A recent dissent by Judge Kelly in an Eighth Circuit civil rights case highlights an interesting fact. Prison inmates (and individuals committed involuntarily to mental health institutions) are the only people in the United States who enjoy a constitutional right to medical care. The dissent came in Avery v. Turn Key Health Clinics LLC. The majority decision affirmed a grant of summary judgment for a bevy of individual and corporate health care providers who failed to get dental care for a jail inmate with an abscessed tooth.

In 1976, as Judge Kelly points out, the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” The Eighth Circuit has since defined a “serious medical need” as “one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Judge Kelly noted that authority as well as circuit precedent recognizing that seriously incompetent care or corner-cutting “can constitute deliberate indifference.”

Mr. Avery had reported that he was suffering from “abscess mouth” when he arrived at a county jail in Arkansas. The condition was noted on a medical intake form. A nurse examined Mr. Avery’s mouth several days after his arrival and found “visual evidence of tooth decay, redness, swelling, and pus surrounding the affected tooth.” She reported that the tooth “was positive to percussion tests.” The private contractor responsible for inmate health care services advised Mr. Avery that it was trying to hire a dentist but did not presently have one on staff. Mr. Avery was given antibiotics and anti-inflammatory medication and provided soft foods.

Mr. Avery never was seen by a dentist during his five-month stay at the county jail. He continually reported to jail officials and medical personnel that the antibiotics and anti-inflammatories were not improving the abscess or relieving his pain. He had difficulty eating and was losing weight.

Eventually, Mr. Avery was transferred to a state prison. A dentist extracted the tooth within a week after his arrival. Judge Kelly observed in a footnote that an abscess is more than a toothache: “It is a bacterial infection of the root of the tooth, and it can spread to the adjacent gum and beyond—way beyond.” She quoted the Mayo Clinic website on the risk presented by Mr. Avery’s condition: “Leaving a tooth abscess untreated can lead to serious, even life-threatening, complications.”

Judge Kelly noted several Eighth Circuit decisions making it clear that the condition of Mr. Avery’s mouth upon arrival at the county jail met the “obviousness” test and presented an objectively serious medical need. In another footnote, again quoting Eighth Circuit precedent, she explained why the contractor’s travails in finding a dentist could not insulate the county from liability for the violation of Mr. Avery’s civil rights: “Where a prisoner needs medical treatment prison officials are under a constitutional duty to see that it is furnished.”

Judge Kelly noted that the standard of review for a grant of summary judgment is de novo and that affirmance is appropriate when the moving party actually has shown “that there is no genuine dispute as to any material fact” and that it is entitled to judgment as a matter of law. She concluded that there was such an issue “as to whether the defendants deliberately disregarded Avery’s serious medical need.”

This dissent also highlights the more pervasive issue of how rigorously the standard of review for summary judgments is being applied. Regrettably from my point of view, the Court chose not to publish its opinions in this case.

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Photo of Michael Gross Michael Gross

Michael Gross is an appellate lawyer in St. Louis, Missouri. In addition to his work in appellate courts, Mr. Gross frequently consults with and performs legal research and writing for trial attorneys before they file suit, during the pendency of their cases in…

Michael Gross is an appellate lawyer in St. Louis, Missouri. In addition to his work in appellate courts, Mr. Gross frequently consults with and performs legal research and writing for trial attorneys before they file suit, during the pendency of their cases in trial courts, and through the mediation process.

Mr. Gross has represented clients in the United States Supreme Court, the Second, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits, and the appellate courts of several states. He previously served as a member of the Eighth Circuit’s civil jury instructions committee.

After graduating from the University of Michigan Law School in 1971 Mr. Gross served as law clerk to the Hon. M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit. He speaks frequently on topics related to appellate practice, legal writing, oral argument, and legal strategy and problem-solving at seminars sponsored by bar associations and other organizations.