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Published online by Cambridge University Press: 29 April 2021
City of Revere v. Massachusetts General Hospital presented the United States Supreme Court with its first opportunity to consider whether a state or municipality has a constitutional duty to pay for medical treatment received by an individual in police custody. The Supreme Judicial Court of Massachusetts had held that the city had an eighth amendment duty to pay for an arrestee's treatment. The U.S. Supreme Court reversed, observing that eighth amendment rights and duties are not implicated prior to conviction and that fourteenth amendment due process concerns were met once the arrestee received adequate medical care. No obligation to pay arises, the Court held, absent a specific state law provision requiring such payment. Because arrestees are subject to physical restraints similar to those imposed on convicted prisoners, this Case Comment argues that courts undertaking to determine the scope of a state's duty to provide treatment to arrestees should apply a due process standard which draws upon eighth amendment analysis. The Comment concludes that under such an eighth amendment equivalence approach, no duty to pay arises because the state's failure to pay the health care provider does not reflect "deliberate indifference" towards the recipient of the treatment.
1 Throughout this Case Comment, the terms state and government entity are used interchangeably and include municipal governments such as the City of Revere.
2 Harris v. McRae, 448 U.S. 297, 316 (1980).
3 Maher v. Roe, 432 U.S. 464, 469 (1977); see infra notes 45-54 and accompanying text.
4 See Youngberg v. Romeo, 457 U.S. 307 (1982) (involuntarily committed mental patient must receive medical care under the fourteenth amendment); Estelle v. Gamble, 429 U.S. 97 (1976) (convicted prisoners have right to medical care under the eighth amendment).
5 See infra notes 55-70 and accompanying text.
6 103 S. Ct. 2979 (1983).
7 Id. at 2981-82. This Comment distinguishes among three different groups of individuals held under forcible restraint by law enforcement officials: convicted prisoners, who have been formally adjudicated guilty; pretrial detainees, who have not yet been tried but who have had a probable cause hearing, and, when required, a bail hearing; and arrestees, who have been detained by the police but who have not had a probable cause hearing. See Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975) (discussing the probable cause prerequisites to restraining the liberty of unconvicted prisoners); 18 U.S.C. 3146, 3148 (West 1969) (right to bail hearing under federal law). Revere deals with the rights of arrestees.
8 See, e.g., Youngberg, 457 U.S. at 307; Estelle, 429 U.S. at 97. Hospitals have ethical obligations and, in some jurisdictions, a common-law duty to treat those in need of emergency care. See infra notes 95-96 and accompanying text. If the state's obligation is limited to assuring that an individual receives care, the duty to provide may be satisfied simply by bringing him to a hospital. In this case the hospital bears the cost of treatment. However, if the duty to provide includes responsibility for payment, the cost must be borne by the state.
9 103 S. Ct. at 2983 (as long as the governmental entity ensures that the medical care needed is in fact provided, the Constitution does not dictate how the cost of that care should be allocated as between the entity and the provider of the care).
10 Massachusetts Geni Hosp. v. City of Revere, 385 Mass. 772, 772-73, 434 N.E.2d 185, 185-86 (1982).
11 Id. at 773 n.l, 434 N.E.2d at 186 n.1.
12 Id. at 773, 434 N.E.2d at 186.
13 Id.
14 Id. at 773 n.5, 434 N.E.2d at 186 n.5.
15 Id. at 773, 434 N.E.2d at 186.
16 Id. at 773-74, 434 N.E.2d at 186.
17 The most obvious source of payment is the prisoner himself. According to principles of contract law, a hospital that provides a prisoner with necessary treatment is entitled to payment from him. If the prisoner requested the care, the hospital is entitled to payment under the contract; if the prisoner did not request the care, the hospital is entitled to restitution for services rendered. RESTATEMENT OF RESTITUTION 116 (1937). This remedy is of little value if the prisoner is indigent.
18 385 Mass, at 774, 434 N.E.2d at 186.
