1. Presented by:
Deana Johnson, Esq.
General Counsel
MHM Services, Inc.
djohnson@mhm-services.com
Essentials of Correctional Medicine
Presented by: Correctional Medical Education Associates

2. 1. Why Are You Being Sued: Important
Differences Between Medical
Malpractice and Section 1983 Claims
2. An Increasing Call for Testimony of
Correctional Providers in Criminal and
Quasi-Criminal Cases
3. Real Life Scenarios

3.  History of 42 U.S.C. §1983
 Why these cases are brought in federal
court
 State law claims
 Ability to bring one lawsuit and include
both federal and state law claims

4.  14 th Amendment;
 8 th Amendment;
 1 st Amendment; and
 Retaliation .
Essentials of Correctional Medicine

5.  Presuit requirements
◦ Differ by State
◦ Differ in federal and state courts
 Claim must be supported by expert
◦ Competency of qualifications
◦ Competency of opinions
 Causation

7.  v.

8.  Reporting adverse outcomes
 Disclosure on applications
◦ Licensure
◦ Privileges/New Job
◦ Insurance
 Attorney’s fees
 Venue
 Course of proceedings

9.  These are not cases in which you are
named as a defendant
 These are criminal or quasi-criminal
cases in which one side wants you to
testify as a witness
 How do you know whether it is a lawsuit
or a subpoena

10.  Inmate challenges to criminal sentences
◦ No longer just requested medical records
◦ Now want informal interviews
 Inmate challenges to civil commitment
decisions
◦ Increased # of states with these laws
◦ Increased types of crimes included therein

11.  Cost
◦ Forensic evaluation costs
◦ “Expert” witness costs
 Civil Commitments Taking
Scare Resources
 Credibility

12.  Criminal and quasi-criminal caseloads
increasing
◦ Same prosecutors and defenders
◦ Same pot of money
 Cost of forensic examinations
◦ Cost of experts
 Minimal cost of witness fees

13.  Treating Provider
◦ Knows Patient
◦ Not Paid Extra
◦ Sympathy for patient
 “Hired Gun”
◦ Reviewed documents
◦ High Fees
◦ Never met patient

14.  Unlike pro se suits, personal service
required
 Adequate Notice
 Witness Fee
 Reasonable Wait Time
 Right to Limit Your
Opinions

15.  State of mind at the time of the crime = no
opinion
◦ You did not being treating the inmate until sometime after
his conviction
◦ You have not conducted forensic exam
 State of functioning without medication =
no opinion
 Opinion of actions of other providers

16. ◦ Free opinions make you a popular witness
◦ Refusal to stray beyond factual observations
give them no reason to call you
◦ Don’t get in trouble with the Court but do not
become everyone’s favorite witness because
you want to “educate” people
Essentials of Correctional Medicine

17. 1. Cast: Dr. Smith and Unit Manager
2. Facts:
a) Issue is change from single to double cell
b) Allegation against Dr. Smith
c) Dr. Smith a new employee and first time sued
3. Issues:
a) Is the suit reportable to the licensing board?
b) Effect on the provider/patient relationship?
c) Will more lawsuits follow?
Essentials of Correctional Medicine

18. 1. Cast: RN and Program Manager
2. Facts:
a) RN’s experience in corrections
b) Receives notice inmate filed a Board Complaint
c) Inmate later files lawsuit about the same subject
3. Issues:
a) What should be reported to the insurer?
b) Why are inmates permitted to file Board complaints?
c) Who will pay to defend this case?
Essentials of Correctional Medicine

19. Deana Johnson, Esq.
General Counsel
MHM Services, Inc.
djohnson@mhm-services.com
Essentials of Correctional Medicine