The Difference Between a Medical Malpractice Claim and a Deliberate Indifference(42 § USC 1983 Civil Rights) Claim

Healthcare professionals in the private correctional healthcare business are often faced with law suits involving multiple claims. In most cases those claims involve either a claim for professional negligence, often referred to as medical malpractice, or a claim for deliberate indifference, often referred to as a civil rights claim. These claims are significantly more different than they are similar.

First, a medical malpractice claim is essentially a peer reviewed claim of professional negligence. In most states before the plaintiff can file a medical malpractice claim he/she must obtain a written opinion from a physician or other healthcare professional licensed in the same specialty. The opinion must set forth the standard of care required, the care actually provided, why the care provided violated the standard of care, and how the alleged care damaged the plaintiff. Retaining an expert is expensive, but not necessarily difficult. However, it is the expense that generally prevents most inmates from retaining an expert. If the inmate cannot retain an expert he/she cannot file a medical malpractice claim. There is no such requirement for a deliberate indifference claim. The deliberate indifference claim is a federal cause of action and only requires the inmate to allege in his complaint that you knew of his/her serious medical need and that you intentionally deliberately ignored the serious medical need. For this very reason inmates often file frivolous and unwarranted claims against correctional healthcare providers. It is not unusual for a correctional healthcare professional to have 5 or more deliberate indifference claims during a career.

Second, in a medical malpractice claim the inmate must prove that you failed to provide care that was within the standard of care for your specialty. This is known as ordinary negligence. The standard is very low; however, it requires expert testimony to prove the claim. In the deliberate indifference claim the inmate must prove that you were aware of his/her serious medical need and that you intentionally disregarded it. This is an extremely high burden and requires an intentional act on behalf of the healthcare professional. Therefore, while it is easier to file a deliberate indifference claim, the standard of proof necessary to win is much higher than a medical malpractice claim. For this reason most deliberate indifference claims are dismissed by the court after discovery is completed. The inmate, regardless of whether or not he/she has counsel, simply cannot prove the healthcare professional was intentionally indifferent to his/her serious medical need. Deliberate indifference is often referred to as “willful wanton misconduct”. For most healthcare professionals they simply care too much about their patients to act in this manner.

Third, in most cases medical malpractice claims are filed in state court and follow state rules of civil procedure. Most deliberate indifference claims are filed in federal court and follow federal rules of civil procedure. In some cases the inmate will file a claim for both medical malpractice and deliberate indifference. In these cases the court follows state substantive law relating to the medical malpractice claim and federal substantive law relating to the deliberate indifference claim.

Fourth, in most states medical malpractice claims do not allow punitive damages or if they do, the burden is very, very high and generally requires some form of willful wanton misconduct that shocks the conscience of the court. Most states also have “tort reform” which means caps on pain and suffering damages. Deliberate indifference claims allow for punitive damages and do not have caps. Therefore, the potential damage award in a deliberate indifference claim is much higher than a state medical malpractice claim. Additionally most medical malpractice insurance programs do not cover “intentional acts”. Coverage is decided on a case by case basis and requires a more in depth analysis.

Chapman Law Group has defended correctional healthcare professionals since 1989. We are proud of our track record and vigorous defense of the dedicated men and women who tirelessly provide healthcare to a very difficult population. If you need further assistance in Michigan or Florida and would like our help please feel free to contact us.

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Ronald W. Chapman II LL.M.

Chairperson of White Collar Defense & Government Investigations

Michigan Office
1441 West Long Lake Rd., Ste. 310
Troy, MI 48098
Phone: (248) 644-6326

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