First Major Loss in Recent Challenges to Hep C Treatment for Prisoners
by David M. Reutter
The Tennessee Department of Correction’s (TDOC) chronic Hepatitis C (HCV) treatment policies “are not perfect,” a federal district court found, but they do not violate the Eighth Amendment rights of state prisoners.
That ruling came after the district court held a bench trial in July 2019. The court noted that of the TDOC’s approximately 21,000 prisoners, around 4,470 are known to have HCV – but the actual number may be higher because many have not been tested.
Since 2009, at least 109 Tennessee prisoners have died due to HCV complications.
Prison officials changed their policies for treatment of HCV after the lawsuit was filed. The policy was created and enforced by the TDOC, but its medical contractor, Centurion, and CoreCivic, which operates four private prisons under contract with the TDOC, administer treatment under that policy.
The evidence at trial showed that the medical community supports the use of Direct Acting Antiviral (DAA) treatment “for all HCV patients regardless of their liver fibrosis stage (except those with short life expectancies that cannot be remediated by treating HCV or by other directed therapy).” The testimony also indicated that under the TDOC’s 2016 HCV policy, even some prisoners who were at the higher F3 or F4 stages of the disease did not receive treatment. Prisoners at lower stages were denied DAAs outright.
The district court found a significant change came with the implementation of a new policy. “The cornerstone of TDOC’s HCV policy and the 2019 HCV Guidance is the TDOC Advisory Committee on HIV and Viral Hepatitis Prevention and Treatment (TACHH), which makes DAA treatment determinations for HCV inmates based upon their medical records.”
Under the new policy, prisoners are tested for HCV during the intake process unless they specifically opt out. They may request HCV testing at any time after intake. Decisions as to which prisoners receive DAAs are “determined by the TACHH, which evaluates HCV inmates and makes treatment decisions that are ‘patient specific.’”
As a result, some prisoners at the lower F1 and F2 stages of the disease have been approved for DAAs under the new policy.
The TDOC argued at trial that prioritizing treatment rather than treating every infected prisoner was necessary due to limited resources. The court found that the American Association for the Study of Liver Disease and the Infectious Diseases Society of America recommend that where “resources limit the ability to treat all infected patients immediately as recommended, then it is most appropriate to treat those at greatest risk of disease complications before treating those with less advanced disease.”
Based on that position, as well as the TDOC’s monitoring of HCV-infected prisoners, its workflow of expected practices and the progress it had made in implementing the new policy, the district court found no constitutional violation. It warned, however, that the “Eighth Amendment is not frozen in time” in its September 30, 2019 findings of fact and conclusions of law, when dismissing the case.
“Time will tell whether TDOC implements the 2019 HCV Guidance in the dedicated manner it has represented and continues to accelerate approval of inmates for treatment with DAAs. It would behoove TDOC to do so ... lest treatment that is not grossly inadequate today be subject to that renewed claim in the future,” the court wrote.
To PLN’s knowledge, this is the first major loss in a case asserting inadequate treatment of HCV where the plaintiffs were represented by counsel since DAAs became the standard of care for that disease.
HRDC associate director Alex Friedmann attended part of the bench trial in this case, which was held in Nashville. The plaintiffs, represented by the law firm of Branstetter, Stranch & Jennings, PLLC, the Tennessee ACLU and Disability Rights Tennessee, have since appealed the dismissal to the Sixth Circuit. See: Atkins v. Parker, U.S.D.C. (M.D. Tenn.), Case No. 3:16-cv-01954; 2019 U.S. Dist. LEXIS 168976.
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Related legal case
Atkins v. Parker
|Cite||U.S.D.C. (M.D. Tenn.), Case No. 3:16-cv-01954; 2019 U.S. Dist. LEXIS 168976|