concurring in part and dissenting in part:
I agree that the District of Columbia and its agents must exercise due care in addressing the health needs of persons confined in the District’s correctional institutions. In holding that this duty is “non-delegable,” however, the court is effectively imposing liability upon the District without requiring proof of fault. Under the “non-delegable duty” doctrine, the District must compensate the plaintiff even if all District employees have exercised due care in the selection of a health care provider and even if the District’s own conduct has been in all respects free of negligence. I do not believe that the District should be held liable for. the negligence of another over whose activities the District had no control.
I agree that the judgment should be reversed, however, because in my view, Ms. Herbert presented sufficient evidence to permit an impartial jury to find that the District failed to comply with the applicable standard of care. More particularly, the District’s failure to require from PDC proof that PDC had obtained liability insurance coverage for its employees could fairly be viewed as negligent, and I believe that the issue is one which the jury could properly decide without the presentation of expert testimony.
I.
Turning first to the question of “non-dele-gable” duty, it is important to note at the outset that we are not dealing here with the District’s affirmative constitutional responsibilities vis-a-vis prisoners in its custody. The Supreme Court has held that “the State has a constitutional obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has incarcerated.” West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988) (citation omitted). Moreover, this constitutional obligation is non-delegable:
Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.
Id. at 56, 108 S.Ct. at 2259 (footnote omitted).
The present case, however, does not involve the kind of conduct which gives rise to an Eighth Amendment claim. The defendants are alleged to have been negligent, not cruel. “It is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishment Clause.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). As my colleagues explicitly recognize, “an inadvertent failure to provide adequate medical care cannot be said to constitute a violation of the Eighth Amendment.” Maj. op. at 1180 (quoting Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)). Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Estelle, supra, at 106, 97 S.Ct. at 292. On the contrary, a plaintiff seeking to establish a constitutional violation must prove “deliberate indifference to a serious medical need.” Id.
To hold that the duty not to be cruel or wanton or obdurate cannot be delegated away is one thing; to expand that doctrine to make the District liable for the ordinary negligence of a contract health care provider, without proof of lack of due care on the part of the District, is quite another. “The [District] is not an insurer of the safety of a prisoner,” Matthews v. District of Columbia, 387 A.2d 731, 734 (D.C.1978); see also maj. op. at 1180-81; or, by analogy, of the prisoner’s health. The majority’s ruling in Ms. Herbert’s favor, however, effectively makes the District the guarantor of satisfactory performance by PDC and its employees, even though the District has no control over that performance in a given ease. Moreover, the majority decision imposes liability without fault upon the District (and thus on the taxpayers) by judicial fiat and without legislative sanction.
*1187Whether the “non-delegable duty” doctrine applies to cases such as this one is a question of first impression in this jurisdiction. The majority cites two state court decisions in support of its position, but neither persuades me that this doctrine should be expanded beyond its constitutional moorings in the Cruel and Unusual Punishment Clause.
The earlier of these cases, Shea v. City of Spokane, 17 Wash.App. 236, 562 P.2d 264 (1977), aff'd. 90 Wash.2d 43, 578 P.2d 42 (1978), contains broad language, some of which is quoted by Judge Terry, see maj. op. at 12,1 supporting Ms. Herbert’s position on the question of non-delegable duty. The facts of Shea, however, are quite different from, and far more extreme than, those in the present case. Shea, then twenty years old, became ill while incarcerated for driving while intoxicated. The jailer denied him permission to call a doctor to request medication. Shea became dizzy and fell, sustaining a severe spinal injury. Later, in great pain and incontinent, he was placed in a padded cell with no toilet or water and kept there for almost two days. The jail doctor, a physician with whom the City had a contract, diagnosed Shea as suffering from alcohol withdrawal. The doctor failed to detect the spinal injury. Ultimately, Shea was examined at a hospital, and it was determined that he had sustained various permanent injuries, including partial and total paralysis. 17 Wash.App. at 237-40, 562 P.2d at 265-66.
The intermediate appellate court decided Shea four months after the Supreme Court’s decision in Estelle v. Gamble, supra. In Estelle, the Supreme Court had held that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” 429 U.S. at 104, 97 S.Ct. at 291 (citation and internal quotation marks omitted). The facts of Shea bring to mind the language of Estelle. The court’s expansive articulation of the City’s non-delegable duty was written in response to a record that at least arguably reflected conduct a good deal more serious than simple negligence. There was substantial evidence of deliberate indifference by the City to Shea’s medical needs. See Estelle, supra, 429 U.S. at 104-05, 97 S.Ct. at 291-92. Such deliberate indifference amounts to a constitutional violation which the State has a non-delegable duty to avoid. See West, supra, 487 U.S. at 55, 108 S.Ct. at 2258-59.
