Seventh Circuit Removes Qualified Immunity Affirmative Defense for Private Medical Providers in Civil Rights Actions

       Recently, the Seventh Circuit Court of Appeals affirmed a district court’s ruling that private medical staff employed to work in a county jail facility were not entitled to invoke the affirmative defense of qualified immunity in response to a Section 1983 civil rights deliberate indifference claim arising from medical services provided to an inmate.

       In Estate of Clark v. Walker, 865 F.3d 544 (7th Cir. 2017), a jail inmate in Green Lake County, Wisconsin, committed suicide five days after entering the jail. When the decedent entered the jail, he was assessed as being at risk for suicide, however, the intake staff, which was composed of the two defendants, a county officer, and a privately contracted nurse, did not initiate the jail’s suicide watch protocol. The estate of the inmate brought a claim pursuant to 42 U.S.C. § 1983 alleging that the intake staff violated the inmate’s Eighth Amendment rights by acting with deliberate indifference toward his serious risk of suicide.

       The record in Estate of Clark showed that the county officer initiated the intake process after the inmate was admitted to the jail following an arrest for violation of his court supervision. The officer utilized a software program which posed questions to the inmate to estimate suicide risk, which calculated that the inmate was at a risk for suicide, however, testimony from the jail administrator indicated that the assessment itself was not dispositive of the final risk assessment, and officers had discretion to initiate suicide protocol based on other factors. After completing the assessment, the officer placed the inmate in a holding cell to wait for the nurse’s medical intake of him.

       The nurse, who was employed by a company contracted by the jail to provide medical services, performed the medical intake. After the intake, she placed the record of the suicide assessment conducted by the officer in the inmate’s medical chart, but she did not refer him to a mental health counselor or inform the jail staff of the assessment’s suicide risk. Although the inmate was not assigned to a cell designed for suicide prevention, the nurse followed-up with him several times after his initial intake. The inmate committed suicide four nights after his intake by hanging himself in his cell.

       At summary judgment, the intake officer and the nurse asserted an affirmative defense of qualified immunity. Generally, qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The district court denied both defendants’ assertions of qualified immunity and specifically as to the privately contracted nurse, held that she was unable to raise qualified immunity because she was a private contractor, not a government employee.

       The issue considered by the appellate court was whether the nurse was entitled to qualified immunity as a private medical contractor. Before reaching that analysis, however, the Clark Court had to decide whether the nurse, as a private healthcare contractor working in a government-run jail, was entitled to invoke qualified immunity in the first instance.

       In asserting the defense, the nurse in Estate of Clark relied upon the U.S. Supreme Court’s decision in Filarsky v. Delia, 566 U.S. 377 (2012), where the Court considered whether a private lawyer who worked part-time for a municipality could invoke qualified immunity. In Filarsky, a firefighter sued the defendants, the private attorney, and city fire department officials, under 42 U.S.C. § 1983 alleging that they violated the firefighter’s constitutional rights in regard to an internal investigation of the firefighter.

       In reaching its holding, two prior decisions were given strong consideration by the Estate of Clark court. First, was Richardson v. McKnight, 521 U.S. 399 (1997), where the Supreme Court held that privately employed prison guards could not assert qualified immunity. Second, was the Filarsky case asserted by the nurse defendant. In Richardson v. McKnight, 521 U.S. 399 (1997), the Supreme Court considered whether guards employed by a privately run prison facility could seek the protection of qualified immunity. The Richardson court determined that prison guards employed by a private company and working in a privately run prison facility did not enjoy the protection of qualified immunity. In that regard, the Richardson court stated that the various incentives characteristic of the private market ensured that the privately employed guards would not perform their public duties with unwarranted timidity or be deterred from entering that line of work – such factors being among those which are considered supportive of the qualified immunity affirmative defense afforded government employees.

       Looking next to Filarsky, the court in that case noted that Richardson was a “narrow” decision answered only in the context in which it arose, such that its holding was not meant to foreclose all claims of immunity by private individuals. Rather, the court in Richardson highlighted the specific and the particular circumstances in which that case arose: a private firm, organized to assume a major lengthy administrative task of managing an entire correctional institution with limited direct supervision by the government, for profit and potentially in competition with other firms. The court noted that those factors “combined sufficiently to mitigate the concerns underlying recognition of governmental immunity under § 1983.”

