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“THE LAW, IN ITS MAJESTIC EQUALITY…

… forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” so goes a famous 19th-century quotation. Seldom was that better illustrated than in Federal Tort Claims Act cases brought by prisoners for medical malpractice.

There was a time I thought that complaints about poor health care in the Federal Bureau of Prisons system could be written off to inmate kvetching. After all, inmates do not want to be where they are, and beyond complaining about the alleged lousy criminal justice system that put them where they are, prisoners naturally complain about every aspect of prison – food, correctional officers, recreational opportunities – that they can conjure. But without a doubt, the principal complaint is that the BOP healthcare system is a disaster.

But I have seen too many cases where this is true. In my estimation, the problem is not that the healthcare itself. When the BOP decides that treatment is needed, that treatment is pretty good (chiefly because the specialists brought in are not government doctors, but local practitioners). As I have written about before, the difficulty is in convincing the people who populate the BOP healthcare establishment that care is needed to begin with.

Those healthcare people usually conclude, as a first line of defense, that an inmate is malingering. I have worked on cases of a guy with a hump that erupted on his shoulder the size of a grapefruit, who asked about it for months only to have BOP physician assistants tell him (without a biopsy) that it was merely a benign lipoma. When the healthcare people grudgingly consented to have it looked at by an outside surgeon, the inmate quickly began chemotherapy, surgery and radiation – in that order – for the liposarcoma it was. I have worked on cases where inmates went blind because the BOP refused to send him for an outside vision test, which would have showed ocular hypertension, and where an inmate lost a leg to diabetes because healthcare staff argued he was lying about what was diabetic neuropathy.

When a prisoner suffers from poor healthcare, he or she may sue for medical malpractice under the Federal Tort Claims Act. An FTCA med-mal suit must be brought after making an administrative claim on a prescribed Department of Justice form, and is governed by the substantive malpractice law of the state in which the care was given or withheld.

As every first-year law student learns, in federal civil procedure – at least where the action is in federal court because of a diversity of citizenship of the parties – federal procedural law (the Federal Rules of Civil Procedure) is followed by the substantive law of the state is followed. While an FTCA action is not a diversity case, courts have ruled that the Federal Rules of Civil Procedure apply nonetheless.

And there’s the rub. In an effort to cut down on worthless med-mal claims, most state rules require that when the complaint is filed, it must be accompanied by an affidavit of an expert that the plaintiff’s cause of action has some merit. This requirement means that inmates have to pony up $2,500 to $5,000 right from jump to hire an expert in order to avoid having their FTCA claims dismissed as soon as they are filed.

That seems fair, right? After all, the requirement applies to all med-mal plaintiffs. The rich and poor alike are required to come up with thousands of dollars in order to even get a foot in the door. Anatole France would be proud – what “majestic equality!”

Last week, two circuits said otherwise. In the 6th Circuit, Dennis Gallivan had surgery while at FCI Elkton. He says the procedure was botched, and left him permanently disabled. Dennis sued under the FTCA.

The district court held that Ohio Civil Rule 10(D)(2) governed. That rule requires a person alleging medical negligence to include a medical professional’s affidavit stating that the claim has merit. Dennis didn’t have such an affidavit (or the spare $2,500-plus needed to get one), so his FTCA suit was thrown out.

Last week, the 6th Circuit reinstated Dennis’ complaint. The Federal Rules do not require such an affidavit, and thus are inconsistent with Ohio’s rule. This inconsistency is important, the Court said, because the Supremacy Clause of the Constitution means that federal rules displace inconsistent state rules, and federal rules govern the FTCA’s application.

Ironically, one of the government’s arguments against Denny’s position was that a 7th Circuit decision, Hahn v. Walsh, had previously held that a state rule requiring an affidavit could coexist with the federal rules that did not require such an affidavit. The 6th rejected that argument, only about 48 hours after a 7th Circuit decision held that Hahn did not apply to the FTCA.

The 7th addressed 735 ILCS § 5/2-622, a state statute that requires the plaintiff in a medical-malpractice suit to file an affidavit stating that “there is a reasonable and meritorious cause” for litigation. . The plaintiff needs a physician’s report to support the affidavit’s assertions. Like the 6th Circuit, the 7th held that because Federal Rules of Civil Procedure 8 did not require such an affidavit, the Illinois statute was inconsistent, and thus did not apply to an FTCA complaint.

The 7th observed that “a prisoner may have insuperable difficulty obtaining a favorable physician’s report before filing a complaint, so if a complaint not accompanied by an… affidavit is defective, many a prisoner will be unable to litigate a malpractice claim. But if a prisoner or other pro se plaintiff has until the summary judgment stage to comply with the state law, information obtained in discovery may allow a physician to evaluate the medical records and decide whether there is reasonable cause for liability.”

These cases are significant. They do not suggest that a prisoner will not need an expert: every med-mal case sooner or later requires one or more. But it does mean that a prisoner can get to the discovery stage of the proceeding, and have a greater likelihood of getting a tort lawyer to pick up the case and expenses, than he or she did before.

Gallivan v. United States, 2019 U.S.App.LEXIS 33304 (6th Cir. Nov. 7, 2019
Young v. United States, 2019 U.S.App.LEXIS 32944 (7th Cir. Nov. 4, 2019)

– Thomas L. Root