19 Under the hospital's implied contract theory, Revere's duty ran directly to MGH; by treating Kivlin, MGH conferred a benefit on Revere for which it was entitled to compensation. Under the constitutional argument, Revere's duty ran to Kivlin; Revere was required to provide medical care to Kivlin because his liberty had been unduly restricted. See infra notes 30-33 and accompanying text. MGH was required to assert its constitutional claim through Kivlin, arguing that unless Revere had a duty to pay, Kivlin's treatment right was not secure.
20 385 Mass, at 774, 434 N.E.2d at 186.
21 Id. at 774-75, 434 N.E.2d at 186-87. Under Massachusetts law, only a legally constituted board performing the powers and duties of a board of health may contract for health services on behalf of a municipality. Id. at 774, 434 N.E.2d at 186 (quoting Mass. Gen. LAWS Ann. ch. 40, 4 (West Supp. 1982)). The court also noted that police powers do not include the authority to contract, and that any municipal contract in excess of 2,000 must be signed by the mayor. Id. at 775, 434 N.E.2d at 187. MGH abandoned its contract argument in its appeal to the U.S. Supreme Court.
22 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. CONST, amend. VIII. The parties and the SJC erroneously assumed that the eighth amendment applies to anyone deprived of his liberty. As the U.S. Supreme Court indicated in Revere, the due process clause of the fourteenth amendment governs prior to an adjudication of guilt. See infra note 62 and accompanying text.
23 429 U.S. 97(1976).
24 Id. at 104.
25 Brief for Appellant at 9-13, Massachusetts Gen. Hosp. v. City of Revere, 385 Mass. 772, 434 N.E.2d 185 (1982) (citing Lutheran Medical Center v. City of Omaha, 204 Neb. 292, 281 N.W.2d 786 (1979) (the constitutional duty to provide medical care includes responsibility for the costs of such care and applies to both convicted and unconvicted prisoners under the eighth and fourteenth amendments); Spicer v. Williamson, 191 N.C. 487, 132 S.E. 291 (1926) (under the common law, the public must pay for prisoners medical treatment); Dade County v. Hospital Affiliates Int'l, 378 So. 2d 43, 44 (Fla. 1979) (a county or other governmental entity would be liable to a private physician or hospital which renders medical services to its prisoners) (case focused primarily on an unrelated issue)).
26 Massachusetts Gen. Hosp., 385 Mass, at 777, 434 N.E.2d at 188 (quoting Estelle, 429 U.S. at 103). Before the SJC, Revere argued only that Estelle was inapplicable. When addressing the Supreme Court, Revere expanded this argument, contending that the eighth amendment did not apply to an unconvicted prisoner such as Kivlin. See infra notes 36-37 and accompanying text.
27 Brief for Appellee at 20, Massachusetts Gen. Hosp. v. City of Revere, 385 Mass. 772, 434 N.E.2d 185 (1982).
28 Massachusetts Gen. Hosp., 385 Mass, at 776, 434 N.E.2d at 187-88.
29 Id. at 779, 434 N.E.2d at 189. This holding presupposes that hospitals will refuse to treat injured prisoners unless they pay for the medical services rendered. This presumption is not necessarily valid. See infra notes 93-98 and accompanying text.
30 Id. at 778, 434 N.E.2d at 189.
31 Id. at 777, 434 N.E.2d at 188 (citations omitted). The court noted that MGH failed to invoke the Massachusetts Constitution, though art. 26 of the Declaration of Rights contains a prohibition against the infliction of cruel and unusual punishment. Id. at 776 n.6, 434 N.E.2d at 188 n.6. Had MGH raised it, the court could have based its holding on that provision of the state constitution. See infra note 99 and accompanying text.
32 Id. at 778, 434 N.E.2d at 189.
33 Id. at 778-79, 434 N.E.2d at 188.
34 Id. at 779-80, 434 N.E.2d at 189-90.
35 City of Revere v. Massachusetts Gen. Hosp., 103 S. Ct. 2979, 2981 (1983). Had the SJC based its decision on Massachusetts law, the result would not have been reviewable. Id. at 2982.
