by David M. Reutter
A federal district court in North Carolina has ordered expanded hepatitis C (HCV) treatment in a class-action suit brought by three state prisoners. The court’s entry of a preliminary injunction on March 20, 2019 enjoined the NC Department of Public Safety (DPS) from enforcing its existing policy on hepatitis C treatment.
The class consists of DPS prisoners “who have or will have chronic hepatitis C virus and have not been treated with direct-acting antiviral drugs (DAAs).” The lead plaintiffs alleged they were diagnosed with HCV but had not received treatment. Dr. Andrew Joseph Muir testified on their behalf that they are candidates for DAA medications, which should begin immediately. State prison officials “offered no explanation for [the DPS’] failure to treat” them. The district court said that after evidence was presented at the hearing, that failure “appears to constitute deliberate indifference.” It ordered the three lead plaintiffs to receive DAA treatment.
However, the court added the evidence was insufficient to show there was a likelihood of success that all class members were entitled to DAA treatment regardless of fibrosis level, or for universal opt-out screening. While the class may prevail on those issues later in the case, the standard was not met for a preliminary injunction. The district court gave little weight to Dr. Muir’s testimony as to those issues because he had no experience treating prisoners and was applying a community standard of care rather than the deliberate indifference standard.
“Medical care in the prison setting must be adequate, not necessarily ideal, and HCV treatment in the prison system is dependent upon the availability of resources,” the court wrote. According to a DPS spokesperson, the cost of DAA treatment is around $33,000 per prisoner.
U.S. District Court Judge William Osteen enjoined the DPS’ policy on hepatitis treatment, and found constitutional flaws in the prison system’s screening and prioritization of treatment for prisoners with HCV. For example, prohibitions on treatment for prisoners with less than 12 months left to serve, or who had “infractions related to the use of alcohol or drugs in the last twelve months,” had no medical justification. The district court made the same finding as to excluding HCV treatment for prisoners due to unstable “medical or mental health conditions and life expectancy.”
The DPS had a new HCV screening and treatment policy that was scheduled to go into effect on March 25, 2019, which was not considered by the court because the plaintiffs had not had an opportunity to respond.
Accordingly, the district court granted in part and denied in part the plaintiffs’ motion for a preliminary injunction and referred the case for mediation in May 2019, where it remains pending. See: Buffkin v. Hooks, U.S.D.C. (M.D. NC), Case No. 1:18-cv-00502-WO-JLW; 2019 U.S. Dist. LEXIS 45790.
“This ruling is an important step toward combating a major public health crisis that leads to the suffering and death of thousands of people both inside and outside prison walls,” stated Emily Seawell, a staff attorney for the ACLU of North Carolina. “The vast majority of people who are incarcerated will one day re-enter the community, and medical experts have made it clear that to combat the hepatitis C epidemic, we must provide treatment as quickly as possible.”
This ruling continues a national trend in litigation over the provision of DAA treatment for prisoners with HCV. [See: PLN, June 2019, p.44].
Additional source: Associated Press
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