       As such, although Richardson did not permit the defendant there to raise qualified immunity, the Richardson decision did leave open the question as to the availability of the defense to the private lawyer in Filarsky. In Filarsky, the court found that the factors present in Richardson were not present in Filarsky. The court stated that although the defendant attorney in that case was not a public employee, he was retained by the municipality to assist in conducting an official investigation into potential wrongdoing, and because government employees performing such work were entitled to seek the protection of qualified immunity the appellate court’s denial of qualified immunity to the attorney was reversed. The Filarsky court also determined that the whether or not the private lawyer could assert qualified immunity in response to a Section 1983 claim was not dependent on whether the individual working for the government was doing so as a full-time employee, or on some other basis. The Filarsky decision, as such, provided a basis upon which privately employed medical staff could assert qualified immunity.

       Returning to Estate of Clark, the recent Seventh Circuit holding noted that Filarsky did not overrule Richardson, but rather found that the Filarsky court reaffirmed the holding of Richardson which had rejected immunity for the private prison employees. The court in Estate of Clark found reliance upon the Filarsky decision by a private medical employee in the corrections setting to be problematic. Estate of Clark pointed out that the court in Filarsky reached its conclusion through a historical inquiry, considering whether the defendant asserting qualified immunity would have been immune from liability under the common law in 1871 when Congress passed the law, which was subsequently codified as Section 1983. The court in Estate of Clark also relied upon a Sixth Circuit opinion which applied Filarsky’s historical analysis and held that a privately employed doctor working for a state prison could not invoke qualified immunity. See McCullum v. Tepe, 693 F.3d 696, 697 (6th Cir. 2012). Relying upon the Sixth Circuit’s reasoning and looking to other post-Filarsky cases, the court in Estate of Clark held that private medical personnel in prisons are not afforded qualified immunity.

       The Filarsky decision had been one of the more supportive cases in this Circuit upon which privately contracted providers performing government functions had relied in asserting the qualified immunity affirmative defense. In considering the Filarsky nurse’s argument, however, the Seventh Circuit in Estate of Clark noted that cases in their Circuit decided subsequent to Filarsky held that qualified immunity was not available as a defense to such private contractors. The court specifically cited to the recent Seventh Circuit decision in Petties v. Carter, 836 F.3d 722, 734 (7th Cir. 2016), which held that qualified immunity does not apply to private medical personnel in prisons. The court also cited to the case Shields v. Illinois Dep’t of Corrections, 746 F.3d 782, 794 (7th Cir. 2014), where the Seventh Circuit stated that it had construed the Supreme Court’s precedent that employees of privately-operated prisons may not assert a qualified-immunity defense also to deny that defense to employees of private corporations that contract with state-run facilities to provide medical care for prisoners.

       Estate of Clark seems to have provided the Seventh Circuit’s current position on the issue of qualified immunity for privately employed medical providers. However, this issue has not yet been squarely considered by the U.S. Supreme Court, and so qualified immunity for private medical providers may continue to be considered by defendants until the Supreme Court has decided this critical defense.

Ron Neroda

Ron Neroda

Ronald E. Neroda is a partner in the firm's Chicago office and is engaged in the practice of civil litigation with a primary emphasis in defending cases involving medical malpractice, premises liability, transportation, civil rights claims, and product liability. Mr. Neroda has successfully defended clients in areas of commercial litigation and construction litigation. He has also successfully defended medical malpractice clients in a variety of medical fields.

Mr. Neroda graduated cum laude from The John Marshall Law School in 2008. He is currently a member of the John Marshall Law School Alumni Association. While in law school, he received dean's list honors and membership on The John Marshall Law Review. Mr. Neroda previously served as a judicial extern for the United States District Court, Northern District of Illinois. He also worked as a research assistant for The John Marshall Law School Veterans Legal Support Clinic. Mr. Neroda holds a Bachelor of Science degree in business from Indiana University, Kelley School of Business, with a concentration in finance.

Mr. Neroda is a member of the Illinois Bar and is also admitted to practice before the United States District Court, Northern, Central, and Southern Districts of Illinois. He has been published in the Chicago Bar Association Tort Litigation Committee’s Tort Reporter and has spoken before insurance clients on defense of negligence actions on behalf of insureds.

Mr. Neroda’s community involvement includes membership on the Leadership Board of the Big Brothers Big Sisters of Metropolitan Chicago and the PAWS Chicago Professional Board.