¹ Unless explicitly indicated otherwise or the context so requires, the term “states” includes the federal government, the states, and local governmental entities.

² All three of these groups also have common law and statutory rights to medical care. See infra notes 24-26 and accompanying text for a discussion of prisoners’ and pretrial detainees’ common law rights and note 13 for a discussion of prisoners’ statutory rights. For two reasons, this Article examines only the constitutional issues involved. First, prisoners usually bring their suits under the Eighth Amendment. See Damon, Martin, State Prisoners’ Rights to Medical Treatment: Merely Elusive or Wholly Illusory?, 8 BLACK LJ. 427, 427 (1983).Google Scholar Second, the constitutional standard establishes the required minimum for delivery of medical care to individuals in state custody. See Estelle v. Gamble, 429 U.S. 97 (1976).

³ Nexon, A Health Care Cost Control, in HEALTH CARE AGENDA FOR THE STATES 55 (1985) (noting that, since 1960, medical care costs have risen at four times the general inflation rate). See generally Kenneth R., Wing, American Health Policy in the 1980s, 36 CASE W. RES. L. REV. 608 (1986).Google Scholar

⁴ Robert, Pear, A Double Dose of Pain for the Poor, N.Y. TIMES, Apr. 7, 1991, § 4, at 1.Google Scholar

⁵ See Defendant's Answer at 2, Alliance for the Mentally Ill of Pennsylvania, Inc. v. White, No. 90-6389 (E.D. Pa. filed Oct. 4, 1990; Answer filed Nov. 9, 1990).

⁶ Clozapine costs approximately $5,000 per person annually. See Michael, Winerip, To Some, Hope Is Just a Drug Too Far Away, N.Y. TIMES, Aug. 9, 1992, § 1, at 41.Google Scholar

⁷ Defendant's Answer at 2, Alliance for the Mentally Ill of Pennsylvania, Inc. v. White, No. 90-6389. On January 16, 1991, the State decided to make clozapine available where medically needed. Alliance for the Mentally Ill of Pennsylvania, Inc. v. White, 1991 U.S. Dist. Lexis 15994, *1 (Nov. 5, 1991) (concerning attorneys’ fee petition).

Other high-cost medical treatments and procedures that states may be reluctant to provide include organ transplants, neurosurgery, kidney dialysis, chemotherapy, psychological/psychiatric therapy, and drug therapies for individuals with human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS). These high-cost treatments and procedures include one-time surgical procedures, ongoing, long-term treatments, emergency treatments, and treatments for conditions that are less time-sensitive. For the purpose of this Article, the duration of treatment is irrelevant except insofar as it indicates differences in the ability of the prisoner, pretrial detainee, or involuntarily committed person to meet her own medical needs after being released from state custody. See infra notes 90-91 and accompanying text.

⁸ The Eighth Amendment of the United States Constitution states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST., amend. VIII.

⁹ Stuart B., Klein, Prisoners’ Rights to Physical and Mental Health Care: A Modem Expansion of the Eighth Amendment's Cruel and Unusual Punishments Clause, 7 FORDHAM URB. L.J. 1, 2 (1978)Google Scholar; Anthony F., Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 CALIF. L. REV. 839, 842 (1969).Google Scholar

¹⁰ See, e.g., Weems v. United States, 217 U.S. 349, 377 (1910) (striking down a fifteen-year hard labor sentence as excessive punishment for the crime of falsifying public documents).

¹¹ Trop v. Dulles, 356 U.S. 86, 100-01 (1958).

¹² 429 U.S. 97 (1976).

¹³ Id. at 101. While the vast majority of states have statutes that obligate them to provide medical care to prisoners, these obligations vary significantly from state to state. See Carlene Gatting, Carraba, Prisoners’ Constitutional Right to Medical Treatment: A Right Without Substance?, 7 NEW. ENG. J. PRISON L. 341, 352 n.52 (1981)Google Scholar; Michael H., Slutsky, The Rights of Prisoners to Medical Care and the Implications for Drug-Dependent Prisoners and Pretrial Detainees, 42 U. CHI. L. REV. 705, 708-09 (1975).Google Scholar

¹⁴ Estelle, 429 U.S. at 103. Prisoners have also brought claims for inadequate medical care under the Due Process Clause. See, e.g., Runnels v. Rosendale, 499 F.2d 733, 736 (9th Cir. 1974); Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972). The standard of review for Due Process claims is the same as that for Eighth Amendment claims. See, e.g., Westlake v. Lukas, 537 F.2d 857, 860 (6th Cir. 1976). Most claims, however, are brought under the Eighth Amendment. See Martin, supra note 2, at 427.

