2020 Georgia Code
Title 42 - Penal Institutions
Chapter 5 - Correctional Institutions of State and Counties
Article 1 - General Provisions
§ 42-5-2. Responsibilities of Governmental Unit With Custody of Inmate; Costs of Emergency and Follow-Up Care; Access to Medical Services or Hospital Care; Hospital Requirements for Providing Emergency Health Care Services to State Inmates

1. Except as provided in subsection (b) of this Code section, it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention; to defend any habeas corpus or other proceedings instituted by or on behalf of the inmate; and to bear all expenses relative to any escape and recapture, including the expenses of extradition.Except as provided in subsection (b) of this Code section, it shall be the responsibility of the department to bear the costs of any reasonable and necessary emergency medical and hospital care which is provided to any inmate after the receipt by the department of the notice provided by subsection (a) of Code Section 42-5-50 who is in the physical custody of any other political subdivision or governmental agency of this state, except a county correctional institution, if the inmate is available and eligible for the transfer of his custody to the department pursuant to Code Section 42-5-50.Except as provided in subsection (b) of this Code section, the department shall also bear the costs of any reasonable and necessary follow-up medical or hospital care rendered to any such inmate as a result of the initial emergency care and treatment of the inmate. With respect to state inmates housed in county correctional institutions, the department shall bear the costs of direct medical services required for emergency medical conditions posing an immediate threat to life or limb if the inmate cannot be placed in a state institution for the receipt of this care.The responsibility for payment will commence when the costs for direct medical services exceed an amount specified by rules and regulations of the Board of Corrections.The department will pay only the balance in excess of the specified amount. Except as provided in subsection (b) of this Code section, it shall remain the responsibility of the governmental unit having the physical custody of an inmate to bear the costs of such medical and hospital care, if the custody of the inmate has been transferred from the department pursuant to any order of any court within this state.The department shall have the authority to promulgate rules and regulations relative to payment of such medical and hospital costs by the department.
2. 1. The officer in charge will provide an inmate access to medical services or hospital care and may arrange for the inmate's health insurance carrier to pay the health care provider for the services or care rendered as provided in Article 3 of Chapter 4 of this title.
   2. With respect to an inmate covered under Article 3 of Chapter 4 of this title, the costs of any medical services, emergency medical and hospital care, or follow-up medical or hospital care as provided in subsection (a) of this Code section for which a local governmental unit is responsible shall mean the costs of such medical services and hospital care which have not been paid by the inmate's health insurance carrier or the Department of Community Health.
3. A hospital authority or hospital which is not a party to a contract with the Georgia Department of Corrections or its agents on July 1, 2009, shall be reimbursed no more than the applicable Georgia Medicaid rate for emergency services provided to such state inmate. For purposes of this subsection, the term "state inmate" means any inmate for whom the Georgia Department of Corrections shall be responsible for the payment of medical care thereof. Nothing in this Code section shall prohibit the Georgia Department of Corrections from negotiating higher fees or rates with health care providers. It is the intent of the General Assembly that the Georgia Department of Corrections or its agents enter into negotiations with health care providers to contract for the provision of services as provided in this Code section.

(Ga. L. 1956, p. 161, § 13; Ga. L. 1982, p. 1361, §§ 1, 2; Ga. L. 1983, p. 3, § 31; Ga. L. 1986, p. 493, § 1; Ga. L. 1992, p. 2125, § 3; Ga. L. 1999, p. 296, § 24; Ga. L. 2009, p. 136, § 1A/HB 464.)

- Habeas corpus generally, T. 9, C. 14.

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 310 (1992). For note, "Finding Immunity: Manders v. Lee and the Erosion of 1983 Liability," see 55 Mercer L. Rev. 1505 (2004).

JUDICIAL DECISIONS

Extent of duty.

- O.C.G.A. §§ 42-4-4 and42-5-2 create an obligation merely to provide inmates with access to medical care and the county met that obligation by contracting with a local medical services provider to provide medical care to the detention center. Epps v. Gwinnett County, 231 Ga. App. 664, 499 S.E.2d 657 (1998).

When officers arrested a decedent who died shortly after the arrest, the officers and a city could not be held liable for violating O.C.G.A. § 42-4-4 or O.C.G.A. § 42-5-2 or by denying the decedent medical care because: (1) Code Section42-4-4 imposed a duty only upon sheriffs and deputies; (2) Code Section42-5-2 imposed a duty only on a governmental unit having physical custody of a detainee; and (3) the decedent was taken into custody by a county police officer and transported to a county jail, so the decedent was never in the custody of the city, and the suit could not be brought against the city under § 42-5-2. Hoyt v. Bacon County, F. Supp. 2d (S.D. Ga. Jan. 26, 2011).

