In an opinion filed on August 19, 2015 by the United States Court of Appeals for the Seventh Circuit (“Court of Appeals”), the appellate court discussed the high and often unfair hurdles faced by prison inmates alleging the deliberate indifference to their serious medical needs (that is, with knowing of a serious risk to inmate health or safety but responding ineffectually as by departing substantially from accepted professional judgment or not at all). In the case it was deciding, the district judge granted summary judgment in favor of the defendants on both of the inmate’s claims (the inmate had also included a retaliation claim).
The Court of Appeals extensively discussed the egregious lack of proper medical care that the plaintiff inmate had received over the course of years (the inmate had gastroesophageal reflux disease (GERD) for which he was prescribed Zantac that required strict dosing that the defendants repeatedly and intentionally failed to follow, including the failure to provide the inmate with access to Zantac, exposing the inmate to serious pain and the risk of serious gastrointestinal injury).
The Court of Appeals stated that a member of a prison’s staff is deliberately indifferent and thus potentially liable to an inmate if he knows of and disregards an excessive risk to inmate health. In the present case, the Court of Appeals stated that the inmate makes two distinct claims of deliberate indifference and that the evidence that the Court of Appeals reviewed tends to substantiate both claims.
The Court Of Appeals Cites “Reputable Medical Websites”
The Court of Appeals heavily referenced reputable medical websites in support of its analysis of the inmate’s deliberate indifference claim. The Court of Appeals stated, “In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be ‘going outside the record’ in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties … We must acknowledge the need to distinguish between judicial web searches for mere background information that will help the judges and the readers of their opinions understand the case, web searches for facts or other information that judges can properly take judicial notice of … and web searches for facts normally determined by the factfinder after an adversary procedure that produces a district court or administrative record. When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness. Such information tends to fall somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice, but it is closer to the second in a case like this in which the evidence presented by the defendants in the district court was sparse and the appellate court need only determine whether there is a factual dispute sufficient to preclude summary judgment … We are not deeming the Internet evidence cited in this opinion conclusive or even certifying it as being probably correct, though it may well be correct since it is drawn from reputable medical websites. We use it only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence, namely [the inmate’s] reported pain … There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross examination.”
In further support of its decision, the Court of Appeals stated, “He [the inmate] could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed ‘verifying medical evidence’ to support his claim. The district judge denied both requests, leaving [the inmate] unable to offer evidence beyond his own testimony that he was in extreme pain when forbidden to take his medication with his meals. The web sites give credence to [the inmate’s] assertion that he was in pain. But the information gleaned from them did not create a dispute of fact that was not already in the record … It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”
The Court of Appeals further stated, “Pure adversary procedure works best when there is at least approximate parity between the adversaries. That condition is missing in this case, in which a pro se prison inmate, incapable of retaining an expert witness (expert witnesses usually demand to be paid—and how would this inmate even find an expert witness?), confronts both a private law firm and the state attorney general. Because of the profound handicaps under which the plaintiff is litigating and the fact that his claim is far from frivolous, we urge the district judge to give serious consideration to recruiting a lawyer to represent [the inmate].”
The Court of Appeals reversed the district court’s granting summary judgment in favor of the defendants and remanded the case for further proceedings consistent with the Court of Appeals’ opinion.
Source Rowe v. Gibson, et al., No. 14-3316.
If you or a loved one may have a claim involving deliberate indifference to a serious medical need involving a present or former inmate, you should promptly find an inmate medical malpractice lawyer who may investigate your deliberate indifference claim for you and represent you in an inmate medical malpractice lawsuit, if appropriate.
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