Concededly, the court’s rationale in Shea did not depend on a showing of a constitutional wrong. “It is well to remember, [however], that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.” Kraft v. Kraft, 155 A.2d 910, 913 (D.C.1959). In Shea, the plaintiff suffered harm for which the City of Spokane was demonstrably at fault. I am reluctant to invoke that decision here to impose liability on the District on a theory which does not require a showing of fault.
The second decision on which the majority relies is Medley v. North Carolina Dep’t of Correction, 330 N.C. 837, 412 S.E.2d 654 (1992). In Medley, the court held that the State was liable to a prisoner under North Carolina’s Tort Claims Act (NCTCA), as well as under the State and Federal Constitutions and the common law,2 for harm sustained as a result of the negligence of a private physician.3 The court based its decision on the theory that the State’s duty to provide medical care to persons confined in its correctional institutions was non-delegable.
In reaching this conclusion, the court drew an analogy between the State’s duty to its prisoners and the obligation of a father to provide for his minor children, “a duty he *1188may not shirk, contract away, or transfer to another.” Id. at 847, 412 S.E.2d at 657 (quoting Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414, 415 (1945)). The court indicated that if the father cannot avoid his obligation by delegating it, so too the State cannot escape liability by contracting with a private physician. Id.
This analogy may be an apt one, but it compels a conclusion opposite to the one reached by the court. Questions of parental immunity aside, we may assume that a father who observes that his child is seriously ill may not lawfully “shirk” his obligation to take the child to a doctor or to the hospital. If the father promptly employs a physician of acceptable reputation, however, he has done all that he reasonably can do. The father does not become personally liable to his child for injuries sustained because an apparently reputable physician performed the job incompetently and failed to comply with the applicable standard of care. Just as the father cannot fairly be faulted for the negligence of a doctor whom he has reasonably chosen to treat his child, so, too, the District ought not to be held hable for a mistake made by a health care provider in the absence of any showing that the provider was negligently selected.4
In Rivers v. State, 159 A.D.2d 788, 552 N.Y.S.2d 189 (3d Dept.1990), a surgeon performed a hernia operation on a prison inmate. The inmate alleged that the surgery had been negligently performed. The State did not employ or even select the surgeon, although the State’s referring doctor knew that the surgeon performed operations at the hospital in question. The trial court, relying in substantial part on the decision in Shea, held that the State was liable for the surgeon’s negligence on the theory that the State’s duty to provide health care to the inmate was non-delegable and that the surgeon’s failure to exercise due care was attributable to the State. Rivers v. State, 142 Misc.2d 563, 537 N.Y.S.2d 968, 971-74 (Ct. Claims 1989). The appellate court reversed, holding that the State should not be held to be “the guarantor of the adequacy of medical services under all circumstances, including those beyond its control.” 552 N.Y.S.2d at 189. The court went on to state that the rule applied by the trial court would
lift prisoners’ rights vis-a-vis malpractice beyond the rights afforded to all others. Claimant’s status as a prisoner and his impaired ability to make health-related decisions totally on his own hardly justifies such an extreme result in terms of the State’s responsibility.... [T]he premise for imputing liability is the element of control. We consider that rationale the appropriate test of responsibility.
Id. at 189-90 (citation omitted). Noting that the surgeon was an independent contractor and that no negligence was established on the part of the State, the court concluded that the State was not responsible for Rivers’ injuries. Id. at 190.
I agree with the appellate court’s analysis in Rivers.5 Here, we are being asked to award damages against the District in the absence of proof of negligence or wrongful conduct on the District’s part. Liability without fault is the exception rather than the rule, and I do not believe that we should take the formidable step of imposing such liability *1189upon the District and its taxpayers without specific legislative authorization. Accordingly, I do not agree that Ms. Herbert can prevail on a theory of non-delegable duty.
II.
I have attempted to demonstrate that the District has a right to contract with a private health provider like PDC without subjecting itself to liability without fault for the negligence of a PDC employee in a given ease. The obvious corollary to that proposition, however, is that the District must exercise due care in selecting and, where appropriate, in supervising the activities of those to whom it has entrusted the health of the prisoners in its custody. A resident of the District of Columbia Jail or of Lorton can do little to protect his or her interests against an unsympathetic health care provider. Courts should not be satisfied with superficial or token compliance by the District with its responsibilities in this area.