Although the third amended complaint asserted a per se violation of O.C.G.A. § 42-5-2, but to the extent that statute applied to the medical care provider by virtue of the provider's contract with the sheriff's office, the statute only created an obligation to provide detainees with access to medical care, but did not address the issue of proper medical care; because it was undisputed the deceased detainee was provided access to medical care, the trial court did not err in concluding that O.C.G.A. § 42-5-2(a) provided no basis for a negligence per se claim against the medical care provider. Graham v. WellStar Health Sys., 338 Ga. App. 178, 789 S.E.2d 369 (2016).

County was responsible for detainee's medical care after the detainee was injured while being taken into custody by the county sheriff's department and, but for the seriousness of the detainee's injuries, would have been placed in the county's detention facility. Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

- When medical policies were promulgated and carried out under the mandate of O.C.G.A. § 42-5-2 and the seriously ill prisoner was seen only by undertrained LPNs, not by a physician, before the prisoner died, this was a violation of a constitutional right that was coupled with causation. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

- As it is the city's responsibility to pay all medical and hospital expenses for a prisoner in the city's custody, using a fund recovered from the prisoner after a shoot-out to pay these expenses, the city, in effect, appropriated the entire fund to itself. Johnson v. Mayor of Carrollton, 249 Ga. 173, 288 S.E.2d 565 (1982) (decided prior to 1982 amendment, which added last four sentences).

- Although plaintiff Department of Corrections had a duty under O.C.G.A. § 42-5-2(a) to provide medical care to the Department's inmates, this duty did not absolve the defendant driver of the driver's alleged liability for causing the inmates' injuries in an automobile accident; thus, the trial court erred in granting the driver summary judgment in the Department's suit against the driver to recover the Department's expenses incurred in treating the inmates' injuries. Dep't of Corr. v. Barkwell, 256 Ga. App. 877, 570 S.E.2d 13 (2002).

- Term "inmate" means not only a person who has been convicted of an offense, but also a person who has been detained by reason of being charged with a crime, such that the county was responsible for the medical expenses of an individual arrested and charged with theft, regardless of the person's procedural status, and, additionally, of the self-inflicted nature of the person's injuries. Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530, 428 S.E.2d 374 (1993).

- In an action by a hospital seeking to recover the expenses of medical treatment provided to three men brought to the hospital by a county sheriff's deputy, the fact that the three men had been handcuffed for transportation to the hospital was not determinative of their subsequent status, when the handcuffs were removed. Macon-Bibb County Hosp. Auth. v. Reece, 236 Ga. App. 669, 513 S.E.2d 243 (1999).

- In an action by a hospital against the county seeking reimbursement for medical treatment provided detainees of the sheriff's department, issues of fact as to whether the individuals were in custody of the county when the expenses were incurred and whether the individuals were "inmates" precluded summary judgment for either the county or sheriff. Macon-Bibb County Hosp. Auth. v. Reece, 228 Ga. App. 532, 492 S.E.2d 292 (1997).

Deputy sheriff in the deputy's official capacity was entitled to sovereign immunity with respect to a former inmate's claims arising from denial of a dietary request; the sheriff's powers were derived from the state, and provision of food to county jail inmates was a state function. Lake v. Skelton, 840 F.3d 1334 (11th Cir. 2016), cert. denied, 138 S. Ct. 1549, 2018 U.S. LEXIS 2492, 200 L. Ed. 2d 741 (U.S. 2018).

- Providing adequate medical attention for inmates under the defendant's custody and control is a ministerial act by the sheriff and his or her deputies and does not involve the exercise of discretion; thus, such act is not subject to either sovereign immunity or official immunity. Cantrell v. Thurman, 231 Ga. App. 510, 499 S.E.2d 416 (1998).

While subsection (a) of O.C.G.A. § 42-5-2 imposes the duty and the cost for medical care of inmates in the custody of a county upon the county, it does not waive sovereign immunity of the county or the county's agents and employees. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Without proof by the administrator of the decedent inmate's estate that any actions undertaken by the county officers and employees sued for wrongful death amounted to wilfulness, malice, or corruption, they were entitled to official immunity as a matter of law; further, any failure to adopt other or additional requirements as to their policies of supervision and training in dealing with a suicidal inmate did not amount to wilfulness, malice, or corruption. Middlebrooks v. Bibb County, 261 Ga. App. 382, 582 S.E.2d 539 (2003), overruled in part Tattnall County v. Armstrong, 333 Ga. App. 46, 775 S.E.2d 573, 2015 Ga. App. LEXIS 446 (2015).

Trial court incorrectly denied a prison official's motion for summary judgment on the estate administrators' 42 U.S.C. § 1983 claim against the official, following an inmate's death from a Tylenol overdose, because, while the official was aware that the decedent faced a substantial risk of serious harm, the administrators did not show that the official displayed deliberate indifference to the decedent's serious medical needs. Furthermore, the administrators failed to prove that the official was acting outside the scope of the person's official duties or employment; consequently, even if the official acted with malice or intent to injure the decedent, the official was immune from liability on the administrators' state law claims against the official. Minor v. Barwick, 264 Ga. App. 327, 590 S.E.2d 754 (2003).

