The goal is to find the important information that determines an accurate diagnosis and response. Listening also includes obtaining information from housing officers and family members. They can have important clues to what is going on. Disregard patient information at your own peril.

#2-Don’t use your assessment skills when evaluating a patient complaint – Although tempting, malingering is not an appropriate nursing diagnosis. Once this thought is expressed it can set the mind of every other care provider going forward. Correctional nurses must guard against judgmentalism and, instead, gather subjective and objective data to confirm symptoms and establish causes when dealing with patient complaints.

#3-Don’t call the doctor when you’re not sure about something. Long-term correctional nurses can think they know more than the doctor they would be calling. Often the provider is not a corrections specialist or does not know the patient. The context of correctional nursing can allow nurses to drift into thinking they can handle almost anything without need of a physician.

#4-Don’t take the time necessary to thoroughly document your encounter – Lawsuits come along years later and you won’t remember the encounter without clear and thorough documentation. Document completely and thoroughly as close as you can to the patient encounter. The medical record is both a communication tool and a legal document. Be sure the record is legible, limited to the clinical facts, and without commentary on what others have done. Charting should include a first-hand account of what was observed and what was performed for the patient. In addition, in our specialty, it is also necessary to document why a patient wasn’t seen. For example, the patient may have been in court or released early.

#5-Not knowing what your nurse practice act says about your practice. Unlike traditional healthcare settings, nurses working in corrections may not have clear practice boundaries identified by policy, procedure, and a strong nursing organizational structure. All correctional nurses, no matter the position, must have a clear understanding of what can and can not be done based on their state licensure. Nurse can be requested to perform outside their licensure by uninformed corrections administrators, physicians, and even other nurses. Just because you are able to perform a function or procedure doesn’t mean that you are licensed to do it. Some nurses have a misguided impression that they must be permitted to do something since an employer requests it. This is not so.

What do you think of this list of risky practices? Have you been tempted or pressured to let your guard down in any of these areas? Share your thoughts in the comments section of this post.

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Correctional Nurse Legal Briefs: Prison Litigation Reform Act (PLRA)

Recently I was contacted by the wife of an inmate about his poor medical care. He is currently in a state prison. She wanted to interest a legal firm in taking on the case and was wondering what information she would need to gather. One of the first things I asked was about the actions her husband had already taken to remedy the situation. For example, had he already requested treatments through the normal sick call process or submitted grievances about his medical care?

Legal recourse is a common place to go when inmates are not receiving needed healthcare. A 205 survey sited in this article found medical care to be the number one litigation topic in both jails and prisons.

The Prison Litigation Reform Act (PLRA) was passed in 1996 to require preliminary actions before a legal claim is heard by the court. This legislation was originally proposed to limit frivolous inmate lawsuits regarding their conditions of confinement and is limited to civil cases (not medical malpractice). See an earlier post on Section 1983 (Civil Rights) cases.

Key Points of PLRA

  • Exhaustion of Administrative Remedies – An inmate must first use the internal grievance system to the full extent (including any appeals process) before taking legal action on a claim
  • Mental or Emotional Injury – cannot be claimed without first showing physical injury
  • Screening and Dismissal – PLRA allows a case to be screened by the court and dismissed as frivolous even before the defense is required to reply.
  • Three-Strikes Clause – Upfront filing fees are generally waived or greatly decreased for inmates due to poverty. However, after three prior lawsuits dismissed as “frivolous, malicious, or failing to state a claim for relief”, this waiver is exhausted. Further filings will require the full fee be paid upfront.

The number of lawsuits filed by inmates greatly increased from 1970 to 1995. More than 40,000 inmate claims clogged the legal system in 1995. The PLRA aimed to reduce frivolous and unnecessary inmate lawsuits by creating some boundaries on the types and frequency of legal claims. Lawsuits filed by inmates have been reduced to around 25,000 per year.

What has been your experience with PRLA? Do you think it is a good idea?


Correctional Nurse Legal Briefs: Medical Rights of Estelle v. Gamble

In a prior post I have described the practice impact of the Supreme Court decision on Estelle v Gamble in 1976; in particular, deliberate indifference and serious medical need. In this post, I want to dig deeper into the basic rights that were established by this precedent-setting decision. Many court cases over the ensuing 40 years have unpacked these rights and further described them. While reading these descriptions, consider how your nursing practice is affected by the basic principle underlying the right.

Access to Medical Care

The first provision of the Supreme Court ruling is the basic right to medical care access. If an inmate needs medical attention, this cannot be denied. There are many ways in which medical care can be passively denied. Barriers to care can be found in the structure and process of security services and health care delivery systems. For example, a facility may not have enough health care staff to meet the needs of the inmate population. If patients must wait weeks to be seen by a practitioner for an urgent condition, access to care is being hindered. This provision also covers specialists and inpatient treatment. If the medical care needed for a condition cannot be provided by onsite staff, adequate and timely access to specialists must be provided.

