by Derek Gilna

For many years, the Florida Department of Corrections (FDC) has largely denied treatment to prisoners infected with hepatitis C – a blood-borne disease that can have serious long-term health effects. In doing so, state prison officials concerned more about the cost of medical care than human suffering followed the all-too-common practice of rationing treatment for prisoners who have no other options for their healthcare needs. However, U.S. District Court Judge Mark Walker put an end to that practice on November 17, 2017, ordering the FDC to immediately start treating all hep C-infected prisoners in its custody with Direct Acting Antiviral (DAA) medications.

According to the Judge Walker, “Plaintiffs claim that Defendant is acting with deliberate indifference to their serious medical needs, in violation of the Eighth Amendment, and that Defendant is discriminating against them on the basis of disability in violation of the Americans with Disabilities Act ... and the Rehabilitation Act.” The district court also found the lawsuit was suitable for class-action certification, since “the parties presented evidence showing that the proposed class includes at least 7,000 inmates and likely includes upward of 20,000 inmates.”

The court wrote that the class would include “all current and future prisoners in the custody of the Florida Department of Corrections who have been diagnosed, or will be diagnosed, with chronic hepatitis C virus (HCV),” and the court would determine “Whether FDC’s policies and practices for HCV-treatment constitute deliberate indifference to serious medical needs, in violation of the Eighth Amendment.”

Before the class was certified, also on November 17, 2017, a five-day hearing was held during which the district court took testimony from expert witnesses. Following the hearing, the court concluded “that FDC has not treated HCV-infected inmates as required by the Constitution. Moreover, although FDC has tried to moot this case by promising to change its practices going forward, this Court finds that a preliminary injunction is necessary to ensure that inmates with HCV receive medical care in a timely manner.”

The district court noted, “To obtain a preliminary injunction, Plaintiffs must clearly show that: (A) they have a substantial likelihood of success on the merits of their claims; (B) an injunction is necessary to prevent irreparable injury; (C) the threatened injury outweighs the harm that an injunction would cause defendant; and (D) an injunction would not be adverse to the public interest.”

The court found the medical evidence presented at the hearing established that untreated hepatitis C was a serious health problem that caused long-term liver damage, and could possibly lead to death: “liver scarring places patients ‘at risk of liver failure or liver cancer.’... liver failure carries with it a host of serious symptoms, including bleeding from any site, fluid accumulation in the legs or abdomen, life-threatening infections, and failure of other organs such as the kidneys ... liver cancer is ... untreatable, and ‘has a very dismal prognosis.’”

However, the introduction of DAA medications in 2013, such as Harvoni and Sovaldi, was a game-changer for people with hep C, since they had fewer side-effects than previous drugs, a shorter course of treatment and were effective in curing HCV over 90% of the time. The only problem was that they were much more expensive, costing almost $40,000 per Florida prisoner. [See: PLN, Aug. 2015, p.22; July 2014, p.20].

The district court noted that the named plaintiffs had long been diagnosed with hep C, and prison officials were very familiar with the severity of their medical condition and need for effective medical care. “All three Plaintiffs have been complaining about their lack of treatment for years,” the court said. “On May 11, 2017, Plaintiffs initiated this lawsuit against the Secretary of FDC.... After months of litigating, FDC has finally begun to treat Plaintiffs with DAAs.”

The district court cited the state prison system’s “long and sordid history of failing to treat HCV,” adding, “As the years went on, FDC officials recognized that inmates were dying from HCV because they were not being treated.... Mr. [Tom] Reimers, the FDC administrator responsible for overseeing the [private medical] contractors, recognized that inmates with HCV were not being treated and found the lack of treatment to be unacceptable.... Again, the reason why inmates weren’t being treated was because of a lack of funding.”

The court further wrote in its 32-page ruling that the Eleventh Circuit had enumerated various examples of conduct by prison medical officials that are considered more than mere negligence, including “(1) knowledge of a serious medical need and a failure or refusal to provide care; (2) delaying treatment for non-medical reasons; (3) grossly inadequate care; (4) a decision to take an easier but less efficacious course of treatment; or (5) medical care that is so cursory as to amount to no treatment at all.” The plaintiffs argued that prison officials had been “deliberately indifferent under nearly every formulation of the standard.” The district court agreed, stating, “The record is replete with evidence to support this conclusion.”

The court ordered the FDC to “update its HCV-treatment policy in line with the shortcomings noted by [medical experts] during the hearing before this Court so that there is a clear plan for doctors and practitioners to follow, ... [and to] formulate a plan to implement its policy by screening, evaluating, and treating inmates in line with the directions and timelines identified by [medical experts] during the hearing before this Court.” The plan must be presented to the district court by December 1, 2017, and Judge Walker said he would “not tolerate further foot dragging” by prison officials. See: Hoffer v. Jones, U.S.D.C. (N.D. Fla.), Case No. 4:17-cv-00214-MW-CAS.

This is the first class-action lawsuit involving prisoners infected with hep C that has resulted in a preliminary court order requiring prison officials to provide treatment. The plaintiffs in the case are represented by the Florida Justice Institute (FJI).

“The general public has hepatitis C at a rate of a little over 1 percent, but in the prison population, it’s over 15 to 40 percent,” noted FJI executive director Randall Berg. “When you have one third of the Florida prison population being released every year, it should be a public health concern that these people get treated while they are in prison so when they get out, they don’t transmit it to others.” 

Additional source: Miami Herald

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