by Matt Clarke

On July 5, 2022, the U.S. Court of Appeals for the District of Columbia Circuit held that the medical director of the federal Bureau of Prisons (BOP) was entitled to qualified immunity (QI) in a prisoner’s lawsuit over delayed treatment of his Hepatitis-C with direct-acting antiviral (DAA) medication. Since Dr. Jeffrey Allen was also the last defendant to be dismissed, the decision effectively ended the suit.

In December 2015, federal prisoner Jean-Gabriel Bernier applied for DAA treatment for his Hepatitis-C infection. Under the BOP treatment protocol then in effect, patients were divided into four priority groups according to the progression of the disease. Only those in the two groups with the most liver damage were entitled to DAA treatment. Those in other groups were to be monitored and given DAA on a case-by-case basis if their liver damage. Bernier was assigned to one of the latter groups.

BOP’s protocol followed 2013 recommendations from an expert panel of the American Association for the Study of Liver Disease (AASLD) and the Infectious Disease Society of America (IDSA), when “knowledge about how these drugs worked came from clinical trials,” and there was a need “to gain experience with their safety” before treating all infected patients with DAA, the Court recalled.

In October 2015, the AASLD/IDSA expert panel changed its recommendation to advise treating all Hepatitis-C infections with DAA. In October 2016, BOP revised its protocol, making Bernier eligible for DAA treatment. By 2017, he was cured cured.

Bernier then filed suit in federal court for the District of Columbia under 42 U.S.C. § 1983, accusing BOP Medical Director Dr. Jeffrey Allen of deliberate indifference to his serious medical needs, in violation of his Eighth Amendment guarantee of freedom from cruel and unusual punishment. Bernier argued that his December 2015 application for DAA treatment was denied solely because it was expensive — about $94,000. Allen filed a motion to dismiss or for summary judgment based on QI. When the district court denied, it Allen appealed.

Reviewing de novo, the D.C. Circuit assumed without deciding that a medical treatment decision based solely on nonmedical considerations could state a claim. It noted that the district court had denied the motion because one 2015 test result showed Bernier was entitled to a higher priority and thus treatment under the then-existing policy. However, Bernier had conceded that the group he was assigned to then was proper, waiving that issue – and preventing it from being used to deny QI to Defendants, the Court said.

That left Bernier’s sole theory on appeal was that Allen denied treatment in 2015 “in reliance upon a prioritization protocol no longer consistent with accepted medical judgment and based entirely upon an intent to minimize costs.” However, the Court noted that Allen’s written treatment decision said it was based on the type of infection, non-DAA treatment history, and lack of evidence for advanced liver disease.

Further, to defeat Defendant’s assertion of QI, the Court said that Bernier must point to a precedent existing in 2015 that showed he had a constitutional right to DAA treatment. But since his treatment denial occurred within two months of the medical community’s decision that it was appropriate for lower priority patients like him, the right was not clearly established at the time. Therefore, the Court reversed the denial of QI to Allen.

Bernier was represented by D.C. attorney Theodore A. Howard of Wiley Rein LLP. See: Bernier v. Allen, 38 F.4th 1145 (D.C. Cir. 2022).

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