36 No state shall deprive any person of life, liberty, or property, without due process of law U.S. Const: amend. XIV, 1, cl. 3.
37 Revere, 103 S. Ct. at 2983. Revere argued that MGH did not have standing to press Kivlin's claim for payment. The Court found that MGH did have standing because it performed services for which it has not been paid, and through this action it seeks to redress its economic loss directly. Id. at 2982.
38 Id. at 2983.
39 Id.
40 See supra note 19 and accompanying text.
41 Harris v. McRae, 448 U.S. 297, 317 (1980).
42 Estelle v. Gamble, 429 U.S. 97, 104 (1976).
43 Revere, 103 S. Ct. at 2982; see supra note 39 a nd accompanying text. Few other courts have addressed this issue. See cases cited at note 25.
44 Bell v. Wolfish, 441 U.S. 520, 535 (1979).
45 432 U.S. 464 (1977).
46 Id. at 471.
47 410 U.S. 113 (1973).
48 432 U.S. at 473-74.
49 448 U.S. 297 (1980).
50 Id. at 301. These restrictions were contained in the Hyde Amendment, Pub. L. No. 96-123, 109, 93 Stat. 926 (1980).
51 448 U.S. at 317-18.
52 Id. at 309.
53 Id. at 314 (citing Maher, 432 U.S. at 474).
54 See Harris, 448 U.S. at 315 ([T]he Court in Maker concluded that trie regulation did not impinge on the constitutional freedom recognized in Wade because it imposed no governmental restriction on access to abortions.).
55 Youngberg v. Romeo, 457 U.S. 307, 317 (1982). Youngberg involved the due process rights of a n involuntarily committed mental patient.
56 Id. at 324 (emphasis added).
57 429 U.S. 97 (1976).
58 Id. at 102-03.
59 Id. at 103.
60 Id. at 105.
61 Id. at 104 (quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926)).
62 See, e.g., Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1979):
[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.
63 441 U.S. 520 (1979).
64 The detainees challenged the constitutionality of the following conditions:
the practice of housing two inmates in individual rooms originally intended for single occupancy (double bunking); enforcement of the so-called publisher-only rule prohibiting inmates from receiving hardcover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates receipt of packages of food and personal items from outside the institution; the practice of body-cavity searches of inmates following contact visits with person from outside institution; and the requirement that pretrial detainees remain outside their rooms during routine inspection by [prison] officials.
Id. at 520. In remanding the case, the Court held that a violation of due process depends on whether [the challenged conditions] are rationally related to a legitimate nonpunitive governmental purpose and whether they appear excessive in relation to that purpose. Id. at 561.
65 The Court's use of Ingraham, however, indicates that the due process constraints are similar under the fifth and fourteenth amendments. See Bell, 441 U.S. at 535 nn. 16, 17.
66 Id. at 539-40.
67 Id. at 539.
68 Id.
69 Id. at 545. The Court acknowledged that these retained rights include freedom of speech and religion and protection against further deprivation of liberty without due process.
70 See supra notes 55-61 and accompanying text.
71 Bell, 441 U.S. at 539.
72 Estelle, 429 U.S. at 102-03 (citations omitted).
73 See Lutheran Medical Center v. City of Omaha, 204 Neb. 292, 296, 281 N.W.2d 786, 789 (1979) (while the cases that define standards of treatment developed under the eighth amendment involved convicted prisoners, there is no rational basis why the same principles should not apply to [unconvicted detainees]). But see Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981). Jones suggests that conditions which impose cruel and unusual punishment on a convicted inmate could be constitutionally imposed on an unconvicted detainee. The Bell v. Wolfish criterion, applied to medical attention, entitles pretrial detainees to reasonable medical care unless the failure to supply it is reasonably related to a legitimate governmental objective. Id. at 1378 (emphasis added). Compare Jones with J. Gobert & N. Cohen, Rights of Prisoners, 1.06 (1981) ([A detainee's lack of protection under the eighth amendment] is not particularly significant, however, for the Due Process Clause forbids the punishment, cruel or otherwise, of a person who has not been convicted of a crime.).