County sheriff was not entitled to Eleventh Amendment immunity because, under Georgia law, the sheriff was not acting as an arm of the state when caring for the medical needs of an inmate; instead, the sheriff was carrying out a statutory duty assigned to the county under O.C.G.A. § 42-5-2(a). Dukes v. State, 428 F. Supp. 2d 1298 (N.D. Ga. 2006), aff'd, 212 Fed. Appx. 916 (11th Cir. 2006).

In a parent's wrongful death action, the trial court erred in denying a county's motion for summary judgment because O.C.G.A. § 42-5-2 did not waive the county's sovereign immunity for claims based on failure to provide medical care; Code Section42-5-2 does not provide an express waiver, and nothing in the statute can be read to imply a waiver. Gish v. Thomas, 302 Ga. App. 854, 691 S.E.2d 900 (2010).

Trial court correctly determined that the state law claims made against a county and against a sheriff and medical contract compliance administrator in their official capacities were barred because although O.C.G.A. § 42-5-2(a) imposed upon the county the duty and cost of medical care for inmates in the county's custody, the county did not waive sovereign immunity of the county or the county's agents or employees. Graham v. Cobb County, 316 Ga. App. 738, 730 S.E.2d 439 (2012).

Appellate court erred by affirming a trial court's denial of a city's motion to dismiss an inmate's complaint because the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived; therefore, the inmate was precluded from pursuing negligence claims. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).

Georgia Supreme Court finds that the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); McKenzey v. State, 140 Ga. App. 402, 231 S.E.2d 149 (1976); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Bunyon v. Burke County, 306 F. Supp. 2d 1240 (S.D. Ga. 2004); Lawson v. Lincoln County, 292 Ga. App. 527, 664 S.E.2d 900 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- Most of the following annotations were taken from opinions rendered prior to the 1982 amendment of this section, which added the last four sentences of subsection (a).

- See 1986 Op. Att'y Gen. No. U86-23.

- Private employer is primarily responsible for payment of medical bills arising from injuries, fatal or otherwise, received by a work release inmate while on the job, but upon default by employer, the Department of Offender Rehabilitation (Corrections) is ultimately responsible for paying for those medical services. 1981 Op. Att'y Gen. No. 81-27.

- Board may pay only those medical expenses incurred by an escaped prisoner, as a result of the prisoner's wrecking a stolen automobile, which may properly be classified as an expense relating to the recapture of the prisoner. 1967 Op. Att'y Gen. No. 67-218.

Responsibility for providing medical and dental care rests upon the governmental unit having physical custody of an inmate; there is, however, no statutory prohibition against taking an inmate to the inmate's private physician or dentist for specialized treatment at the expense of the inmate; however, while the Board of Corrections may permit an inmate to receive private specialized treatment, the inmate has no right to demand that the board permit such treatments. 1967 Op. Att'y Gen. No. 67-336.

- Municipality is only liable for a prisoner's medical expenses incurred while the prisoner is in the physical custody of the municipality. 1990 Op. Att'y Gen. No. U90-8.

When custody of a prisoner ceases by virtue of the prisoner's posting an appearance bond, the municipality's responsibility for needed medical care and hospital attention ceases. At that point the municipality ceases to have physical custody of the individual, since the individual is free to leave at any time the individual desires. 1990 Op. Att'y Gen. No. U90-8.

- There is no prohibition against chiropractic aid to prisoners; however, such should be furnished only upon request of the prisoner. 1960-61 Op. Att'y Gen. p. 357.

- Board is liable for medical expenses of probationers and parolees assigned to community centers operated by the board. 1974 Op. Att'y Gen. No. 74-129.

- Board may not pay the medical expenses of an 83-year-old woman who was assaulted and raped by an escaped inmate from the Georgia Industrial Institute. 1967 Op. Att'y Gen. No. 67-301.

- Governmental unit having physical custody of prisoner is required to defend any habeas corpus proceeding, including an appeal therefrom; it is the responsibility of the attorney representing the governmental unit having physical custody of a prisoner to defend the appeal in the Supreme Court of this state. 1969 Op. Att'y Gen. No. 69-39.

- There is an initial responsibility for payment of expenses incurred by an agency within the executive authority of this state initiating extradition proceedings, and that agency is under an obligation to secure the indemnification of the funds which it was obligated to expend relative to the escape of a prisoner from the county having physical custody of the prisoner at the time of the escape. 1970 Op. Att'y Gen. No. 70-13.

- Ultimate responsibility for bearing the expenses incurred in the asylum state attending upon the arrest and delivery of the escaped fugitive rests with the governmental unit having the physical custody of the prisoner. 1970 Op. Att'y Gen. No. 70-13.

RESEARCH REFERENCES

ALR.

- What justifies escape or attempt to escape, or assistance in that regard, 70 A.L.R.2d 1430.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.

Right of state prison authorities to administer neuroleptic or antipsychotic drugs to prisoner without his or her consent - state cases, 75 A.L.R.4th 1124.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

Constitutional right of prisoners to abortion services and facilities, 28 A.L.R.6th 485.