Prisoners’ constitutional claims that allege inadequate medical care are usually brought in federal court under 42 U.S.C. § 1983, which subjects any person who, under color of state law, deprives another person of her federal constitutional or statutory rights to damages or an injunction. See 42 U.S.C. § 1983 (1981). See ako Victoria P. Pappas, In Prison with AIDS: The Constitutionality of Mass Screening and Segregation Policies, 1988 U. I I I . L. REV. 151, 163.

¹⁵ Estelle, 429 U.S. at 103-04 (quoting Spicer v. Williams, 132 S.E. 291, 293 (N.C. 1926)).

¹⁶ The Estelle Court noted that almost all of the Courts of Appeal had held that negligence alone did not amount to an Eighth Amendment violation. Id. at 106 n.14. See, e.g., Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (“deliberate indifference“); Newman v. Alabama, 503 F.2d 1320, 1330 n.14 (5th Cir. 1974) (“callous indifference“). But see Russell v. Shaffer, 528 F.2d 318, 318 (4th Cir. 1974) (accepting a “reasonable medical care” standard).

¹⁷ Estelle, 429 U.S. at 104-05. Recently, the Court has used the terms “subjective” and “objective” to refer to the deliberate indifference prong and the serious medical needs prong, respectively. See Hudson v. McMillian, 112 S. Ct. 995, 999 (1992); see also Wilson v. Seiter, 111 S. Ct. 2321, 2326 (1991).

¹⁸ Wilson, III S . Ct. at 2323.

¹⁹ Estelle, 429 U.S. at 106 (footnote omitted).

²⁰ 428 U.S. 153 (1976).

²¹ Id. at 173 (citing Furman v. Georgia, 408 U.S. 238, 392-93 (Burger, C.J., dissenting)).

²² Estelle, 429 U.S. at 103.

²³ The Court clearly made this point in a 1986 decision:

It is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.

Whitley v. Albers, 475 U.S. 312, 319 (1986).

²⁴ Wilson v. Seiter, 111 S. Ct. 2321,2324-27 (1991). The Court has treated claims of excessive use of force by prison officials somewhat differently. Noting that use of force by prison officials usually involves situations in which there is a need to maintain or restore prison security that must be balanced against the inmate's interest in not being injured, the Court has given prison officials a bit more leeway in these situations than in the medical care or conditions-ofconfinement contexts, in which there is no legitimate competing institutional interest. See infra notes 42-45 and accompanying text. The Court has held that the Eighth Amendment is violated only if the force was used not in a “good faith effort to maintain or restore discipline,” but “maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21 (citation omitted). Because of this enhancement (in comparison to “deliberate indifference“) in the “subjective” standard, the Court recently held that a claim of excessive force by prison officials need not allege serious injuries resulting from the force. Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992).

²⁵ Spicer v. Williamson, 132 S.E. 291, 293-94 (N.C. 1926); State ex rel Morris v. Nat'l Surety Co., 39 S.W.2d 581, 583 (Tenn. 1931) (finding a cause of action where sheriff failed to furnish “prompt and proper medical and surgical attention and services” to a detainee in his custody); see also Indiana ex rel Tyler v. Gobin, 94 F. 48, 48-50 (D. Ind. 1899) (holding that sheriff was under an obligation to exercise reasonable care for the preservation of the “life and health” of his prisoner and that sheriff was negligent for, among other things, not resuscitating the prisoner after an angry mob took the prisoner and hung him); Ex parte Jenkins, 58 N.E. 560, 561 (Ind. Ct. App. 1900).