Care that Was Ordered

If medical staff determine that a treatment is needed and an order for the treatment or medication is written, it must be honored. Security staff or internal processes cannot hinder the required treatment nor can treatment be countermanded. Of course, accommodation of security concern is understood to be foundational and collaboration with custody staff is needed to deliver medical care in our setting. An example of abridgement of this right would be for custody staff to require an inmate to report to work duty when bed rest was ordered for treatment of a sprained ankle. What Estelle v. Gamble imposes, then, is a legal duty on the part of the custodial authority to honor medical orders.

A Medical Judgment

The third medical right for inmates garnered by Estelle v Gamble is a right to a professional judgment. This right covers the need for appropriate health care staff to assess and determine medical care required by an inmate. The courts wanted to be sure that decisions about medical care are based on medical need and not on security need or convenience. For example, necessary care cannot be denied due to budgetary constraints or as a punishment. Healthcare staff cannot avoid a patient because he or she is a complainer or is obnoxious. Inmates, unlike free citizens, are not able to access other sources of care if they are not getting their needs met when incarcerated. The courts want to ensure that this does not adversely affect them. This right has significant implications for correctional nurses. Inmates cannot be avoided or disregarded because they are labeled as ‘trouble-makers’ or ‘manipulators’. Treatment cannot be denied because it is too expensive for the budget. This is not to eliminate efforts to be as cost-effective as possible in providing adequate care, however.

How have you seen these three primary medical rights of inmates implemented at your facility? Share your thoughts in the comments section of this post.

Photo Credit: © Matthew Benoit –

Correctional Nurse Legal Briefs: Section 1983

Subpoenas have been issued at your jail for an inmate claim that his continuing headaches were ignored and he was denied necessary treatment of his ‘serious medical need’. Your risk manager and legal counsel will be meeting with staff members involved in the case, including nurses involved in triaging the sick call slips. They are referring to this as a Section 1983 case…..

Although all nurses should have an understanding of nursing malpractice and the legal basis of their profession, correctional nurses have an added need to understand law. When I first entered the specialty I knew little about the importance of various constitutional amendments or civil rights legislation and my work actions. When I first heard the term “1983 Case” I made a mental note to check out that year and see what had happened that was so important. I was in nursing school in 1983. That was a long time ago and I didn’t remember much that was going on. However, 1983 is not a year but a section of US Civil Rights Act of 1871. This act was created to protect those who were being harassed by the Ku Klux Klan following the Civil War. Section 1983 of this act is the means through which US citizens can bring forward a civil claim that their constitutionally protected rights have been violated.

Section 1983 legal claims include false arrest, unreasonable searches, equal protection, and excessive force. For correctional nursing practice, Section 1983 claims involve abridgement of the 8th or 14th Amendment to the constitution as it relates to health care provision of prisoners or detainees. In Estelle v Gamble (1976) the Supreme Court ruled that denial of adequate medical care constituted “cruel and unusual punishment” as was protected against by the 8th amendment to the constitution. Jail detainees are not yet prisoners being ‘punished’ and technically are not addressed in the 8th amendment. However, Bell v Wolfish (1979) established this same need of adequate healthcare for unconvicted detainees under the 14th amendment which protects due process for criminal conviction. In this case, the Supreme Court ruled that failure to provide medical care was a form of punishment imposed on an individual who had not been convicted of a crime. So, although unconvicted jail detainees and prison inmates have medical rights based on two different constitutional amendments, their medical care rights are essentially the same and legal claims of injustice are brought to court through Section 1983 of the Civil Rights Act.

So, a Section 1983 case is a civil rights case rather than a medical malpractice case and comes with a few peculiarities. Instead of looking to determine if the standard for nursing care was provided, a Section 1983 case is looking at the primary determinants of deliberate indifference to a serious medical need.  See my prior posts for more details on deliberate indifference and serious medical need. Although a Section 1983 case can be tried in either a state or federal court, plaintiff lawyers with background in these cases tend to lean toward federal courts as federal judges are receptive to claims of constitutional rights violations. Section 1983 claims also have a longer shelf-life as medical malpractice claims are governed by state law and can have a shorter timeframe for filing. In addition, plaintiff attorneys like Section 1983 cases because their fees, if they prevail, must be covered by the defendant (if reasonable). This element of the law allows for the pursuit of ‘smaller’ claims that might not otherwise be considered.

Have you heard the term ‘Section 1983’ or ‘1983 Case’ in your practice of correctional nursing? Share your experiences in the comments section of this post.

