Posted by Jennifer L. Langen
The recent case of Hedgepath v. Pelphrey, Sixth Circuit Court of Appeals Case No. 12-5314, has onerous practical ramifications for deputy jailers, their supervisors, and jails.
A deputy jailer must be intimately familiar with his jail’s policy regarding the provision of medical care to inmates. In particular, he must know whether a certain condition triggers a certain response. And, if the existence of those conditions is a factual question that can be resolved through objective means, the deputy jailer must employ the objective means each time he checks on an inmate to determine whether the condition exists. If the condition exists, he must provide the response specified in the policy.
For example, in Hedgepath, consistent with 501 KAR 3:060, the jail’s policy required deputy jailers to check on intoxicated inmates every twenty minutes to determine whether they needed emergency medical attention. However, the policy went farther than the Regulations and specified “unconsciousness” as one of several conditions that required emergency medical attention. As many deputy jailers are trained to do, the deputy jailers in Hedgepath had looked through a window in the cell door and tapped on the glass to try and elicit a response, but did not awaken the inmate to determine whether he was unconscious or merely sleeping. The Court ruled that those actions were insufficient. Rather, the Court said that “whether an individual is unconscious – as opposed to sleeping or dead – is an objective factual question that can be resolved by, for example, attempting to wake the individual.”
The implication of this ruling, combined with applicable Regulations is that a deputy jailer who encounters a sleeping inmate on his rounds must awaken that inmate at twenty-minute intervals or risk liability under Hedgepath. This is an impractical requirement on many levels. A deputy jailer encounters numerous sleeping inmates at all hours of the day. If he is required to enter cells and physically awaken each inmate every twenty minutes, his rounds will take longer, such that it may be impossible for him to reach every inmate in the jail at the intervals required by Regulation. In addition, to ensure the safety of the deputy jailer who is now required to enter cells where he is outnumbered and to awaken inmates who will not appreciate the intrusion upon their sleep, it will be necessary to send a second deputy jailer to perform rounds. Many jails currently only schedule three or four deputy jailers to work a shift; therefore, in such jails, two-thirds to one-half of the staff will be busy performing rounds at any given time. Moreover, this requirement is likely to encourage violence on the part of inmates against guards and other inmates, as those whose sleep is interrupted every twenty minutes become increasingly agitated and volatile.
The Court’s reasoning could extend to conditions other than “unconsciousness” that, under jail policy, require a specific type of response. For example, where a jail policy requires a deputy jailer to summon emergency medical attention when an inmate complains of chest pain, a deputy jailer arguably has a ministerial duty to initiate such an emergency medical protocol every time an inmate complains of chest pain, or risk liability under Hedgepath. There are obvious practical problems with this type of requirement. Given the number of inmates who complain about chest pain, or who will complain about chest pain once they find out that an ambulance will be called automatically, a jail will be calling 911 constantly. And, every time emergency responders transport an inmate to the hospital, a member of the jail’s staff must accompany the inmate to the hospital, thereby decreasing the number of jail staff available to ensure the security of the jail and the well-being of the inmates housed therein.
Supervisors must also be specifically aware of their jail’s policy with respect to the provision of medical care to inmates. If the policy calls for deputy jailers to provide a specific response to a specific condition, supervisors must train their subordinates to employ objective means of determining whether the condition exists and to provide the specified response. For example, Hedgepath is very clear that, if the policy requires a deputy jailer to initiate an emergency medical protocol in the event an inmate is unconscious, a supervisor must train his subordinates to awaken a sleeping inmate every twenty minutes to distinguish a sleeping inmate from an unconscious one. The supervisor must also train his subordinates to initiate an emergency medical protocol in the event that a sleeping inmate does not respond to efforts to awaken him. In addition, to avoid liability on a negligent supervision claim, supervisors must take steps to ensure that their subordinates are acting in a manner consistent with their training, and must discipline any who are not.
The liability of the jail itself was not specifically at issue in Hedgepath. Nonetheless, in light of Hedgepath, jails should carefully consider how their policies are written. Many jails have adopted policies regarding the medical care of inmates that set forth a list of conditions (e.g., severe bleeding, trouble breathing, chest pain, unconsciousness, etc.) and state that deputy jailers must provide an emergency medical response when those conditions exist. Those policies are intended for the benefit of inmates, because they provide deputy jailers – most of whom have limited medical training – with better guidance in the face of a potential emergency.
However, Hedgepath implies that the more specific a jail’s policy is with respect to the medical care of inmates, the more likely the policy will serve as a source of ministerial duties for future courts. Conversely, the more general a jail’s policy, the more discretion it tends to afford its deputy jailers and supervisors. And, the more discretion deputy jailers and supervisors have, the more likely they will be able to defend negligent medical care claims on the basis of qualified official immunity. This leads to a ridiculous irony: Well-intentioned jails that try and afford more guidance to their deputy jailers for the benefit of inmates may be unwittingly depriving their deputy jailers of a qualified official immunity defense should an inmate bring a claim premised on allegedly negligent medical care. Thus, jails are forced to choose between specific policies that are intended for the benefit of inmates, and more general policies that tend more to benefit deputy jailers.
Until Hedgepath is revisited by another court, jails that wish to afford their employees the most protection possible should seriously consider abandoning specificity in their inmate medical care policies in favor of policies that generally require deputy jailers to initiate an emergency medical protocol when circumstances are such that, in the deputy jailer’s estimation, a medical emergency exists.