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Fourth Circuit Reverses Dismissal of Virginia Prisoner’s Hep C Lawsuit

by David M. Reutter

The Fourth Circuit Court of Appeals held on September 4, 2019 that prison officials responsible for a policy that prevented a Virginia prisoner from receiving treatment for the hepatitis C virus (HCV) could be found deliberately indifferent to his serious medical needs.

That ruling came in an appeal by prisoner Carl D. Gordon, after the district court granted summary judgment to Virginia Department of Corrections (VDOC) Health Services Director Fred Schilling and Chief Physician Mark Amonette. The court’s order was based on a finding that they had no personal involvement in decisions related to Gordon’s HCV treatment, and that his disease was adequately handled by prison medical staff.

At issue was the VDOC’s 2004 Treatment Guidelines, which excluded HCV-positive prisoners from receiving treatment if they were either “parole eligible” or had less “than 24 months remaining to serve after [undergoing] a liver biopsy.” Gordon, who had been in prison since 1980, was eligible for parole; thus, he was only eligible under the guidelines for a “chronic care clinic” that did not allow a “baseline workup, a liver biopsy, and [HCV] treatment.” In other words, medical staff would do nothing more than watch the disease progress.

That is what happened after Gordon was diagnosed with HCV in 2008. The Fourth Circuit wrote that the district court’s finding that he was never denied access to “acute medical care” was “inconsistent with the Eighth Amendment,” which prohibits prison officials from withholding “treatment from an inmate who suffers from a serious, chronic disease until the inmate’s condition significantly deteriorates.”

After a biannual visit and tests at the chronic care clinic in 2011 “reflected elevated levels of liver enzymes that could indicate liver damage,” Gordon began requesting treatment for HCV. Grievances that he filed between 2011 and 2015 were denied by Schilling.

In February 2014, Amonette suspended the 2004 guidelines. A year later the VDOC adopted a new policy that abandoned the HCV treatment exclusions. Under the revised guidelines, Gordon underwent testing that revealed he had developed stage 3 fibrosis, which is a “high” level of liver damage that represents the final stage before the onset of cirrhosis.

Gordon’s lawsuit alleged Schilling, a non-doctor, was personally involved in the denial of his HCV treatment because he was responsible for reviewing, revising and enforcing the 2004 Treatment Guidelines that excluded Gordon. He was also aware of the risks that Gordon could suffer serious liver damage as a result.

On appeal, the Fourth Circuit noted that Gordon’s grievances detailed those facts, and that Schilling acknowledged them and the fact that Gordon was not receiving HCV treatment. Therefore, the evidence showed Schilling was aware of a substantial risk of harm if Gordon’s medical condition went untreated.

While non-medical personnel can generally defer to the decisions of prison doctors, Shilling knew that the 2004 Treatment Guidelines, which he enforced, precluded any treatment for Gordon – so his suggestion that Gordon go to sick call was simply a “repeated[] passing of the buck,” the Court of Appeals wrote. Shilling was also aware that from February 2014 to February 2015, no HCV treatment was available. The Court found his failure to revise the Treatment Guidelines to remove the exclusion provisions constituted personal involvement, and he thus could be found deliberately indifferent to Gordon’s serious medical needs.

As for Amonette, his decision to suspend HCV treatment for a year without implementing an interim replacement policy could be found by a jury to constitute deliberate indifference to the substantial risk of harm from HCV, the Fourth Circuit noted, as that decision may have been “predicated on administrative convenience rather than medical judgment.” Accordingly, the district court’s summary judgment order was vacated and the case remanded, where Gordon’s motion to appoint counsel was granted on November 7, 2019. See: Gordon v. Schilling, 937 F.3d 348 (4th Cir. 2019).

Previously, in August 2018, another Virginia state prisoner, Elmo Augustus Reid, 62, held at the Buckingham Correctional Center, obtained HCV treatment after prevailing in a similar lawsuit. Reid was assisted by University of Virginia School of Law professor George Rutherglen, who stated, “This individual lawsuit does not require treatment of other prisoners, but like many similar lawsuits around the country, it sets a precedent that supports further efforts to gain treatment.”

Until a class-action suit succeeds in Virginia, prisoners with HCV will have to litigate separate, individual cases seeking medical treatment. 


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