by Dale Chappell

A class-action lawsuit against the Pennsylvania Department of Corrections (DOC) over the lack of adequate treatment for prisoners with hepatitis C (HCV) survived a motion for summary judgment, and the parties have reached a preliminary settlement agreement.

Salvatore Chimenti, Daniel Leyva and David Maldonado filed suit in federal court in 2015 on behalf of themselves and other Pennsylvania state prisoners diagnosed with HCV, alleging the DOC violated their federal and state constitutional rights by denying them proper care. The DOC moved for summary judgment but the district court largely denied their motion, finding most of the claims were sufficient to go to trial.

The prisoners argued that the DOC’s refusal to treat their HCV with the current “standard of medical care” by using direct-acting antiviral drugs (DAAs), such as Harvoni or Sovaldi, constituted deliberate indifference because the denial of treatment was an effort to save money and not based on medical considerations. The plaintiffs offered evidence where the DOC had acknowledged it would cost about $70 million to treat every prisoner with HCV, and that prison officials took steps to avoid treating HCV-positive prisoners by prioritizing treatment based on the severity of their illness.

They pointed to the fact that as of September 2017, the DOC had treated only 297 of the 7,521 prisoners with HCV, and that only 10 percent of HCV-positive prisoners were treated with DAAs. They compared the success rate of non-DAA treatment (with interferon and older drugs), which was at best 70 percent, to treatment with DAAs, which had a cure rate of over 90 percent and fewer side effects. The DOC responded that it had implemented a new HCV treatment protocol but still prioritized prisoners according to severity.

The plaintiffs were granted class-action status, with the class defined as: 1) all prisoners currently incarcerated in the DOC, 2) who have a diagnosis of HCV, 3) who have at least 12 weeks remaining on their sentence and 4) who have a life expectancy of at least a year. For relief, they requested that the DOC implement an HCV treatment protocol that meets the “community standards of care for patients with Hep-C,” including treatment with DAAs, and that the DOC establish “ongoing monitoring and medical care” for HCV-positive prisoners.

The DOC moved for summary judgment, arguing, among other things, that the plaintiffs had not proven the DOC was deliberately indifferent to their medical needs and that they had not exhausted their administrative remedies.

The district court disagreed in a July 12, 2018 order.

Summary judgment is proper if the party moving for summary judgment shows there is “no genuine dispute as to any material fact” and the party is entitled to judgment as a matter of law, pursuant to Fed.R.Civ.P. 56(A). A fact is “genuine” and “material” if it would lead a reasonable jury to return a verdict for the plaintiff. In ruling on a motion for summary judgment the court must consider the facts “in the light most favorable” to the plaintiff; to avoid summary judgment the plaintiff must provide facts “sufficient to establish the existence of an element essential to that party’s case.”

The district court held that while some prisoners had failed to exhaust their administrative remedies, the rule of “vicarious exhaustion” applied, meaning that as long as one class member had properly exhausted their administrative remedies, the entire class was deemed to have done so.

The court also found the DOC’s efforts to save money by prioritizing treatment according to the severity of HCV, instead of properly treating all prisoners, met the deliberate indifference standard. Deliberate indifference occurs when a prison official “intentionally denies or delays access to medical care or intentionally interferes with the treatment once prescribed,” the district court wrote. “A prison official acts with deliberate indifference to a serious medical need when he knows of and disregards an excessive risk of inmate health or safety.”

Accordingly, the court found that the prisoners’ substantive claims survived summary judgment while dismissing several other claims, and allowed the case to proceed. The personal injunctive relief claim raised by Maldonado was dismissed as he had been paroled while the case was proceeding. See: Chimenti v. Wetzel, U.S.D.C. (E.D. Penn.), Case No. 2:15-cv-03333-JP; 2018 U.S. Dist. LEXIS 115961.

On November 19, 2018, the parties submitted a joint motion for preliminary approval of a settlement in the class-action lawsuit. Under the proposed settlement, the DOC will adopt a new HCV protocol and provide DAA medications to prisoners with chronic HCV who have a metavir fibrosis score of F-2, F-3 or F-4 (the most serious conditions) within six months.

Further, “Starting July 1, 2019, and for each of the following two years to June 30, 2021, the DOC shall treat no fewer than 1,500 eligible inmates each year with DAA, based on the priority provisions of the DOC Hepatitis C Protocol. For the year, July 1, 2021 to June 30, 2022, the DOC shall treat 2000 eligible inmates with DAA, based on the priority provisions of the DOC Hepatitis C Protocol.”

The settlement also provides for flu and hepatitis A and B vaccinations for prisoners who have tested positive for HCV, and amends the definition of the class to include “All persons who are currently incarcerated in a Pennsylvania Department of Corrections (“DOC”) facility, or who are incarcerated in the DOC in the future, with a diagnosis of Chronic Hepatitis C, who have a release date from the DOC that is at least twenty (20) weeks in the future, who have a life expectancy of over one year, and for whom DAA treatment is not contraindicated under the terms of the Hepatitis C Protocol.”

The settlement, which has not yet been approved by the district court, includes a monitoring provision whereby the attorneys representing the class members will receive reports and documentation from prison officials to ensure compliance with the agreement. The DOC will also pay $195,000 in attorney fees to class counsel.

The prisoners are represented by attorney David Rudovsky with Kairys, Rudovsky, Messing, Feinberg & Lin, LLP, by the law firms of Dechert, LLP and Structure Law Group, LLP, and by the Pennsylvania Institutional Law Project.

“We believe that this settlement, if approved by the court, will be a landmark in medical care in our state prisons and will greatly advance public health in Pennsylvania. The [DOC] has taken an important step in health care that puts them at the forefront of care for people with chronic hep C,” Rudovsky stated.

According to news reports, the DOC has budgeted $13.2 million for HCV treatment during fiscal year 2018-19; the average per-prisoner treatment cost is around $20,000. The class-action lawsuit in Pennsylvania is one of several filed nationwide by HCV-positive prisoners seeking treatment with the newer, more effective DAA drugs.

Mandy Altman, program manager for the National Hepatitis Corrections Network, said an estimated 30 percent of people with HCV cycle through prisons or jails each year. “The World Health Organization goal is to eliminate hepatitis by 2030,” she added. “The only way you can do that is to treat correctional populations.” 

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Additional sources: www.usnews.com, www.philly.com

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