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Kentucky Judge Orders Hepatitis C Treatment

A federal court in Kentucky has ordered the Kentucky Department of Corrections (KDOC) to provide hepatitis C treatment to a prisoner suffering from both hepatitis C and cirrhosis of the liver. In response, the KDOC has implemented a treatment plan whereby up to 1,000 prisoners may receive treatment. This is likely the first case in potentially the next wave of prisoner medical litigation. The KDOC did not appeal this judgment.

Michael Paulley, an Army veteran, sought treatment for hepatitis C from the KDOC but was refused, despite Paulley's Veteran's Administration (VA) doctor, liver specialist Cecil Bennet, claiming that without treatment Paulley had a 5050 chance of living to his parole eligibility date of 2004. Additionally, it would have cost the KDOC nothing since the VA was willing to pay for the treatment.

In March of 1999, Paulley filed a §1983 action seeking injunctive relief for treatment plus compensatory and punitive damages. Paulley also moved for class certification. In January of 2000, a federal magistrate found that the KDOC's real motive for denying Paulley treatment was to avoid having to pay to treat other patients with hepatitis C. On March 30, 2000, the District Judge agreed that "money, not medicine" was the driving force behind the KDOC's decision and ordered the KDOC to take "all steps necessary" to allow Paulley's VA physician to treat Paulley.

The following month, the judge denied class certification finding that while 5,000 Kentucky prisoners may be infected with hepatitis C, Paulley's prognosis and the DOC's response to it make his claim "untypical of the proposed class." The damage claims under 42 U.S.C. §1983 and the Kentucky torts of outrage remain unresolved.

Outpacing HIV by 41, hepatitis C, the most common, chronic, bloodborne infection in the U.S., is a potentially fatal disease with an FDA approved treatment regimen requiring expensive Interferon shots, which are only 1020% effective, or Interferon combined with Ribavirin which is 3040% effective. This is a nationwide problem with 2060% of the national prison population infected. Treatment costs between $8,000 and $20,000 per year per prisoner. [See: "Hepatitis C: A Silent Epidemic Strikes U.S. Prisons," PLN Jan. 2001] A few states have implemented a treatment protocol but this protocol may only frustrate treatment and result in a denial of treatment. [See: "Colorado Denies Hepatitis C Treatment as Too Expensive," PLN May 2000] Today, Paulley's virus levels are now nearly undetectable.

The KDOC's plan estimates that the cost per prisoner will be $25,000, which includes the lab work, biopsies, and medication. At a total of nearly $25 million, that's roughly the KDOC's entire medical budget, yet the Kentucky General Assembly has appropriated no additional funds. KDOC spokeswoman, Carol Czirr, says that any patient that qualifies will get the treatment.

The treatment plan contains eight qualifications as well as 17 reasons that prisoners may be excluded. While all the details are not yet available, some of the qualifications include having tested three times for cirrhosis or other liver damage.

Some of the exclusions include highrisk behavior, sexual behavior, body piercing, tattoos, and being within 18 months of parole eligibility. Czirr also claims that implementation of this treatment plan is unrelated to Paulley's lawsuit or the threat of future litigation.

Alan S. Rubin, one of Paulley's attorney's, said that prisoners will get the treatment they need if the guidelines are adhered to fairly. But if the criteria is used "to deny treatment to guys who really need it, then it is just a dodge, and unfortunate," said Rubin. A big fear is that the parole eligibility rule will be used to deny treatment then the parole board will give the prisoner a setback of less than 18 months and treatment will never occur. See: Paulley v. Chandler, Case No. 3:99CVP549H (W.D. KY, March 30, 2000).

Additional Sources: Louisville CourierJournal, Southland Prison News

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Related legal case

Paulley v. Chandler