²⁶ See Gobin, 94 F. at 50 (requiring the jailer to exercise “ordinary and reasonable care“); accord Jenkins, 58 N.E. at 561; Morris, 39 S.W.2d at 583. But see Moxley v. Roberts, 43 S.W. 482, 482-83 (Ky. Ct. App. 1897) (sustaining lower court's jury instruction that required sheriff to have knowledge of the prisoner's medical care needs before liability could be found).

²⁷ This Article focuses on prisoners’ medical care rights in a relatively limited factual setting— that in which a physician has already entered the picture. The Article only examines the state's ability to reject the high-cost treatment that the diagnosing physician has prescribed and the state's ability to influence the physician to consider cost when prescribing treatments.

This Article, therefore, expresses no position on claims that Estelle's “deliberate indifference to serious medical needs” standard and lower court interpretations thereof insulate prison officials from liability for constitutional torts, with the result that prisoners’ serious medical problems often go untreated. See, e.g., Susan D. Brenner & David M. Galanti, Prisoners’ Rights to Psychiatric Care, 21 IDAHO L. REV. 1, 29-30 (1985).

²⁸ See, e.g., Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert, denied, 486 U.S. 1006 (1988); Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977); see also Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977). Since this Article is concerned with the state's ability to withhold treatment based on cost considerations, it will hypothesize that a serious medical condition exists.

The following conditions have been held to be “serious“: a broken arm (Loe v. Armistead, 582 F.2d 1291, 1296 (4th Cir. 1978), cert, denied, 446 U.S. 928 (1980)); a broken nose (Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 759-60 (7th Cir. 1988)); transsexualism (White v. Farrier, 849 F.2d 322, 325, 327 (8th Cir. 1988)); severe muscle cramps (East v. Lemons, 768 F.2d 1000, 1001 (8th Cir. 1985)); asthma coupled with allergy (McDaniel v. Rhodes, 512 F. Supp. 117, 118, 120 (S.D. Ohio 1981)).

The following conditions were held not to be “serious“: irritation due to shaving (Shabazz v. Barnauskas, 790 F.2d 1536, 1538 (11th Cir. 1986), cert, denied, 479 U.S. 1011 (1986)); desire to lose weight (Shaw v. Jones, 344 S.E.2d 321, 323 (1986)); desire for outdoor exercise (Jones v. Diamond, 594 F.2d 997, 1013 (5th Cir. 1979), cert, dismissed, 453 U.S. 950 (1981)); need for eyeglasses for minor visual problem (Borrelli v. Askey, 582 F. Supp. 512, 513 (E.D. Pa.), aff'd, 751 F.2d 375 (3d Cir. 1984)).

As part of this “serious” requirement, many lower courts have also required prisoners to show that the inadequate medical care exposed the prisoner to unnecessary pain or injury. See Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976) (requiring that a prisoner allege “that the prison authorities have denied reasonable requests for medical treatment in the face of an obvious need for such attention where the inmate is thereby exposed to undue suffering or the threat of tangible residual injury.” ); see also Laaman, 437 F. Supp. at 311. The common element of the “serious” requirement in these cases is that the prison official's behavior negatively affected the prisoner (if only by way of creating a risk of harm). If the disease is incurable or not amenable to relief, the inaction of prison officials cannot be said to expose the prisoner to any harm. See Bowring, 551 F.2d at 47.

While some courts disagree about exactly which conditions are serious, this Article posits that states will attempt to avoid providing treatments that are prescribed for “serious” conditions. States will presumably object only to high-cost treatments, and high-cost treatments are, as a general rule, prescribed for obviously serious (often life-threatening) conditions (e.g., organ failures, cancer, AIDS). See, e.g., Marsha F., Goldsmith, Critical Moment at Hand in HIV/AIDS Pandemic, New Global Strategy to Arrest Its Spread Proposed, 268 JAMA 445, 446 (1992)Google Scholar (estimating that treating one AIDS patient for one year with AZT will cost about $2,500); Bruce E., Hilner et al., Efficacy and Cost-Effectiveness of Autologous Bone Marrow Transplantation in Metastatic Breast Cancer, 267 JAMA 2055, 2055 (1992)Google Scholar (estimating that the per-patient cost of autologous bone marrow is between $50,000 and $200,000).

