By Martin Kosla
As a law firm that defends prison and jail medical staff, the first set of documents that we usually review and analyze (after reviewing the inmate’s complaint) are the medical records maintained by the institution. As such, there is a good chance that this is also the first set of documents that a plaintiff’s attorney will review. Later in the lawsuit, the records will be reviewed and scrutinized by the parties’ medical experts, who will then opine as to whether the inmate or detainee’s treatment was appropriate and whether the medical practitioner’s conduct was reasonable and within the standard of care. For this reason, the need to keep accurate, detailed and timely records is of the utmost importance.
We encounter and defend numerous lawsuits in which inmates allege that medical practitioners did not provide them with the medical attention that they thought was appropriate. This ranges from minor claims such as failure to provide desired pain medications to failure to put the inmate on a particular treatment protocol for Hepatitis-C to more serious claims such as failure to examine/treat following a severe head injury and wrongful death. Many of these lawsuits are brought by inmates under the Eighth Amendment, which prohibits cruel and unusual punishment. Other are brought under the Fourth or Fourteenth Amendments, which pertain to detainees and pre-trial arrestees.
In order to prevail in a lawsuit under the Eighth Amendment for inadequate medical care an inmate must show that the medical practitioner was deliberately indifferent to the inmate’s serious medical needs. In particular, the inmate must prove that: (1) the inmate had a “serious” medical need; and (2) the medical practitioner’s response to that need was unreasonable. In determining whether the inmate had a “serious” medical need, the courts will consider whether:
- a reasonable doctor would think that the condition is worthy of comment,
- the condition significantly affects the prisoner’s daily activities, and
- the condition is chronic and accompanied by substantial pain.
It is thus important that progress notes (and any other medical records) contain sufficient details to address these factors.
This is especially critical if the inmate disagrees about the severity of his condition. For example, if the inmate complains of substantial pain (e.g. 10/10) but the physical symptoms are not present to support such pain, then this discrepancy should be noted in the progress notes. Notations such as “claims 10/10 but has full range of motion and no grimacing/ tenderness on palpation” can be helpful.
The courts have held that delay in treating a “serious” condition can amount to deliberate indifference. (In such cases, however, the inmate must ordinarily show that the delay led to greater injury.) Therefore, it is helpful if progress notes explain any delays in treatment, especially if it was ordered by the practitioner but there were delays that occurred which were out of the practitioner’s control. For example, if an outside consultant is booked up for months, then this should be mentioned and phone calls or emails to try to get an earlier appointment noted. Otherwise, an inference could be made that the delay was the practitioner’s fault or, worse, that he didn’t care.
Further, the courts have held that if the medical practitioner is not competent to examine, diagnose, and treat an inmate’s medical problem, they must refer the inmate to another who can. (At the same time, the courts have held that an inmate has no independent constitutional right to outside medical care supplemental to the medical care provided by the prison.) In such cases, it is important that the appropriate referral form is completed in its entirety. The type and date of the referral should also be noted in the progress notes. This may be an internal form, such as a LVN referring the inmate to a Physician’s Assistant or Doctor at the facility.
For a medical care lawsuit brought under the Fourth or Fourteenth Amendment, or a negligence standard, the key issue is whether the care provided was consistent with the standard of care in the industry. Here, that means in correctional facilities. For example, if no correctional facilities are providing gender-transition surgery even when a doctor attests that it is psychologically necessary to the inmate’s well-being, then failure to permit and fund such a surgery may not be below the standard of care. Whichever standard applies, making more notations about the reasons for a particular course of care and treatment is almost always helpful later on.
Throughout an inmate’s treatment, there may also be a time when the practitioner discovers an error in the medical record. In such cases, the practitioner should draw a line through it and write the time and date and their initials in the margin. The practitioner should not destroy the original progress note or use white-out on it, as others may infer a nefarious reason for the redaction. Also, to prevent changes from being made by others to the record after the fact, it can be beneficial for practitioners to draw diagonal lines through any blank spaces left after a written entry in a progress note.
While not all lawsuits can be prevented, medical practitioners can help to minimize their exposure by at least keeping clear and detailed progress notes regarding an inmate’s or detainee’s treatment. After all, it has been often said that if it’s not written down, it didn’t happen. A progress note or other record helps remind the practitioner what occurred and corroborates it for the court or jury. A photograph is even better to show jurors, for example, if injuries are claimed but not visible (and of a type that should be visible such as a lack of bruises, abrasions, or swelling following an alleged beating).