Photo Credit: © Matthew Benoit –

Correctional Nurse Legal Briefs: Understanding Serious Medical Needs

In September, 2012, the MA Department of Corrections was ordered by a federal judge to provide sex-reassignment surgery for a transsexual prison inmate to meet 8th amendment rights to treatment to meet serious medical need. The inmate had been diagnosed with Gender Identity Disorder (GID) and had failed other, more conservative, options such as hormonal therapy and psychotherapy. This court case and the current appeal provide an example of the type of correctional health care cases involving the civil rights of our patients.

More than other nursing specialties, correctional nurses need to understand the legal implications of health care in our delivery environment and the implications for our participation. Our patients not only bring malpractice cases before the courts, they also bring forward civil rights claims based on the 8th and 14th amendments to the constitution. In the landmark 1976 Supreme Court case of Estelle v. Gamble, justices determined that it was a violation of the 8th amendment clause of ‘cruel and unusual punishment’ for correctional health care providers to show ‘deliberate indifference to serious medical needs of prisoners.’ In an earlier post I discussed the concept of ‘deliberate indifference’. This post will take up the issue of ‘serious medical need’ as defined by the courts.

In the judgment of this original case, the concept of serious medical need was not clearly defined. It took several other cases to provide insight into the definition of this concept; in particular, Duran v. Anaya, 1986; Ramos v. Lamm, 1980; Dean v. Coughlin, 1985b. According to civil rights attorney, William J. Rold, these cases define serious medical need as:

  • Diagnosed by a physician as mandating treatment
  • Obvious enough to even a layperson as needing attention
  • Causing pain, discomfort, or threat to good health
  • Needing not to be life-threatening

When determining if the defendant was deliberately indifferent to a serious medical need, the courts have also taken into account these factors (again from Rold):

  • Is the patient’s condition amenable to treatment: Was there a treatment available that was withheld from the patient?
  • Consequences to the patient if they do not receive the treatment: What is the potential mortality or morbidity without the medical care?
  • Likelihood of favorable outcome: Will the treatment actually help the patient?
  • The patient’s anticipated incarceration: Will the patient be in custody long enough to complete the treatment or need the treatment?

Based on this information, do you agree with the MA court ruling that the patient’s serious medical need was not met without the requested surgery? Share your thoughts about the indicators of serious medical need in the comments section of this post

Photo Credit: © Matthew Benoit –

Correctional Nurse Legal Briefs: Understanding Deliberate Indifference

Inmate Barto is suing the medical director and nurses at your jail facility for not treating his leg ulcer that later developed osteomyelitis after release. He is charging deliberate indifference to his condition. While being confined to the jail for 10 days he did not mention the leg ulcer to any medical staff and left the facility before the required 14 day physical assessment. Does he have a case?


Unlike the majority of other nursing specialties, correctional nursing practice has been molded by the legal system. A body of judgments and class action cases has grown over the last four decades with escalation following the Supreme Court decision on Estelle vs. Gamble in 1976. Texas prisoner J. W. Gamble injured his back working on the prison farm. He contended he was not given medical treatment and even punished for his inability to work. His suit was against W. J. Estelle, then the director of the state department of corrections. The case moved through the lower courts and came before the Supreme Court where it was judged a violation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishment’ to not provide necessary health care to prisoners. This court decision established the standard of ‘deliberate indifference to serious medical needs’ as a breach of the Eighth Amendment.

Deliberate Indifference

The term deliberate indifference seems almost an oxymoron. Can you really be deliberately indifferent to something? This created phrase, however, is in standard usage in correctional healthcare and needs understood as it relates to nursing practice. Deliberate Indifference defined: When a professional knows of, and disregards, an inmate’s serious medical need.

Components of deliberate indifference:
• There must be a serious medical need
• Staff must know about the serious need
• Staff must intentionally and deliberately fail to provide required treatment for that need
• This failure to treat caused the inmate unneeded pain or suffering or similar harm

In the case above, staff were not aware of the leg ulcer while Mr. Brown was in custody and there is no indication that staff deliberately or intentionally refused to treat his condition. It is unlikely that his case will prevail.

Serious Medical Need

This phrase in the court decision also need consideration. A serious medical need Is one that, if left untreated, has a risk of serious harm to the patient and can be one of two categories:

• Diagnosed by a physician as requiring treatment
• Is a need so obvious that even a lay person would know it needed medical attention

Again, the case above does not meet either of the standards for serious medical need. Claims of this type are more common than you might think in our particular clinical specialty. Have you been named in a correctional lawsuit of this type? Most are brought by the inmate without legal counsel and are referred to as ‘pro se’ cases.

Some information in this post was obtained from a presentation by Stacy M. Blackman, Esq., Chief Legal Officer, CorrectHealth Companies, during a session of the 2012 ACHSA conference in San Antonio, TX.

Photo Credit: © Matthew Benoit –