²⁹ Estelle, 429 U.S. at 105 (holding that deliberate indifference could be “manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed“) (footnotes omitted, emphasis added); Inmates of Allegheny City Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979); Bowring, 551 F.2d at 47; Jorden v. Farrier, 788 F.2d 1347, 1348 (8th Cir. 1986); Payne v. Lynaugh, 843 F.2d 177, 178-79 (5th Cir. 1988) (per curiam).

³⁰ Basing the constitutional right on the decision of a professional in a situation in which expertise is required is not uncommon in constitutional jurisprudence. See Youngberg v. Romeo, 457 U.S. 307, 321-23 (1982) (holding that the substantive due process right of the committed mentally retarded to rehabilitation and to liberty is defined by what the professional on the scene prescribes); Parham v. J.R., 442 U.S. 584, 607 (1979) (holding that a child is entitled to the procedural safeguard of a staff physician's investigation prior to psychiatric commitment). See also MARK, TUSHNET, RED, WHITE AND BLUE 214-46 (1988)Google Scholar for a discussion of the trend toward defining constitutional rights according to professional decisions.

³¹ Estelle, 429 U.S. at 104 n.10 (“doctor's choosing the ‘easier and less efficacious treatment’ of throwing away the prisoner's ear and stitching the stump may be attributable to ‘deliberate indifference … rather than an exercise of professional judgment’ “ (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974))).

³² Id.

³³ Id. at 106.

³⁴ Id. at 104; White v. Napoleon, 897 F.2d 103, 109-11 (3d Cir. 1990) (noting that, although a claim of negligence did not state a cause of action under the Eighth Amendment, repeated use of drugs without a valid medical reason, despite prisoners’ complaints of pain, did).

Some lower courts have implied that the treatment must actually fall within the professionally accepted range of treatments to be constitutionally valid. See, e.g., U.S. v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987) (requiring “the provision of adequate services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards“); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (entitling prisoner to psychiatric treatment where a doctor, “exercising ordinary skill and care,” determines that the prisoner has a serious disease that can be cured or substantially alleviated, and that the potential for harm if the treatment is delayed or denied is substantial). To the extent that these cases subject the state to Eighth Amendment liability based on negligence, they are at odds with Estelle.

³⁵ Courts have suggested that lack of funds does not excuse a failure to remedy constitutional violations. See Monmouth Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 336 n.17 (3d Cir. 1987), cert, denied, 486 U.S. 1006 (1988). The real question, however, is whether financial concerns can be considered in determining the constitutional obligation, not whether they can be considered in remedying a constitutional violation. While Monmouth does not address this distinction, it clearly rejects consideration of financial concerns in defining the constitutional right, as well as in determining whether the state must remedy a constitutional violation. See id. at 336- 37; see also Ancata v. Prison Health Services, Inc., 769 F.2d 700, 705 (11th Cir. 1985); Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991).

³⁶ 774 F.2d 1567 (11th Cir. 1985), cert, denied, 475 U.S. 1096 (1986).

³⁷ Id. at 1573; accord Battle v. Anderson, 594 F.2d 786, 792 (10th Cir. 1979) (citations omitted) (” ‘constitutional treatment of human beings confined to penal institutions … is not dependent upon the willingness or the financial ability of the state to provide decent penitentiaries’ “); Wright v. Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) (“costs cannot be permitted to stand in the way of eliminating conditions below Eighth Amendment standards“); Newman v. Alabama, 559 F.2d 283, 286 (5th Cir. 1977), cert, denied, 438 U.S. 915 (1978).

³⁸ 424 U.S. 319 (1976).

³⁹ Id. at 335.

⁴⁰ Trop v. Dulles, 356 U.S. 86, 101 (1958); Gregg v. Georgia, 428 U.S. 153, 173, reh’g denied, 429 U.S. 875 (1976); McCleskey v. Kemp, 481 U.S. 279, 300 (1987).

⁴¹ Trap, 356 U.S. at 100; McCleskey, 481 U.S. at 300.

⁴² Bell v. Wolfish, 441 U.S. 520, 547 (1979).

⁴³ Whitley v. Albers, 475 U.S. 312, 320-22 (1986).