74 Estelle, 429 U.S. at 104 (quoting Spicer, 191 N.C. at 490, 132 S.E. at 293).
75 See supra note 70.
76 Estelle, 429 U.S. at 103; see supra notes 57-61 and accompanying text.
77 Bell, 441 U.S. at 545.
78 See id. at 539 (citations omitted).
79 The infliction of [unnecessary suffering caused by denial of medical care] is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself..
Estelle, 429 U.S. at 103-04 (quoting Spicer, 191 N.C. at 490, 132 S.E. at 293).
80 Estelle, 429 U.S. at 103 n.8. According to Estelle these statutes embody common-law values relative to a prisoner's right to care. Id. at 103-04. The Estelle Court referred to Spicer v. Williamson, 191 N.G. 487, 132 S.E. 291 (1926) in which these common-law values are discussed. Curiously, Spicer concluded that the duty to provide care to a prisoner includes a duty to pay for that care. However, Estelle cited Spicer only to support its conclusion that a prisoner is entitled to receive care without adopting the discussion concerning payment. Spicer is therefore of little consequence in determining responsibility for payment under the eighth amendment and the due process clause.
81 [T]he commissioner may contract with private practitioners to furnish [medical] services. The cost of contracted services shall be paid out of appropriations made to the department. Alaska Stat. 33.30.050 (1975).
82 The commissioner shall provide for the prisoners suitable food and clothing and shall provide for the relief of any sick or infirm prisoner, and the cost thereof shall be paid by the state. Conn. Gen. Stat. 18-7 (1975).
83 The expenses of the accommodation, maintenance, and medical care of a prisoner whose temporary removal [from the institution to a hospital is necessary] shall be paid by the prisoner or his relatives or friends, or from any funds that are available for the hospital expenses of prisoners, or, if not otherwise available, shall be a charge upon the county, city, or town from which such inmate was committed .
Md. Ann. Code art. 27, 698 (1982). Estelle cited an earlier version of this statute, Md. Ann. Code art. 27 698 (1976).
84 The state board of correction shall provide for the care, maintenance and employment of all inmates committed to its custody. Idaho Code 20-209 (1979).
85 The confining government institution is responsible for furnishing any needed medical and hospital attention to prisoners. Ga. Code Ann. 77-309(e) (1973). The Georgia Code has been recodified since Estelle; for the current text see Revised Code: 1981, Title 42, ch. 5 51, 59.
86 Ramos v. Lamm, 485 F. Supp. 122, 154 n.20 (D. Colo. 1979), affd in part, 639 F.2d 559 (10th Cir. 1980).
87 Id. (quoting Clappier v. Flynn, 605 F.2d 519, 533 (10th Cir. 1979)). See also Holly v. Rapone, 476 F. Supp. 226, 231 (E.D. Pa. 1979) (for prison officials to be deliberately indifferent, they must offend the evolving standards of decency) (quoting Estelle, 429 U.S. at 106).
88 Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979) ([W]here the size of the medical staff at a prison in relation to the number of inmates having serious health problems constitutes an effective denial of access to diagnosis and treatment the deliberate indifference standard [is] violated.); accord, Ramos, 639 F.2d at 575 (10th Cir. 1980).
89 Estelle, 429 U.S. a t 104-05.
90 Ramos, 639 F.2d at 575 ([d]eliberate indifference to inmates health needs may be shown by proving repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff). Isolated instances of negligence do not constitute deliberate indifference. Estelle, 429 U.S. at 105-06.
91 Layne v. Vizant, 657 F.2d 468, 471 (1st Cir. 1981) (When a supervisory official is placed on actual notice of a prisoner's need for physical protection or medical care, administrative negligence can rise to the levei of deliberate indifference to or reckless disregard for that prisoner's safety. ) (quoting West v. Rowe, 448 F. Supp. 58, 60 (N.D. Ill. 1978)).
