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Permanent Injunction Requires Full HCV Retreatment for Florida Prisoner

Permanent Injunction Requires Full HCV
Retreatment for Florida Prisoner

by John E. Dannenberg

The U.S. District Court (S.D. Fla.) is-sued a permanent injunction on July 24, 2003 ordering James Crosby, the Secretary of the Florida Department of Corrections (FLADOC) and its contract health care provider Wexford Health Sources, Inc. (Wexford) to immediately provide one full course of HCV (hepatitis-C) retreatment consisting of the newer Pegylated Interferon and Ribavarin regimen to a Florida state prisoner who had been abruptly taken off his earlier HCV Interferon treatment.

Allen Brash was being treated with an older version of Interferon for his HCV disease in a northern Florida prison when he was assaulted by three guards. Upon his ensuing transfer to a southern Florida prison, he was denied further treatment by Wexford, who then labeled him a "treatment failure." The record showed that his viral load had dropped sharply, but that he still had the virus.

Represented by attorney Randy Berg of Miami's Florida Justice Institute, Inc., Brash sued FLADOC and Wexford to gain retreatment. Although expert medical witness Dr. Bennet Cecil of Kentucky recommended retreatment with the newer regimen of Pegylated Interferon plus Ribavarin, the Magistrate recommended against relief. U.S. District Judge James C. Paine rejected the recommendation and granted a preliminary injunction, pending corroboration of the retreatment regimen by a court-appointed gastroenterologist. Wexford agreed to comply, but FLADOC moved to have the injunction terminated as moot. Berg defeated the mootness claim and gained a permanent injunction on the grounds that the now approved retreatment could take as long as a year.

In converting the preliminary injunction into a permanent one, the court expressly found that "[p]laintiff's rights under the Eight[h] Amendment to the U.S. Constitution will be violated unless the plaintiff continues to receive treatment for his Hepatitis C and cirrhosis at Okeechobee Correctional Institution, or any other facility where suitable treatment can be provided." The court made the further important finding under the Prison Litigation Reform Act that "this Order is narrowly drawn and extends no further than necessary to correct the violation of the alleged federal right of which this Court previously found there was a likelihood of success on the merits and is the least intrusive means necessary to correct that federal right without adversely impacting public safety or the operation of the criminal justice system."

The court declared Brash to be the prevailing party for purposes of awarding attorneys' fees and gave the parties 60 days to settle the fees issue or return to court for a judgment. The parties settled the plaintiff's claim for attorneys' fees, expenses, and costs for $37,892. No appeal was taken. See: Brash v. Wexford Health Sources, Inc., et al., USDC, S.D. Fla. Case No. 02-1433 1 -Civ-Paine/Lynch (July 24, 2003).

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Related legal case

Brash v. Wexford Health Sources, Inc.