On December 6, 2018, the Eighth Circuit Court of Appeals upheld class certification in a lawsuit alleging the Missouri Department of Corrections (MDOC) and Corizon Health failed to provide adequate medical screening and treatment to prisoners with hepatitis C (HCV).
MDOC prisoners Michael Postawko, Christopher Baker and Michael C. Jamerson were granted class certification by the district court following a hearing in July 2017. [See: PLN, May 2018, p.40]. Their complaint alleged the medical standard of care adopted by organizations such as the Infectious Diseases Society of America and the American Association for the Study of Liver Diseases recommends that almost all persons with chronic HCV receive direct-acting antiviral (DAA) drugs, which have a cure rate of over 90 percent.
The lawsuit accused the defendants of providing DAA treatment only to prisoners with an AST to Platelet Ratio Index (APR) score – a method to determine the presence or degree of cirrhosis or fibrosis – of 2.0 or above, and they exclusively relied on that score to decide whether or not a prisoner would be considered for DAA treatment.
A low APR score, however, does not provide conclusive evidence. In fact, over half of all people who suffer from cirrhosis will not have an APR score of 2.0 or above. For that reason, other methods such as a liver biopsy are conducted to reliably determine if a person is suffering from fibrosis or cirrhosis. Prisoners with an APR score of less than 2.0 received a blood draw every six months and sometimes counseling.
The district court reviewed evidence showing that prisoners with low APR scores were denied DAA treatment even when they had received an independent diagnosis of cirrhosis. The rate of HCV among Missouri prisoners was estimated at 10 to 15 percent of the population, and it was likely the class numbered at least 2,000 – though it could be much higher. This met the numerosity requirement for class-actions under Federal Rule of Civil Procedure 23(a).
“Class certification allows us to force the prison system to abandon its medically indefensible policy of withholding a cure to a serious, sometimes fatal disease,” said Tony Rothert, legal director of the ACLU of Missouri. “Prison officials are causing thousands of inmates unnecessary suffering – and sometimes death.”
On appeal, the Eighth Circuit agreed the record supported the district court’s conclusion that the claims of the class members were both common and typical. The certification of a class of Missouri prisoners who have been diagnosed with chronic HCV but denied DAA treatment by the MDOC was affirmed. See: Postawko v. Missouri Dept. of Corrections, 910 F.3d 1030 (8th Cir. 2018), rehearing and rehearing en banc denied.
“Not only has the government displayed gross lack of respect for human life and dignity of the people in its care, its actions also sharply increase the cost of treatment the state must pay when their condition worsens,” Amy Breihan, director of the MacArthur Justice Center’s Missouri office, said after the Eighth Circuit’s decision. “They’ve chosen to create a public health emergency among the incarcerated.”
This appellate ruling was one of several recent court decisions in lawsuits challenging treatment for prisoners with HCV. [See, e.g.: PLN, Feb. 2019, p.16; April 2018, p.28; Dec. 2017, p.24].
Additional sources: St. Louis Public Radio, aclu-mo.org
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