⁴⁴ Id.

⁴⁵ Id.; Estelle, 429 U.S. at 103. Hence, judicial deference to prison authorities’ security expertise, known as the “hands-off” doctrine, is generally unwarranted in the medical care context. Cf. Procunier v. Martinez, 416 U.S. 396, 404-05 (1974) (explaining the basis of the hands-off doctrine and noting the doctrine's inapplicability where valid constitutional claims exist).

⁴⁶ Bell, 441 U.S. at 535 n.16.

⁴⁷ City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).

⁴⁸ Bell, 441 U.S. at 535.

⁴⁹ Id. at 539.

⁵⁰ City of Revere v. Massachusetts Gen. Hosp., 463 U.S. at 244.

⁵¹ See Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987) (noting that, while pretrial detainees have not been convicted of crimes, a determination has been made that there is probable cause to believe they have committed crimes); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986); Hamm v. Dekalb County, 774 F.2d 1567, 1574 (11th Cir. 1985), cert, denied, 475 U.S. 1096 (1986).

⁵² Matzker v. Herr, 748 F.2d 1142, 1147 (7th Cir. 1984); Zingmond v. Harger, 602 F. Supp. 256, 259-60 (N.D. Ind. 1985); see also Boring, 833 F.2d at 478 (Gibbons, J., dissenting) (arguing that equating pretrial detainees’ and prisoners’ rights abandoned the “hoary presumption of innocence” that pretrial detainees enjoy).

⁵³ 457 U.S. 307 (1982).

⁵⁴ Id. at 324.

⁵⁵ Id.

⁵⁶ Id. at 321-22.

⁵⁷ The state in Youngberg acknowledged its responsibility to provide medical care to its committed mentally retarded population, but claimed that it was under no constitutional duty to provide rehabilitation. Id. at 315. Thus, it is possible to interpret this statement as not referring specifically to medical care.

⁵⁸ 833 F.2d 468 (3d Cir. 1987).

⁵⁹ Id. at 472.

⁶⁰ It is possible that there are three different standards, with the level of constitutional rights increasing from prisoners to pretrial detainees to the involuntarily committed.

⁶¹ See supra notes 16-17 and accompanying text.

⁶² See supra notes 27-35 and accompanying text.

⁶³ 457 U.S. 307 (1982).

⁶⁴ Id. at 323 (footnotes omitted). This standard does not include cost considerations.

⁶⁵ In contrast, Baldridge v. Clinton, 674 F. Supp. 665 (E.D. Ark. 1987), which involved the medical care rights of civilly committed persons, explicitly held that “treatment and placement must be determined by a qualified professional based upon medical and psychological criteria,” not upon the availability of resources. Id. at 670.

⁶⁶ See Youngberg, 457 U.S. at 324.

⁶⁷ 474 U.S. 327 (1986).

⁶⁸ Id. at 328.

⁶⁹ Pretrial detainees and the involuntarily committed could enjoy greater medical care rights than prisoners if they were not required to have a “serious” medical condition to trigger the state's obligation. See supra note 16 and accompanying text. Nevertheless, even if this were the case, its only significance would be, by definition, in non-serious medical cases. Thus, any difference in medical care rights among prisoners, pretrial detainees, and the involuntarily committed is of very limited importance.

⁷⁰ DeShaney v. Winnebago County Dep't of Social Svcs., 489 U.S. 189, 199-200 (1989).

⁷¹ As the DeShaney Court stated:

The rationale for this principle [that the state must provide certain services to those in its custody] is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and The Due Process Clause… . The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf.

Id. at 200 (citations to Estelle and Youngberg omitted).

⁷² Moreover, the Court's language in describing the prohibitions of the two provisions underscores their similarity. Compare Rochin v. California, 342 U.S. 165, 172 (1952) (only “conduct that shocks the conscience” violates the Due Process Clause), with Estelle, 429 U.S. at 106 (only conduct “repugnant to the conscience of mankind” is prohibited by the Eighth Amendment).

⁷³ Whitley v. Albers, 425 U.S. 316, 327 (1986).

⁷⁴ 833 F.2d 468 (3d Cir. 1987).

