Chapter 90 and 42 U.S.C. Section 1983: Raising the Bar for Pro Se Plaintiffs
In recent years, the Defense Bar has seen historic numbers of pro se prisoner filings. Along with this increase is a new litigation trend that involves coupling traditional medical malpractice claims under Chapter 90 of the North Carolina General Statutes with Federal civil rights claims under 42 USC Section 1983. Given the cap on non-economic damages in Chapter 90 and North Carolina’s broad denial of attorneys’ fees recovery for prevailing parties, plaintiffs have weaponized Section 1983. Unlike Chapter 90, this section does not impose a damages cap and, when paired with a claim under 42 USC § 1988, allows for the recovery of attorneys’ fees–thus resulting in potentially much greater damages awards for aggrieved plaintiffs who have been able to retain counsel.
Although litigants have recently relied upon Section 1983 in cases of alleged excessive use of force by law enforcement, defense attorneys are increasingly seeing it used in cases filed against jail medical staff. Specifically, inmates have used Section 1983 as a cudgel against medical providers within the prison system, claiming violations under the Eighth Amendment’s prohibition against cruel and unusual punishment.
Claims under Chapter 90 and Section 1983 can arise from the same facts, but they are legally distinct and carry different burdens of proof. While their pairing poses a unique challenge for defense attorneys representing governmental actors within North Carolina jails, pro se plaintiffs perennially struggle to meet Section 1983’s elevated standard.
Following is a breakdown of the claims, a case study to illustrate how inmate plaintiffs are using them in a medical context, and factors defense attorneys should consider when facing these claims.
NCGS Chapter 90 and the Negligence Standard
Chapter 90 houses the State’s law governing medical malpractice claims. Plaintiffs are charged with proving, by a preponderance of the evidence, that the healthcare provider involved committed a deviation from the standard of care–a standard set by care providers with the same level of skill and experience, at the same time, and within the same locale or a similarly situated community. These claims are subject to a cap on non-economic damages, and in accord with North Carolina law in almost all civil cases, plaintiffs are not entitled to recover their attorneys’ fees.
42 USC § 1983 and the Deliberate Indifference Standard
Conversely, 42 USC § 1983 allows for a federal civil rights claim based on a violation of a constitutional protection. It states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Jail medical staff are government actors when they are employees of a County or a Sheriff, which makes them subject to Section 1983 claims. As such, when inmates believe they were not administered proper medical care, they can bring claims under both Chapter 90 and Section 1983.
The constitutional hook in the prison context is the Eighth Amendment’s ban on cruel and unusual punishment. In the medical context, this typically involves allegations that the plaintiff was denied adequate care. The United States Supreme Court in the 1976 case Estelle v. Gamble coined the legal standard known as “deliberate indifference to a serious medical need”. This standard is much higher than the typical negligence standard required of claims under Chapter 90. First, the plaintiff must prove he or she has a serious medical need. Second, the plaintiff is burdened with proving the care provider both knew about that serious medical need and deliberately chose to ignore it. The standard involves both an objective and a subjective element. Given the number of these cases that fail to make it past 12(b)(6), this is a standard that plaintiffs consistently fail to meet.
A Two-Pronged Approach to Seeking Damages: A Case Study
As opioid addiction continues to sweep the nation, cases of overdose and withdrawal have flooded the prison system. Staggering numbers of inmates evidence signs of addiction when admitted and, because the standard of care within prisons is to provide palliative care (for instance, administering Ativan for anxiety and Phenergan for nausea), the individuals can and do suffer withdrawal. Dying from withdrawal is exceedingly rare, but nonetheless, some parties have attempted to use jail deaths as evidence of deliberate indifference under Section 1983.
In the case study, the plaintiff asserted claims against jail medical staff for negligence and gross negligence, willful and wanton negligence, common law negligence, and deliberate indifference under Section 1983, along with other claims. The core argument–raised by the representative of the deceased inmate’s estate–was that prison medical staff deliberately ignored the decedent’s withdrawal symptoms and that she became dehydrated and died as a result. However, the facts learned in discovery did not support this claim.
