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$50,000 HCV Settlement and New Treatment Protocol Approved in Colorado

$50,000 HCV Settlement and New Treatment Protocol
Approved in Colorado

by Bob Williams

The federal district court in Colorado has approved a settlement awarding $50,000 and treatment for hepatitis-C (HCV) infection to six named plaintiffs. The Colorado Department of Corrections (CDOC) has instituted a new treatment protocol as part of the settlement.

Tim Fenner was denied HCV treatment in 1999. The CDOC required one-year of drug and alcohol therapy after discovering HCV by blood tests but before a liver biopsy would be performed to assess the extent of the damages. [PLN, May 2000, p. 7] Fenner had completed the therapy well-after contracting HCV but before his HCV diagnosis. The CDOC would not treat Fenner's HCV until he repeated the programs, despite his symptoms of advanced HCV infection.

Fenner filed a §1983 complaint claiming deliberate indifference to a serious medical need for denying HCV treatment. The district court denied the CDOC summary judgement based on Fenner's lack of access to the Internet data used by the CDOC to support summary judgment. Qualified immunity was also denied based on Fenner's claims being brought against the state in official capacity. The CDOC failed to challenge individual capacity claims. See: Fenner v. Suthers, 194 F.Supp.2d 1146 (D.Colo. 2002). [PLN, Oct. 2002, p. 24]

Other Colorado HCV suits were consolidated with Fenner's action and more plaintiffs joined for a total of six plaintiffs. Now represented by counsel, a bargain was struck whereby the plaintiffs would immediately begin treatment, the CDOC would implement a new treatment protocol, and the suit would settle for $60,000 ($10,000 per plaintiff). One plaintiff, Terry Akers, refused believing he was already near death and thus too far along to benefit from the settlement. The remaining five plaintiffs received $5,000 each with $25,000 going to counsel for a total of $50,000.

HCV is a progressive disease which is fatal if left untreated. There are several types of HCV called genotypes. They all cause the same disease and are treated the same way. The most difficult to treat is genotype 1, affecting about 75 percent of those with HCV. The remaining HCV infections are genotypes 2 and 3. HCV was identified in 1989 and was shown responsible for 90 percent of non-A and non-B hepatitis infections.

HCV is primarily transmitted blood-to-blood, usually through intravenous drug use. Other causes include tattooing or body piercing with contaminated needles, nasal drug use with contaminated paraphernalia, and less frequently by sexual transmission. Sensitive screening now prevents HCV infection from blood transfusions.

There are both acute and chronic forms of HCV with 55 percent to 85 percent of acute cases becoming chronic. While national estimates of prison population infections are 50 percent the CDOC estimates the Colorado prison population is about 20 percent infected. The standard treatment approved by the FDA in 1998 was daily shots of Interferon. An antiviral medication, Ribavirin, was later added to the mix. Today, the new standard of treatment consists of weekly shots with long-lasting pegylated Interferon combined with twice-daily Ribavirin pills.

The new treatment protocol, a copy of which must be provided to those who test positive for HCV as well as displayed in the CDOC for one year, requires the new standard of treatment (peg-intron and Ribavirin) be implemented upon six conditions the prisoner must meet: (1) have an ALT value that is at least 50 on two or more occasions at least six months apart; (2) sign a contract agreeing to attending alcohol and drug classes (written proof of past program participation will now be accepted) and to have random urine testing for alcohol, drugs, and nicotine for six months before beginning treatment and while being treated; (3) have at least 18 months left to mandatory release; (4) agree to have a liver biopsy done before treatment begins; (5) agree to have blood tests before treatment to see if the treatment is safe to begin; and (6) agree to have blood tests during treatment to see if the treatment is working and if it is causing any harm.

If the treatment does not reduce the HCV viral load by 90 percent in the first 12 weeks treatment stops; otherwise it continues for up to 24 weeks for genotype 2 or 3 with an estimated 80 percent cure rate and up to 48 weeks for genotype 1 with an estimated 45 percent to 50 percent cure rate.

Despite the new protocol and treatment regimen, Fenner was given the old Interferon at half the normal dosage. His symptoms continued to advance. After grieving the issue CDOC medical switched to the new treatment regimen and by the end of 2003 his symptoms had cleared up and his blood count had returned to normal. Hundreds are now receiving HCV treatment in the CDOC. See: Fenner v. Suthers, USDC D CO, Case No. 00-N-1579 (D. Colo. 2003).

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Related legal case

Fenner v. Suthers