⁷⁵ id. at 472.

⁷⁶ Id. at 478.

⁷⁷ 417 U.S. 817 (1974).

⁷⁸ Id. at 822.

⁷⁹ 452 U.S. 337 (1981).

⁸⁰ Id. at 347.

⁸¹ Estelle, 429 U.S. at 103. Thus, with respect to the issue of entitlement to medical care, the fact that a prisoner is guilty of a heinous crime (e.g., murder) and an involuntarily committed individual is entirely innocent of any crime is irrelevant. In fact, if the individual is serving a life sentence, he might be entitled to medical treatments that the involuntarily committed individual is not entitled to because the prisoner, unlike perhaps the involuntarily committed individual, will not be able to supply his own medical needs when he leaves state custody. See infra notes 92-94 and accompanying text.

While denial of medical care usually serves no valid penological purpose, the Court has recently stated that only denial of medical care for “serious” needs violates the Eighth Amendment “because society does not expect that prisoners will have unqualified access to health care.” Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992). This statement could be interpreted to mean that denial of medical care for non-serious medical conditions does in fact have a legitimate penological goal (i.e., punishment). This is, however, certainly not the case when serious medical needs are present, and it is such situations with which this Article deals.

⁸² Rhoades, 452 U.S. at 348.

⁸³ See supra notes 48-50 and accompanying text.

⁸⁴ The Monmouth court was sensitive to this distinction. It concluded that, while “the constitutional standards governing the general conditions of confinement for pretrial detainees and sentenced inmates differ, the standards governing the provision of medical care to each of these inmate classes are similar.” Monmouth Correctional Inst. Inmates v. Lanzano, 834 F.2d 326, 346 n.31 (3d Cir. 1987) (emphasis added), cert, denied, 486 U.S. 1006 (1988).

⁸⁵ See supra notes 35-37 and accompanying text.

⁸⁶ 551 F.2d 44 (4th Cir. 1977).

⁸⁷ Id. at 47-48; accord Hamm v. Dekalb County, 774 F.2d 1567, 1573 (11th Cir. 1985), cert, denied, 475 U.S. 1096 (1986); Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987), cert, denied, 485 U.S. 991 (1988).

⁸⁸ 774 F.2d 1567 (11th Cir. 1985), cert, denied, 475 U.S. 1096 (1986).

⁸⁹ 833 F.2d 468 (3d Cir. 1987), cert, denied, 485 U.S. 991 (1988).

⁹⁰ See supra note 50 and accompanying text.

⁹¹ See supra notes 27-29 and accompanying text.

⁹² The Boring court seemed to subscribe to this analysis:

Another factor that has a bearing on the appropriate standard is the general expectation that pretrial incarceration is to be relatively brief. Consequently, whether elective surgery should be performed before an inmate's trial or delayed until after he has been released or confined as a convicted criminal is a pertinent consideration. As the court pointed out in Hamm, 774 F.2d at 1573, the local government's interest in limiting cost of detention justifies providing no more than a reasonable level of medical care.

Boring, 833 F.2d at 473.

⁹³ 551 F.2d 44 (4th Cir. 1977).

⁹⁴ “We see no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.” Id. at 47. The vast majority of courts support this position. See, e.g., Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989). Terms such as doctor, physician, medical professional, etc., are used interchangeably herein and include mental health professionals.

⁹⁵ Bowring, 551 F.2d at 47-48. Judge Becker recently expressed the same view. In Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991), cert, denied., 60 U.S.L.W. 3716 (U.S. Apr. 21, 1992), which involved a municipality's obligation to ensure that pretrial detainees do not commit suicide while in state custody, he stated that:

[I]f the evidence showed that the City had taken into account the serious medical needs of suicidal detainees and had taken all reasonable steps to protect them, in light of security, fiscal, and other constraints, the City could not be held to have been deliberately indifferent to those serious medical needs.

Id. at 1071 n.27 (plurality opinion) (emphasis added). Judge Becker was not joined in this view by any other member of the panel, and Chief Judge Sloviter, who concurred in the judgment with Judge Becker, indicated that she disagreed with this position. Id. at 1091-92.

