Today, I want to discuss a few issues that I’ve recently come across with folks who have called up my office with concerns about family members that have died in prison because of medical neglect or medical malpractice. As you know, I am a prison malpractice lawyer, Florida law is strange when somebody dies because of medical malpractice.
First we have to go back and look at prisoners in general, because folks go to prison lose some of their rights. Medical care in prison is different than medical care on the outside. What happens in prison, so this is what happens in the medical setting. In prison, there are two types of claims available.
Deliberate Indifference or Eighth Amendment Claim
The first type of claim is a 42 U.S.C. Section 1983 claim, which is a constitutional violation under the Eighth Amendment or Cruel and Unusual Punishment amendment of the US Constitution. A deliberate indifference claim looks at whether the prisoner had a serious medical condition and whether the medical provider actually appreciated the risk of a problem and did nothing to treat the medical condition. Medical negligence or medical malpractice is a complete defense to a deliberate indifference claim because the standard is much higher. The Supreme Court and other courts have said, the prisoner doesn’t have a claim in the setting of malpractice because the Eighth Amendment requires subject intent and/or recklessness, so just being stupid or negligent is okay.
In a deliberate indifference setting, you have to show that the healthcare provider knew that the prisoner had a something serious going on, and just didn’t care. It’s much higher than the negligence standard, which is what a reasonable, prudent physician would do under similar circumstances. So in the deliberate indifference or constitutional law context. These claims are very fact specific and they require a situation that will piss a jury or judge off. In deliberate indifference matters, the healthcare provider will always get the benefit of the doubt.
Medical Malpractice Causing Death in a Florida Prison
The next type of claim that needs to be evaluated is medical negligence or medical negligence. This is a Florida state law claim, not a federal constitutional law claim. If somebody dies because of medical malpractice in Florida, this claim falls under the Wrongful Death Act. So if a patient dies because of medical malpractice, the claim is brought by the personal representative on behalf of the statutory survivors.
Here is the catch. In the medical malpractice context, the Estate can only bring a claim if the prisoner left a surviving spouse or child under the age of 25. If there is no surviving spouse and no children, 24 or younger, then there’s no way to pursue a medical negligence claim.
Recently I’ve looked at a number of cases where it was clear that the healthcare providers were negligent, and the person died in prison, but I couldn’t bring a claim because there was no surviving spouse or no dependent children under Florida’s Wrongful Death Act. I know that this is unfair, but this is also unfair to folks who are not in prison.
Also, if you’re on the outside and you go to your local hospital, the doctor or hospital is pretty much free to kill you if you’re not married or do not have younger children.