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The Constitutional Right to Health Care: Treating Prisoners

Op-Med is a collection of original articles contributed by Doximity members.

I recently cared for a patient on death row. He had severe cervical stenosis in his neck with bad compression of his spinal cord and was gradually losing his ability to use his hands for simple tasks such as eating and dressing. He was in a significant amount of pain and his walking had deteriorated to needing a walker. This patient underwent a complicated decompression of his cervical stenosis, and instrumentation was needed to stabilize his neck. His surgery was done with the latest in spinal navigation technology and used custom fabricated rods only available at certain spine centers in the country. In addition to this complex and expensive surgery, his care required intensive care and several days in the hospital.

Incarcerated people are the only group in the U.S. with a constitutional right to health care. The 1976 U.S. Supreme Court case of Estelle v. Gamble established that the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment, extends to the health care of prisoners. This landmark case set the bedrock ensuring adequate health care for all incarcerated people. Of course, SCOTUS didn’t say the health care would be free.

Who pays for the medical care of prisoners? Does it come out of the prison system budget? Do all prisoners fall under Medicaid coverage in a state or Medicare in the federal system? Are there negotiated rates? These are complex questions. The answers vary from county to county and state to state. Surprisingly, most prisoners will not qualify for Medicaid coverage in most states. Many state prison systems use their negotiated state Medicaid schedule as the basis for reimbursement to hospitals. Some hospitals have a negotiated premium above Medicaid to account for the added resources needed to care for a prisoner and to act as an incentive for the facility to accept prisoners for care. Some prison systems use a state employee insurance plan’s negotiated rates or a large state insurance provider’s rate as the basis of their reimbursement. Some states pay for the staffing, security, and care provided. Texas has full-service prison hospitals that are closed to the public, the cost of which are included in the prison system budget.

The second patient was also a prisoner. He presented to the ER with a new onset of generalized seizure. Imaging revealed two large brain tumors that were likely metastases from a mass in his lung. This patient was admitted to the ICU for control of his seizures and further work up for his new diagnosis of metastatic cancer. Of course, because he was a prisoner, there were two armed guards always present, and the patient was shackled to the ICU bed once his seizures were controlled. I was off for the weekend. When I returned on Monday, the patient was doing better, having received seizure medication and steroids, but he was no longer shackled to the bed and the armed guards were gone. I asked the ICU nurses where the guards were, and they said that the patient was released from prison once they discovered his cancer diagnosis.

I had never seen an incarcerated patient handled this way. My first reaction was to call my father who is a judge and tell him about my newfound power as a physician to free prisoners. Why would the state release this prisoner so abruptly? Was it the cost of his future care? The patient would likely require brain surgery, extensive radiation treatment to his chest and brain, and lengthy course of regular chemotherapy treatments. Not to mention routine imaging, lab work, and office visits. According to JAMA, the annual cost of medications alone for 51 new chemotherapy drugs approved from 2009-2013 was $116,100 – $119,765. Did the state look at his future medical needs and costs and just decide to push the burden on? Was it the logistics of caring for a prisoner with cancer that resulted in this prisoner’s release? The radiation treatments alone would have required 10 to 20-plus daily visits for treatment. Each visit would require transportation and security arrangements. It’s not likely the chemotherapy could be done at the prison. Proper handling of the medication and presence of a qualified chemotherapy infusion nurse would not be reasonable in a prison setting, so security and transportation to a cancer center would also be necessary for those treatments.

The other possibility is a compassionate rationale for the prisoner’s clemency. In some states and jurisdictions, prisoners may be granted a release for compassionate rationale or receive a medical parole for serious medical conditions. Some states require executive/governor approval for such clemency. Some states allow a judge to make these determinations. Some states only allow nonviolent prisoners to be eligible for this type of release. Some states only consider release for terminal conditions. Some states will consider release for non-terminal conditions where continued incarceration may be cruel — such as Alzheimer’s Disease.

The truth is that cost, logistics, and compassion all probably play a role when deciding to grant clemency to a prisoner for medical reasons.

The third patient presented to the ED with confusion, lethargy, and several recent falls. Her imaging demonstrated a large brain tumor in her cerebellum and hydrocephalus. She was eventually taken to the OR for placement of a shunt and removal of the tumor. Unfortunately, her recovery was complicated and difficult and required an extended ICU stay, tracheostomy, and feeding tube placement. This patient was not incarcerated but had entered the country illegally. She and her husband had only been in the country a month when she came to our ER. They had no resources to care for her in a home setting. When it came time to transition her care to a long-term facility for rehab and further recovery, she was denied acceptance. The conversation then turned to arranging for a hospital in her home country to accept her and evacuating her back at our hospital’s expense, but the family adamantly refused.

A third idea was to have her arrested while in the hospital for entering the country illegally. The idea being that given the previous discussion regarding the Eighth Amendment and Estelle v. Gamble, if she was technically in the custody of federal law enforcement, we might have more resources to place her in an appropriate level of care in the U.S. We ultimately decided to not involve law enforcement, and she was discharged to her family, where they struggled to care for her.

Treating incarcerated patients as inpatients, outpatients, or at their correctional facility can be ethically, emotionally, and professionally challenging for the physician. Resources that the physician feels are necessary to treat a prisoner’s condition may not be reasonable in a prison setting or may be severely lacking in quantity or quality. Optimizing care for patients that are prisoners can be very challenging.

Some members of the office and hospital staff often react indignantly when faced with the care of a prisoner. Some members may react with overwhelming compassion. Every time I admit an incarcerated patient, colleagues and family members ask, “Why are they in prison?” Public databases now make this information easily available. I consciously refrain from knowing why my patient is in prison. It has nothing to do with my medical decision and I would be concerned about any subconscious effect it may have on my approach to the patient’s care. The original Hippocratic oath translated from Greek specifically addresses the physicians obligation to provide care to the best of their ability across all members of society; “Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free.”

Have you ever treated an incarcerated patient? What was your experience?

Dr. Gruber is a neurosurgeon in Paducah, KY. His clinical interests include brain tumor management and robotic spine surgery. Find him on Twitter @DrThomasGruber and LinkedIn. Dr. Gruber is a 2022–2023 Doximity Op-Med Fellow.

All names and identifying information have been modified to protect patient privacy.

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