General Information Only. This article is for general informational purposes and does not constitute legal advice. Laws may have changed since publication. Your situation may differ; consult a licensed Virginia attorney about your specific matter.
The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed Virginia attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.
Many jails do not employ their medical staff. Care is contracted to a private company, and the nurses and physicians a person in custody sees work for that company rather than for the sheriff.
A natural assumption follows: that a private employer places its staff outside constitutional claims, which apply to government actors. That assumption is wrong, though the correct answer is more complicated than simply substituting the company for the government.
Private Medical Staff Act Under Color of State Law
Section 1983 reaches conduct “under color of” state law. In West v. Atkins, 487 U.S. 42 (1988), the Supreme Court held that a physician under contract with the state to provide medical services to inmates “acted under color of state law for purposes of § 1983 when undertaking his duties in treating petitioner’s injury.”
The Court’s reasoning was functional. What controls is “the physician’s function within the state system, not the precise terms of his employment.” And the Court was direct about the consequence: “[c]ontracting out prison medical care does not relieve the State of its constitutional duty.”
So the individual nurse, physician, or physician assistant employed by a contractor may be a proper defendant in a Section 1983 claim, on the same standard that would apply to a government-employed clinician.
Suing the Company Is a Separate Question
Establishing that a contractor’s employees act under color of state law does not establish that the company answers for what they do.
West addressed state action, not entity liability. The Supreme Court in that case noted the rule from Monell v. Department of Social Services, 436 U.S. 658 (1978), that there is no respondeat superior liability under Section 1983. Monell holds that “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents,” and that liability attaches only “when execution of a government’s policy or custom… inflicts the injury.”
Applied to a medical contractor, that ordinarily means a claim against the company requires identifying a policy or practice of the company that caused the harm — a staffing decision, a formulary rule, a protocol governing when someone is sent out for evaluation — rather than the conduct of one employee on one shift.
What This Means in Practice
Three points follow, and they are frequently confused with one another.
The individual clinician may be sued on the ordinary deliberate indifference standard, regardless of who signs their paycheck.
The company may be sued, but generally requires a policy or custom rather than a single employee’s conduct.
The county or sheriff’s office is a separate defendant with the same Monell requirement, and contracting the work out does not relieve it of its constitutional duty, as West states.
Which of these is available in a given situation depends on facts about the contract, the company’s written protocols, and what the records show — and the analysis for each is different.
Standards and Procedure
The underlying constitutional standard does not change because a defendant is private. Estelle v. Gamble, 429 U.S. 97 (1976), prohibits deliberate indifference to serious medical needs while excluding negligence and malpractice. For a pretrial detainee, Short v. Hartman, 87 F.4th 593 (4th Cir. 2023), removed the requirement of subjective knowledge, while preserving the floor: “Negligence was not enough before, and it is not enough now.”
The Prison Litigation Reform Act requires exhaustion of available administrative remedies before suit, 42 U.S.C. Section 1997e(a), and Virginia’s filing deadlines run on more than one clock.
Conclusion
Contracting jail medical care to a private company does not place that care beyond constitutional review. West v. Atkins establishes that the clinicians act under color of state law, and that the government does not shed its duty by outsourcing.
Suing the company itself is a different matter, requiring a policy or custom rather than an employee’s conduct. Where a violation is proven, damages may be recoverable and other relief may be available, though nothing follows automatically from establishing liability. Which defendants are available in particular circumstances is a question requiring individualized legal analysis.
This article is general information only and is not legal advice. Laws change and individual circumstances vary, and outcomes depend on the specific facts of each situation. Do not rely on this article to make decisions about your specific situation; contact Valley Legal or a licensed Virginia attorney to discuss your case. Reading this article does not create an attorney-client relationship, nor does contacting our office through this website or any other means. Attorney advertising.
Valley Legal, PLLC is located at 107 Pepper St SE, Christiansburg, Virginia 24073, and serves the communities of the New River Valley of Virginia, including Montgomery County, Blacksburg, Radford, Pulaski County, Floyd County, and Giles County.