⁹⁶ See supra notes 16-17 & 44 and accompanying text.

⁹⁷ See supra notes 35-37 and accompanying text.

⁹⁸ Bowring, 551 F.2d at 47.

⁹⁹ JAMES J., GOBERT & NEIL P., COHEN, RIGHTS OF PRISONERS § 11.10 n.219 (1981)Google Scholar; Stephen L., Hoard, Prisoner's Rights—Bowring v. Godwin: The Limited Right of State Prisoners to Psychological and Psychiatric Treatment, 56 N.C. L. REV. 612, 618 (1978).Google Scholar

¹⁰⁰ See, e.g., Goffv. Bechtold, 632 F. Supp. 697, 698-700 (S.D.W. Va. 1986); cf. McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977), cert, denied, 435 U.S. 917 (1978); Dean v. Coughlin, 623 F. Supp. 392, 404 (S.D.N.Y. 1985); Brown v. Beck, 481 F. Supp. 723, 726 (S.D. Ga. 1980).

¹⁰¹ In essence, Estelle holds that a prisoner is constitutionally entitled to the treatment prescribed by a medical professional. This right would not seem to encompass second opinions or choice of doctors or treatments. See Estelle, 429 U.S. at 103-05.

¹⁰² See supra notes 31-34 and accompanying text.

¹⁰³ Part III of this Article argues that this is substantially, if not exactly, the standard that should be used to determine the medical care rights of pretrial detainees and the involuntarily committed. Certainly they are entitled to no less. See supra notes 50 & 55 and accompanying text. Therefore, the arguments in Part V for and against the Estelle MPJ standard apply to the medical care rights of pretrial detainees and the involuntarily committed as well as those of prisoners. The constitutional standard is referred to as the Estelle MPJ standard because only in Estelle did the Court squarely address the medical care rights of a group (prisoners) in state custody.

¹⁰⁴ This is in essence what the Bowring court held. See Bowring v. Godwin, 551 F.2d 44, 48- 49 (4th Cir. 1977).

¹⁰⁵ See supra notes 27-35 and accompanying text.

¹⁰⁶ 424 U.S. 319 (1976).

¹⁰⁷ See supra notes 38-39 and accompanying text.

¹⁰⁸ Cf. Parham v.J.R., 442 U.S. 584, 609 (1979) (arguing that “the shortcomings of specialists can[not] always be avoided by shifting the decision from a trained specialist … to an untrained judge“).

¹⁰⁹ See supra note 15 and accompanying text.

¹¹⁰ GOBERT & COHEN, supra note 99, at 335 n.187.

¹¹¹ This comparison might not hold for prisoners who qualify for Medicaid. See infra note 114 and accompanying text. Medicaid is a joint federal and state program of medical assistance for poor persons who are aged, blind, or disabled, and for poor families with dependent children. See 42 U.S.C.A. § 1396 (West 1983); see also 3 Medicare and Medicaid Guide (CCH) f 14,010 (1990).

¹¹² See Pear, supra note 4, at 1 (discussing recent Medicaid cutbacks).

¹¹³ So? DeShaney v. Winnebago County Dep't of Social Svcs., 489 U.S. 189, 198-200 (1989).

¹¹⁴ Under 42 U.S.C.A. § 1396d(a)(1) (West 1992), the states participating in Medicaid must provide “inpatient hospital services (other than services in an institution for mental diseases),” and this is defined by regulation to include services that are “ordinarily furnished in a hospital for the care and treatment of inpatients.” 42 C.F.R. § 440.10(a)(1) (1992).

Whether most Medicaid patients actually receive these high-cost treatments is a different issue. See Rand E., Rosenblatt, Medicaid and the Primary Care Case Management, the Doctor-Patient Relationship, and the Politics of Privatization, 36 CASE W. RES. L. REV. 915, 931-33 (1986)Google Scholar (discussing the gulf between Medicaid goals and reality in terms of recipients’ access to medical services).

What is critical in determining the constitutional standard should be what Medicaid covers in theory (i.e., as it is written in the statutes), since only the theoretical Medicaid coverage reflects legislators’ judgment about what constitutes basic medical care.

