John R. Ninosky

Key Points:  There is a constitutional right to medical care for those individuals in custody.  Although there is a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, the Third Circuit, in Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023), has definitively stated that there is no cause of action for a failure to intervene in a medical context. In correctional medicine, the Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” With respect to prisoner confinement, the Eighth Amendment obligates the government “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Thus, for decades those individuals in custody have had a constitutional right to medical care.  Creative plaintiffs’ lawyers have since brought federal civil rights claims seeking to create a cause of action for a failure to intervene against both law enforcement and medical staff personnel, arguing those individuals had a duty to prevent a violation of the right to medical care where medical care was not provided or adequately provided to a person in custody. For years there had been conflicting case law as to whether there was a cause of action for a failure to intervene in the medical context in correctional facilities.  Older authority stood for the proposition that medical providers could not be liable for failing to intervene in situations involving excessive force. See, e.g., Ali v. McAnany, 262 Fed. Appx. 443, 446 (3d Cir. Jan. 25, 2008); Goldsmith v. Franklin County, 2016 WL 6440141, at *7 (M.D. Pa. Sept. 30, 2016) (“[T]he [Third Circuit] has expressly declined to extend its holding in Smith beyond correctional officers to impose a duty to intervene upon medical employees working within a prison setting.”); Harris v. Hershey Med. Ctr., 2009 WL 2762732, at *6 (M.D. Pa. Aug. 27, 2009). In Goldsmith, the District Court explained:  [A]lthough [the Third Circuit in] Smith announced that corrections officers have a legal duty to intervene . . . the court clearly grounded its decision in the fact that a corrections officer, like a police officer, is a law enforcement officer, sworn to uphold the law, and authorized to use force if necessary. 2016 WL 6440141, at *7. Thus, a medical provider has “no legal duty to intervene on behalf of an inmate in the midst of physical altercations with staff.” Id. More recent decisions have been decided differently. District courts have found plausible causes of action for failure to intervene against medical professionals where they have allegedly failed to provide emergency medical care. See Thomas v. Harrisburg City Police Dep’t, 2021 WL 4819312 (M.D. Pa. Oct. 15, 2021) and Cyr v. Schuylkill Cnty., 2023 WL 1107879 (M.D. Pa. Jan. 30, 2023).  The Thomas decision was appealed to the Third Circuit by individual police officers on qualified immunity grounds after their motion to dismiss was denied. See Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023). The decedent in Thomas ingested cocaine at the time of his arrest. The plaintiff argued that the arresting police officers had a duty to intervene to prevent the violation of the decedent’s constitutional right to medical care. Specifically, it was alleged that the police officers should not have taken the decedent to the county booking center but, rather, should have taken the decedent to the hospital for evaluation. The police officers argued that they had qualified immunity.  The Third Circuit found that the District Court properly denied the police officers’ motion to dismiss as to the failure to render medical care. However, the Third Circuit held that the District Court erred in denying the motion to dismiss on the failure to intervene claim. The court stated: The Officers contend that the District Court improperly denied their motion to dismiss because (1) Sherelle Thomas cannot adequately plead a violation of failure to intervene to prevent a violation of the right to medical care where no such cause of action exists and (2) there is no clearly established right to intervention in the context of medical care.  The District Court does not directly address whether individuals have a clearly established right to intervention. We agree with the Officers that we have not recognized any such right, nor has the Supreme Court. Though we have recognized a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, we have since concluded that our precedent does not establish, let alone clearly establish, a right to intervention in other contexts.  Thomas, 88 F.4th at 285.  Thus, the Third Circuit has definitively stated that there is no cause of action for a failure to intervene in a medical context, and this holding has been followed by at least one subsequent district court case where such a claim was pursued. See Rossman v. PrimeCare Medical, Inc., 2024 WL 115203 (M.D. Pa. Jan. 10, 2024). As such, neither medical professionals nor law enforcement should be required to defend a failure to intervene claim arising from medical care, and these claims should be challenged. John is a shareholder in our Harrisburg, Pennsylvania, office. He can be reached at (717) 651-3709 or JRNinosky@mdwcg.com.    Defense Digest, Vol. 30, No. 1, March 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.