The court of appeals for the Eighth circuit held that prison officials can
be held liable for promulgating policies that deny treatment to prisoners
suffering from fatal illnesses, even when the prison has contracted out
its medical care to a third party. An Iowa state prisoner with leukemia
was denied a bone marrow transplant by the Iowa City Medical Center at the
University of Iowa, which had a contract to provide medical care to Iowa
prisoners. Prisoner sued claiming denial of treatment violated his 8th
amendment rights and was also affecting his vision. District court granted
summary judgment to defendants, appeals court reversed. Appeals court
quotes extensive discovery questions supporting the reversal. The appeals
court held that the defendant prison officials failed to exercise control
over their subordinates (the medical contractors), therefore making them,
not the contractors, liable for plaintiff's injuries. The court held that
absent expert testimony there was insufficient evidence to show is an
affirmative defense that must he raised by the party asserting it, failure
to do so waives the defense. In any case, the rights asserted in this case
were clearly established and the defense would have failed. Case remanded.
See: Moore v. Morgan, 922 F. 2d 1993 (8th Cir. 1991).

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