¹¹⁵ See Trop v. Dulles, 356 U.S. 86, 100-01 (1957); see also Michael C., Friedman, Cruel and Unusual Punishment in the Provision of Prison Medical Care: Challenging the Deliberate Indifference Standard, 45 VAND. L. REV. 921, 926 (1992).Google Scholar

¹¹⁶ The Oregon plan was recently approved by trie Clinton administration and will take effect on January 1, 1994. Spencer Rich, U.S. Approves Oregon Plan for Health Care Rationing, WASH. POST, Mar. 20, 1993, at Al.

¹¹⁷ See JOHN, RAWLS, A THEORY OF JUSTICE 58–60 (1971)Google Scholar.

¹¹⁸ 17 U.S. (4 Wheat.) 316 (1819).

¹¹⁹ Id. at 431. See LAURENCE, TRIBE, AMERICAN CONSTITUTIONAL LAW 512 (1988)Google Scholar.

¹²⁰ See supra notes 27-37 and accompanying text.

¹²¹ See supra note 30 and accompanying text.

¹²² This could be accomplished in two basic ways. The state could command prison doctors to choose the least expensive treatments. The states could also mandate additional medical opinions when the first doctor prescribes an expensive treatment. The state could then, based on a difference of opinion among the professionals, only deliver the inexpensive treatment. Prison doctors would soon surmise that they are to prescribe the inexpensive treatments, regardless of which treatment they think is medically best. Courts should view both of these state techniques as attempts to reduce expenditures by eliminating the prisoner's constitutional right to receive treatment that a doctor has prescribed using her professional judgment.

¹²³ See Hoptowit v. Ray, 682 F.2d 1237, 1253-54 (9th Cir. 1982) (vacating parts of the district court's opinion that constitutionalized AMA standards).

¹²⁴ See Rhoades v. Chapman, 452 U.S. 337, 348, 349 n.13 (1981) (refusing to constitutionalize standards of association of prison administrators); Atiyeh v. Capps, 449 U.S. 1312, 1314, 1318 (Rehnquist, Circuit Justice 1981) (staying an order to remedy prison conditions and noting that professional standards may be used to improperly obtain extra resources from state governments).

¹²⁵ See, e.g., 3 NATIONAL INSTITUTE OF JUSTICE, AMERICAN PRISONS AND JAILS. CONDITIONS AND COSTS OF CONFINEMENT 229 (1984) (documenting shortage of medical personnel and facilities at both the state and local levels).

¹²⁶ As Mark Tushnet has noted:

TUSHNET, supra note 30, at 240 (footnotes omitted).

¹²⁷ See Duncan, Neuhauser & William B., Stason, Cost-Effective Clinical Decision Making, in THE PHYSICIAN AND COST CONTROL 133, 133 (Edward J., Carels et al. eds., 1980)Google Scholar (“Traditional clinical decision making does not explicitly assume resource scarcity. The goal of the physician is to do everything that can be done for each patient following the slogan that ‘nothing is too good for my patient.’ “); see also Norman G., Levinsky, The Doctor's Master, 311 NEW ENG. J. MED. 1573, 1573-74 (1984)Google Scholar.

¹²⁸ See supra note 11 and accompanying text.

¹²⁹ Under Estelle, this would be considered a proper exercise of professional judgment and, therefore, would not constitute “deliberate indifference.” See Estelle, 429 U.S. at 106.

¹³⁰ Rosenblatt, supra note 114, at 926 (“While the patient's economic interests might be taken into account in making treatment decisions in some circumstances, the doctor's economic interests are in theory excluded from consideration.“) (footnote omitted); see Robert A., Berenson, A Physician's Perspective on Case Management, Bus. & HEALTH, July-Aug. 1985, at 22–23.Google Scholar

¹³¹ Id.

¹³² ROBERT M., VEATCH, A THEORY OF MEDICAL ETHICS 158 (1981)CrossRefGoogle Scholar (“According to the Hippocratic principle, it would be immoral for a physician to take into account costs to third parties … in exploring the alternatives with the patient.“); Rosenblatt, supra note 114, at 926-27; see Newhauser & Stason, supra note 127, at 133.