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Legal Affairs

Beware of the Specialist’s Recommendations

By Robert P. Vogt, JD, CCHP

As a rule of thumb, courts prefer to leave the practice of medicine to those who are educated and trained in the medical field. Courts will generally “not attempt to second-guess licensed physicians as to the propriety of a particular course of medical treatment for a given prisoner-patient.” Medical professionals are not required to provide “proper” medical treatment to prisoners, but rather they must provide medical treatment that reflects “professional judgment, practice or standards.” The treatment decisions of medical professionals are given deference by the courts unless “no minimally competent professional would have so responded under those circumstances.”

The cases also hold that the Constitution is not a medical code mandating that specific medical treatment must be provided to an inmate. Inmates do not have a constitutional right to demand a particular type of medical treatment nor do they have the right to demand that treatment is provided by a particular type of specialist. Physicians do not violate the Constitution when, in the exercise of their professional judgment, they refuse to implement a prisoner’s requested course of treatment.

Furthermore, because the practice of medicine remains an art, judges recognize that “[T]here is not one ‘proper’ way to practice medicine in a prison, but rather a range of acceptable courses based on the prevailing standards in the field.” Because several acceptable courses of treatment may exist to address the same condition, deliberate indifference does not arise simply because two physicians hold different opinions on how to properly treat a condition.

Enter the Specialist
While these principles are fairly well-established, the law becomes murky when a specialist comes into the mix. In the eyes of the judiciary, a specialist often stands on a different footing and the willingness of the courts to defer to the correctional physician is much less.

It is important to note that, presumably, a correctional physician sends an inmate to see a specialist because the correctional physician recognizes the need for the specialist’s assistance. The correctional physician is unable to treat the inmate’s particular problem and reaches out for help from a professional whom the correctional physician recognizes as having expertise in that area. If the specialist examines the inmate and issues treatment recommendations that are subsequently ignored by the correctional physician, a heightened level of judicial scrutiny may result.

A review of the cases in this area reveals that the courts struggle with reconciling how a correctional physician can refuse to implement the recommendations of the specialist to whom the correctional physician turned for help in the first place. The judges look for evidence that a physician may have “deliberately ignored the express orders” of a specialist for “reasons unrelated to the medical needs of the prisoner.”

In such a circumstance, the courts generally do not decide that the correctional physician was deliberately indifferent in choosing not to follow the specialist’s advice. Instead, the courts simply determine that there is enough of a question that the issue should be left for a jury to resolve. As described by one court, “An inference of deliberate indifference may arise when prison officials refuse to follow an outside specialist’s orders or recommendations.”

The case of Gil v. Reed is perhaps the leading decision in this area. In Gil, the inmate suffered from a rectal prolapse and was referred by the prison physician to a surgeon specialist. Surgery was performed and the inmate’s surgeon specialist specifically instructed the prison medical staff not to provide certain pain relievers because of their constipating effect. Nonetheless, on three occasions after receiving these instructions, the prison physician ordered the inmate to be given the very medication that the specialist had warned against. This was done even though nonconstipating alternative pain relievers were available.

Under these circumstances, the Gil court could not make sense of the prison physician’s refusal to follow the specialist’s instruction and ruled that a jury should decide if the prison physician acted with deliberate indifference.

Conscious Decision or Blanket Denial?
In addressing inmate claims that a correctional physician was deliberately indifferent by refusing to follow a specialist’s recommendations, the courts try to assess whether the refusal reflected a conscious decision to try a different course of medical treatment or a simple blanket denial. The former is not sufficient to establish deliberate indifference, while the latter may show that the physician “knew of and disregarded an excessive risk to inmate safety.”

Provided that the decision reflects “a course of treatment based on the prevailing standards in the field,” the courts may still defer to the correctional physician’s judgment. As one court explained, “What we have here is not deliberate indifference to a serious medical need, but a deliberate decision by a doctor to treat a medical need in a particular manner.”

In one case, for example, the court sustained a correctional physician’s decision to provide an inmate with some, but not all, of the specialist-recommended medications. The physician’s decision was based on his belief that some of the recommended medications were duplicative of others. Similarly, in another case, the court upheld a correctional physician’s decision to forgo a specialist’s recommendation to obtain an MRI. Here, the physician relied on his own multiple clinical examinations of the inmate, and the findings of an x-ray, as guiding his course of treatment.

Electing to forgo the recommendations of a specialist presents liability risks and should be done only after careful consideration. Inmates often feel that they are legally entitled to a specialist’s recommendations even though appropriate alternatives are available. To help reduce any potential exposure, a correctional physician opting not to implement a specialist’s recommendation should document the basis for his medical judgment and outline the alternative course of treatment that will be provided.

— About the authors: Robert P. Vogt, JD, CCHP, is a partner in Weldon-Linne & Vogt, a Chicago-based law firm that defends health professionals and institutions in Illinois, Indiana and Wisconsin.

[This article first appeared in the Spring 2009 issue of CorrectCare.]