92 See supra note 11 and accompanying text.
93 Fine, Opening the Closed Doors: The Duty of Hospitals to Treat Emergency Patients, 24 Wash. U. Urb. & Contemp. L.J. 123, 126-27 (1983). See Costa v. Regents of Univ. of Cai., 116 Cai. App. 2d 445, 254 P. 2d 85 (1953); Birmingham Baptist Hosp. v. Crews, 229 Ala. 398, 157 So. 224 (1934); Olander v. Johnson, 258 Ill. App. 89 (1930); McDonald v. Massachusetts Gen. Hosp., 120 Mass. 432 (1876). See also Natale v. Sisters of Mercy, 243 Iowa 582,52 N.W. 2d 701 (1952); Levin v. Sinai Hosp. of Baltimore, 186 Md. 174, 46 A.2d 298 (1946); Van Campen v. Olean Gen. Hosp., 210 A.D. 204, 205 N.Y.S. 554 (1924).
94 Annot., 35 A.L.R. 3d 841, 844-45 (1971); Fine, supra note 93, at 125-26.
95 This analysis ignores other pressures on the hospital to provide emergency room care. For example, standards set by the Joint Committee on the Accreditation of Hospitals require that [a]ny individual who comes to the hospital for emergency medical evaluation or initial treatment shall be properly assessed by qualified individuals and appropriate services shall be rendered within the denned capability of the hospital. Brief for Petitioner, at 14-15, Massachusetts Gen. Hosp. v. City of Revere, 385 Mass. 772, 434 N.E.2d 185 (1982) (quoting Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals, 23 (1981 ed.)). This may prevent a hospital from denying emergency treatment, even when it has the legal option to do so. For other possible sources of a hospital's duty to treat, see Fine, supra note 93, at 137-48.
96 Wilmington Gen. Hosp. v. Manlove, 54 Del. 15, 174 A.2d 135 (1961); see also Stanturf v. Sipes, 447 S.W.2d 558 (Mo. 1969); Le Juene Road Hosp., Inc. v. Watson, 171 So. 2d 202 (Fla. App. 1965).
97 Powers, L., Hospital Emergency Service and the Open Door, 66 Mich. L. Rev. 1455, 1464 (1968)Google Scholar (In at least one jurisdiction the only sure way [for a hospital to avoid liability for refusing to provide emergency treatment is] to accept the person in distress who appears at the emergency room and render whatever emergency assistance is necessary.). Wilmington Gen. Hosp. held that hospital liability may be predicated on the refusal of service to a patient in case of an unmistakable emergency, if the patient has relied upon a well-established custom of the hospital to render aid in such a case. 54 Del. at 25, 174 A.2d at 140. The hospital may retain its right to refuse patients if those responsible for bringing them to the hospital, e.g., the local police, are aware of a hospital policy of refusing to treat indigents.
98 See, e.g., Cal. Health & Safety Code 1317 (Deering 1975); Fla. Stat. Ann. 401.45 (West Supp. 1973); Ill. Rev. Stat. ch. 111 1/2 86-87 (1966); Ky. Rev. Stat. 216B.400 (1982); Mass. Gen. Laws Ann. ch. 111 70E(k) (West 1983); N.Y. Pub. Health Law 2805-b (McKinney Supp. 1982); R.I. Gen. Laws 23-17-26 (1956); Tenn. Code Ann. 53-5201 (1977); Tex. Health & Safety Code Ann. 4438a (Vernon 1976); Wis. Stat. Ann. 46.21(8)(b) (West Supp. 1983); Wyo. Stat. 35-2-115(a) (1977).
99 In Revere, the SJC noted that the Massachusetts Declaration of Rights, art. 26 might have been relevant but was not raised by the parties. 385 Mass, at 776 n.6, 4 34 N.E.2d at 187-88 n.6. Article 26 provides: No magistrate or court of law shall inflict cruel or unusual punishments. In interpreting art. 26, the SJC could conclude that the state constitution requires a municipality to pay for the medical care rendered to injured detainees. The Supreme Court's interpretation of identical language in the eighth amendment is not binding on a state court interpretation of a state constitution. Brennan, , State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 501 (1977)Google Scholar.