The Complaint painted a dire picture of a woman who was reeling from heroin withdrawal, whose health was in rapid decline and who vomited liters of fluid until she eventually coded. However, a subsequent autopsy report revealed her cause of death to be the consequences of drug abuse, not dehydration. Medical literature reveals it is very rare to die from actual dehydration. Instead, a patient suffering from dehydration can experience an electrolyte imbalance which can lead to cardiac arrhythmia. Further, patients who abuse methamphetamines often suffer from cardiac and vascular damage as a result of the toxic byproducts of manufacturing and using the drug. Because jails employ a standard of care (palliative medicines) to treat inmates who are addicted, withdrawal symptoms like plaintiff’s are inevitable and as such, are not evidence of a serious medical need or negligence by medical staff.
Even more problematic for the plaintiff, however, was the plaintiff’s failure to prove that the medical staff were indifferent to the decedent’s condition. Video footage showed the inmate walking around her cell, conversing with jail medical staff, and drinking water from a cup on the night she coded, all while she was supposedly lying in bed dying. The medical record contained notes indicating more than 30 interactions between the inmate and medical staff. This record is the opposite of deliberate indifference.
Further, upon admittance, the decedent admitted to a triage nurse that she battled a 1-gram per day heroin habit. She denied other drug abuse. However, when she passed away three days later, her toxicology report revealed traces of methamphetamine in her system. Given the short half-life of methamphetamine, the decedent must have had a large amount of the drug in her system when she was booked in to the jail. Tragic those these facts are, they further eroded her claim that the medical staff’s deliberate indifference to her condition caused her death.
Most of these cases proceed similarly. In some cases, the Chapter 90 claim will survive dispositive motions, but many fail to clear the higher bar set by Section 1983. Not to mention, 1983 claims–which involve federal questions–are subject to the heightened pleading standards under Twombly-Iqbal when they are removed to federal court, and many pro se plaintiffs are simply unable to meet that standard.
Pro se inmate claims are subject to an initial review for frivolity under the Prisoner Litigation Reform Act as codified at 28 U.S.C. § 1915A(a) & (b). Recently, District Court Judges have trended toward increasing permissiveness, allowing more claims to proceed to initial pleadings and discovery. Anecdotally, rising racial tensions and the ascendancy of the Black Lives Matter movement have driven more excessive force claims–which are also 1983 claims–and possibly opened the floodgates for more acceptance of complaints lodged against government actors. However, there is no clear-cut answer as to why more of these cases seem to be surviving judicial scrutiny.
Regardless, there are a few factors defense attorneys should consider when facing 1983 claims against government actors in the prison context, particularly when they are paired with North Carolina medical malpractice claims. First, when prison staff are government actors, they are afforded various immunity defenses including governmental immunity, public official immunity in certain circumstances and qualified immunity. These defenses are relevant when counties are large enough to hire their own personnel instead of contracting with third-party, private actors. Immunity defenses are layered and complex and require defense counsel to coordinate the pleadings and discovery to raise the appropriate defense at the right time. Further, under certain circumstances the denial of a dispositive motion can allow for an immediate, non-interlocutory appeal.
Second, it is vital to develop a basic understanding of the science: how the human body responds to certain substances (and mixtures of substances), how withdrawal affects the body, and what contributes to overdose deaths. The case study is illustrative: in both, defense counsel’s command of the medical underpinnings in the case was instrumental in rebutting the plaintiff’s claims.
Finally, as in most complex litigation matters, it is crucial to develop social intelligence. Understanding the societal view of a client and the plaintiff can help counsel not only build a defense but also, meet any rebuttal and prepare for an adverse ruling. Societal trends like heightened racial tension and increased awareness of the lethality of the opioid epidemic can shift the judicial temperature and inform the inevitable biases of jurors. In heated times when government actors face heightened scrutiny, it is vital to understand how your client may be perceived and to prepare to inoculate or, in many cases, accept those perceptions.
While we cannot say with certainty how courts will trend throughout the next decade, for now, we can expect to see more and more of these claims passing muster in the federal court system. Understanding how to meet them, not only from a legal perspective but a social one, is essential.