In the present case, the contract between PDC and the District required PDC to provide liability insurance coverage for all of PDC’s employees. This requirement makes eminent sense, for without it the prisoner has no meaningful recourse if PDC does not do its job properly. PDC never demonstrated to the District, however, that all of its employees were insured. At the time of Ms. Herbert’s injuries, there was no insurance coverage for Charles Lawson, the physician’s assistant who committed the malpractice which resulted in Ms. Herbert’s injuries. As a result of the lack of coverage, Ms. Herbert’s judgment against Lawson is apparently worthless.
Ms. Herbert contends that the District violated the applicable standard of care by not enforcing the terms of the contract and requiring proof of coverage. My colleagues respond that the District did take some steps to monitor PDC’s performance, and that, under all of the circumstances, Ms. Herbert was required to adduce expert testimony. According to the majority, “the monitoring by the District of PDC’s compliance with the terms of the contract is a subject with which the average lay person would not be familiar.” Maj. op. at 16 (citations omitted).
Although the question is a close one, I do not agree that expert testimony was required. “Where negligent conduct is alleged in a context which is within the realm of common knowledge and everyday experience, the plaintiff is not required to adduce expert testimony either to establish the applicable standard of care or to prove that the defendant failed to adhere to it.” Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C.1991). To be sure, “courts should not leave it to a jury of tailors and haberdashers to pass judgment [unaided by expert testimony] on how to make a wet and rolling deck in a seaway a safe place to work.” Id. (quoting Zinnel v. United States Shipping Bd. Emergency Fleet Corp., 10 F.2d 47, 49 (2d Cir.1925) (dissenting opinion)). Juries, in other words, ought not to be permitted to speculate about subjects which are not readily understandable by lay persons without expert assistance.
We are not dealing here, however, with especially complicated esotérica. The genius of the jury system is that ordinary citizens are usually endowed with that most precious of qualities, common sense. In my opinion, they are intelligent enough to determine on their own whether it was reasonable for the District to delegate responsibility for the health of its prisoners to a company like PDC without first insisting on proof of insurance coverage — whether, to put it bluntly, the District should have required performance, not promises; deeds, not words. In their daily lives, jurors frequently confront the question whether it makes sense to trust someone rather than to make him demonstrate his credit or qualifications or to provide written references. The task in this case ought not to be beyond them.
III.
For the foregoing reasons, I would decline to hold the District liable on the basis of *1190breach of a “non-delegable” duty. I would, however, reverse the judgment in favor of the District and remand the case for further proceedings consistent with the law as set forth in this opinion. Except as specifically noted, I join the opinion of the court,
.The court also stated that the City's duty must go beyond the mere exercise of ordinary care in the selection of a jail physician as contended by defendant. Rather, the City’s liability includes the negligence of the jail physician because the duty to keep the prisoner in health is non-delega-ble.
17 Wash.App. at 242, 562 P.2d at 268.
. In light of the court’s construction of the NCTCA, the discussion of the State’s constitutional and other non-statutoiy obligations appears to be dictum.
. Like PDC in this case, the physician had been engaged to treat prisoners pursuant to a contract with the Department of Corrections.
. Ms. Herbert relies heavily on Henderson v. Harris, 672 F.Supp. 1054 (N.D.Ill.1987). In Henderson, the court held that the United States may be held liable to a federal prisoner for negligent medical treatment by a private health care provider because “a jailer’s duty to provide reasonable medical care is non-delegable.” Id. at 1063 (citation omitted). The analysis in Henderson is unpersuasive, however, because the court appeared to refer interchangeably to the constitutional duty to avoid cruel and unusual punishment and the common law obligation to exercise reasonable care. The court stated, for example, that the United States was potentially liable for "alleged negligence" because, inter alia, "[c]ontracting with private health service agencies will not relieve the federal government from its constitutional obligation.” Id. (Emphasis added.) The Supreme Court has held, however, that there is no constitutional right to non-negligent medical treatment. Whitley, supra, 475 U.S. at 319, 106 S.Ct. at 1084.
. I acknowledge, however, that Rivers is one step removed from this case. There, the doctor at the correctional facility, whose position roughly corresponded tó that of PDC, referred the plaintiff to the surgeon who was alleged to have been negligent. In the present case, PDC and its agent, Charles Lawson, were the negligent parties, and not simply parties who referred the prisoner to a negligent actor.