In 1999 the ODOC reported to state legislators that an estimated 30 percent of the state's 10,000 prisoners suffer from HCV, but none were receiving treatment, which averages between $18,000 and $20,000 per person. Instead, in an attempt to avoid the cost of treating HCV infected prisoners, ODOC officials implemented a rigid, medically unacceptable HCV protocol that is designed to deny as many prisoners as possible the life-saving treatment they need.
On March 23, 2001, fifty-seven prisoners filed grievances related to the delay and denial of HCV diagnosis and treatment, in an effort to comply with the exhaustion requirements of the Prison Litigation Reform Act (PLRA).
In an obvious effort to deprive prisoners of access to the courts as long as possible, ODOC officials simply refused to answer any of the HCV grievances. So, on July 5, 2001, all fifty-seven prisoners filed grievances related to their refusal to answer the previous grievances. They also filed grievance appeals, arguing that the refusal to answer their grievances constituted a denial, entitling them to proceed through the three-step grievance process.
On July 12, 2001, the Oregon State Penitentiary (OSP) Grievance Coordinator left the July 5, 2001, grievances and grievance appeals unprocessed, informing prisoners that they could not take either action under the ODOC grievance rules. Coincidentally, he noted that he had received the responses to the original grievances and would deliver them soon.
On July 16, 2001, the responses to the March 23, 2001, HCV grievances were finally served on the prisoners. Every grievance had been denied for one of approximately ten different reasons.
The prisoners filed grievance appeals on July 27, 2001. They weren't served with the denials of those appeals until September 10, 2001. This was the final step of the grievance process for all but eleven of the first 57 prisoners to file HCV grievances. On September 13, 2001, the remaining eleven prisoners filed grievance appeals that were finally denied on October 9, 2001.
More than one hundred ODOC prisoners have filed grievances related to the inadequate diagnosis and treatment of HCV, but ODOC officials have denied every grievance.
The 298 page complaint filed in November includes 76 claims, alleging violations of the Eighth Amendment and the Americans with Disabilities Act (ADA) related to: the ODOC's implementation of a medically unacceptable HCV policy; delay and denial of HCV diagnosis and treatment pursuant to monetary and other impermissible reasons under the ODOC's Therapeutic Levels of Care (TLC) policy; denial of access to medical personnel qualified to exercise judgment concerning the diagnosis and treatment of HCV; failure to inquire into essential facts; interference with medical judgment by non-medical factors; and related state law claims.
The complaint also includes claims alleging that the ODOC grievance process denies prisoners due process, access to the courts and access to life-saving medical care in violation of the First, Eighth, and Fourteenth Amendments.
Prisoners seek: modification of the ODOC HCV policy to comply with medically acceptable standards; mandatory HCV testing of all ODOC prisoners; ongoing treatment and follow up care of all prisoners who are HCV+ and want treatment; implementation of procedures designed to prevent the spread of HCV within the prison system; education about the causes, affects, symptoms and treatment of HCV; and a panel of HCV experts to carry out the diagnosis and treatment of the HCV infected prisoners. They also seek: compensatory damages totaling $17.5 million dollars; punitive damages of $250,000 against one defendant and $100,000 against the each of the remaining defendants; and an award of attorney fees and costs.
While the ODOC continues to deny any wrongdoing, since the initiation of this action they have started approximately six prisoners on interferon treatment (three in one day), who had been repeatedly denied treatment for several years.
The prisoners are represented by Michelle Burrows of the Portland, Oregon firm of Kohler & Burrows. She represents more than 400 ODOC prisoners from around the state who have contacted her concerning the ODOC's refusal to properly diagnose and treat their HCV infection. This is one of many suits filed nationwide in recent months concerning the denial of HCV treatment. [See PLN July 2001 & January 2001]. We will continue to report on significant developments in the case. See: Rodger R. Anstett et. al. v. State of Oregon, et. al. , USDC D OR, No. CV01-1619BR.
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Related legal case
Anstett v. State of Oregon
|Cite||USDC D OR, Case No. CV01-1619BR|