Brad Taylor, The Constitutionalization of Medical Malpractice in the Seventh Circuit, 2022 Wis. L. Rev. 740 (2022).
Abstract
The tortious act of providing inadequate medical care may be a source of civil liability in several ways, depending on the context and setting in which the inadequate care was provided. If the inadequate medical care was administered to a state or federal prisoner, that prisoner might have a valid claim under both a state medical malpractice law2 and the Eighth Amendment to the U.S. Constitution. Alternatively, a healthcare professional treating a pretrial detainee may be liable for medical malpractice and for an impermissible deprivation under the Fourteenth Amendment Due Process Clause. The multiple causes of action, however, are based on separate and distinct legal theories. Medical malpractice sounds in negligence, while an Eighth Amendment claim is reserved for deliberate indifference amounting to the “unnecessary and wanton infliction of pain.” As the Supreme Court made clear in Farmer v. Brennan, the Estelle Court intentionally described the standard as deliberate indifference in order to distinguish it from common negligence. Similarly, the standard for proving a Fourteenth Amendment violation requires a greater showing than mere negligence. Besides the legal jargon separating the causes of action, what is the practical distinction between constitutional claims of inadequate medical care and medical malpractice?
