Simpkins v. Corr. Corp. of Am., 2007 U.S. Dist. LEXIS 75440, 24-25 (M.D. Tenn. Oct. 10, 2007) states the principle most succinctly: “Taking costs into consideration when providing medical care to prisoners generally does not constitute deliberate indifference.” Inmates often allege that they are denied medical treatment, especially for costly specialty treatment, testing, or surgery, due to the costs. Further, correctional patients often allege that medical staff “told them” that the reason they are denied certain specific medical care, such as Hepatitis C treatment, MRIs, or surgery, is due to “cost.” This creates a thorny issue during the litigation process.
However, the fact that correctional medicine needs to contain costs does not mean that an issue of deliberate indifference is enviably created by the very act of cost containment. The courts recognize the need to manage health care in the present day environment, and even more so when correctional budgets are being stretched. Thus, vague allegations of cost containment are insufficient to create a genuine issue of material fact as to a medical provider’s intentions. Lowe v. Vadlamudi, No. 08-10269, 2009 U.S. Dist. LEXIS 21302, *16 (E.D. Mich. March 16, 2009) states: “Cost control measures initiated by state and local governments by themselves are not unconstitutional. In fact, they are desirable. [The MDOC defendant’s] knowledge of a policy that encourages cost containment does not translate into deliberate indifference to the plaintiff’s medical needs in this case, since there is no suggestion in the pleadings that [the official] was aware of those needs and specifically disregarded them.”
Other circuits also agree that taking costs into consideration does not equate to deliberate indifference. For example, in Brightwell v. Lehman, 2005 U.S. Dist. LEXIS 48050, 22-24 (W.D. Pa. Dec. 5, 2005), where the plaintiff inmate complained he was given a generic substitute, the Court found that “disagreement over which drugs to administer simply does not demonstrate the deliberate indifference necessary to state an Eighth Amendment claim.” The judge went on to state: “This is true even if part of the motivation in providing him a generic drug was cost containment, assuming that, in fact, he actually received a generic substitute. That cost is a factor in the provision of treatment outside the prison walls supports this conclusion. Resources are not infinite and reasonable allocation of those resources, taking into account cost, does not amount to deliberate indifference even if a prisoner does not receive the most costly treatments or his treatment of choice.” (Emphasis added) See also Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999): “it is difficult to generalize, except to observe that the civilized minimum is a function both of objective need [for the particular test or treatment] and of cost. The lower the cost, the less need has to be shown, but the need must still be shown to be substantial.”. Winslow v. Prison Health Servs., 406 F. App’x 671, 674 (3d Cir. 2011) further explains:
More fundamentally, the naked assertion that Defendants considered cost in treating Winslow’s hernia does not suffice to state a claim for deliberate indifference, as prisoners do not have a constitutional right to limitless medical care, free of the cost constraints under which law-abiding citizens receive treatment. See Reynolds v. Wagner, 128 F.3d 166, 175 (3d Cir. 1997) (“[T]he deliberate indifference standard of Estelle does not guarantee prisoners the right to be entirely free from the cost considerations that figure in the medical-care decisions made by most non-prisoners in our society.”); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (“The cost of treatment alternatives is a factor in determining what constitutes adequate, minimum-level medical care, but medical personnel cannot simply resort to an easier course of treatment that they know is ineffective.” (citations omitted)); Caines v. Hendricks, No. 05-1701, 2007 U.S. Dist. LEXIS 9453, 2007 WL 496876, at *8 (D.N.J. Feb. 9, 2007) (“[I]t is not a constitutional violation for prison authorities to consider the cost implications of various procedures, which inevitably may result in various tests or procedures being deferred unless absolutely necessary.”). (Emphasis added)
Even the Supreme Court has held that prisoners are not entitled to “unqualified access to health care.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 117 L.Ed.2d 156 (1992).
The exception to this rule is “when treatment is based solely on costs” (emphasis added) because in that case “deliberate indifference may be established or implicated where the inmate suffers an unnecessary detriment and is harmed in some way,” Martin v. Brooks, 2005 U.S. Dist. LEXIS 45703 (E.D. Va., 2005). This is especially true when prison authorities prevent an inmate from receiving treatment recommended by medical professionals, See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3rd Cir. 1979); see also Verser v. Elyea, 113 F.Supp.2d 1211 (N.D. Ill., 2000), holding that declining to follow recommendations of medical specialist based on cost rose to the level of deliberate indifference.
In the end, courts need to consider whether an inmate has a difference of medical opinion with a medical provider versus deliberate indifference, regardless of whether cost containment was a factor. In Casanova v. Mich. Dep’t of Corr., 2011 U.S. Dist. LEXIS 106871, 7-11, 2011 WL 4374457 ( E. D. Mich. Sept. 20, 2011), the Court explained that “Plaintiff’s allegations simply show that he has a disagreement with the medical procedures that were performed.” Plaintiff wanted his ACL repaired; MDOC physicians determined debridement was better. “Plaintiff has not alleged that the debridement of his ACL was a less effective or riskier procedure; he merely contends that the cheaper of two procedures was performed.” The Court then further stated, “even if Plaintiff’s disagreement could serve as the basis for a valid Eighth Amendment claim, his allegations do not establish that Defendants acted with a culpable subjective intent. The record is replete with facts suggesting that Defendants did plenty to help Plaintiff. Plaintiff had numerous appointments and was provided with a vast amount of medical advice . . .” and had two surgeries. The Court then examined the plaintiff’s claim that “Defendants considered cost when determining the appropriate course of treatment,” noting that “Plaintiff has still not alleged that Defendants wantonly or recklessly disregarded a substantial risk to Plaintiff’s health or safety.” The Court explained that inmates are not entitled to unqualified access to health care, as stated in Hudson, supra, and that in “considering the cost factor, several circuit courts have held that a mere claim that cost was taken into account in denying a prisoner’s medical procedure does not per se establish the subjective component of an Eighth Amendment claim.” Rather, to state “an Eighth Amendment claim, a plaintiff must establish that a defendant performed a medical procedure for the purposes of cost savings with knowledge that the procedure was ineffective.” Conclusory complaints of policies to save money are insufficient to establish a deliberate indifference claim. Rather, “an allegation that cost played a role in a defendant’s deliberate indifference to a medical decision must specifically assert that the defendant knew the alternative procedure was ineffective.” In Cassanova, the Court found that “Plaintiff does not allege that Defendants knew that debridement of the ACL was an ineffective procedure. He merely points out that cost was taken into account by citing one sentence in a Consultation Request . . . Nowhere in his complaint or in his objections does Plaintiff allege that Defendants knew that debridement of the ACL was an ineffective alternative; he simply makes an unsupported statement that cost was the sole reason Defendants performed the debridement procedure.” Therefore, Cassanova’s claim was denied.
Bottom line, if cost containment is the primary basis for a medical decision, knowing the decision amounts to ineffective treatment, the courts or a jury could conclude the treatment option was deliberately indifferent.
Chapman Law Group is a professional health care law litigation firm. For over 25 years CLG has defended the rights of health care professionals, providers and corporations involved in the delivery of health care at all levels. We believe the dedicated men and women who provide health care deserve an exceptional defense when their integrity and actions are called into question.
Ronald W. Chapman is the founder and shareholder of Chapman Law Group. For 30 years Ron has focused his practice in the defense of health care providers of all levels including correctional law, civil rights law, medical malpractice defense, and administrative law at the state and federal level in Michigan and Florida.