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Tramadol and the Eighth Amendment

One of the standard complaints coming from the right of the political spectrum is that doctors are continuously under threat from attorneys. It seems there is a steady supply of these pesky lawyers around who are prepared to sue doctors who may have made a mistake. Whatever happened to deference? Doctors always used to enjoy some degree of professional respect with mistakes quietly forgotten. Now insurance premiums are rising and there are real threats to professional reputation from these unfounded allegations of mistakes. Many states have various shield provisions to limit or restrict the right of patients to sue. Obviously, the medical profession has considerable influence over the lawmaking process and they can manipulate the politics to get protection. But many of the attempts to exclude liability for medical mistakes at a federal level have always run into the other lobby. Trial attorneys spend a lot of money keeping the Democrats happy so the law of tort remains available as a law of consumer protection. Without it, patients who are victims of mistakes would never have a remedy and really bad doctors would have immunity just because of the shingle hanging above their doors.

In the majority of developed countries around the world, doctors are held legally accountable for any mistakes they make. The idea is to encourage all in the medical field to deliver a high quality service to patients. If there is no accountability, there is no real incentive to maintain, let alone improve, the standard of care. This makes the US a really strange place. Ordinary citizens, living out their lives in towns and cities, have no constitutional right to high quality medical care. But prisoners are protected by the Eighth Amendment. For those of you not up on constitutional law, this is a right not to be exposed to cruel and unusual punishment – as a hint, this is why terrorist suspects have been kept offshore in Guantanamo Bay. So here are a sample of the successful cases bought by prisoners against their prison doctors and dentists. In Board v. Farnham, there was a breach of a prisoner’s rights because he had been denied toothpaste for three weeks and developed an infection. The court in Rodriguez v. Plymouth Ambulance Service allowed an action when the prison hospital refused to treat a prisoner’s arm and it became painful and infected. Even the failure to dispense antibiotics was unlawful according to Gil v. Reed.

The legal test is whether the failure to treat is evidence of deliberate indifference that the prisoners will experience pain. If so, the refusal to give proper treatment becomes a part of the punishment regime. Researchers should explore how often doctors in the free world are indifferent to their patients’ needs. Many doctors seem disinterested, not to say uninterested, in what we say about our symptoms including the level of pain. This is unacceptable. If prison doctors and their employers are held accountable for failing to give effective treatment as needed, the same standard should be taken for law-abiding citizens. The constitution should not favor prisoners over the rest of the world. Everyone in pain should always be given effective treatment. This may well only be prescribing tramadol but, whatever is the right treatment, it should always be given. It should not be left to people to self-medicate by buying tramadol online.