“This action today is going to save 1,184 lives,” attorney Reuben Guttman argued to Seymour during the hearing.
He represented Bernard Bagley and Willie James Jackson, two prisoners who joined a lawsuit originally filed against the state Department of Corrections (DOC) in March 2018 by prisoner Russell Geissler, who was represented by Christopher Bryant. Geissler’s complaint was about lack of HCV treatment, while the others’ complaint was about HCV testing. The two complaints were combined in a class-action granted in December 2018. [See PLN, June 2019, p.44.]
Chronic HCV causes liver inflammation, scarring (fibrosis) and decreased liver function. It can lead to liver disease, cancer, internal bleeding and even death. The acceptable standard of care for prisoners is across the board testing and treatment with direct-acting antiviral (DAA) drugs, which have been proven to provide a 95 percent cure rate. Moreover, DAA drugs, which may have cost upward of $80,000 per patient a few years ago, now only cost about $15,000 – even less if the disease is caught early with aggressive testing – reducing the overall costs of long-term care for prisoners with chronic liver failure as well as preventing the spread of the disease after release.
Under DOC’s old testing policy, “opt-out” HCV screening (automatic testing for all prisoners unless they specifically refuse) was not offered. Instead no prisoners at all were tested “except in certain limited circumstances.” Those circumstances did not include testing people born between 1945 and 1965, those who have had a blood transfusion before 1992 or those requesting testing based on self-reported exposure to at-risk activities, each of which is the standard of care recommended by the federal Centers for Disease Control and Prevention (CDC).
As for HCV treatment, it was given only to those prisoners who had a liver fibrosis score greater than 2 under the APRI scoring system, though many medical professionals believe a score of 1.5 would be a better gauge. Using the more restrictive cut-off score to deny them treatment, plaintiffs argued, violated their rights under the Americans with Disabilities Act and failed to protect them from cruel and unusual punishment as guaranteed by the U.S. Constitution.
CDC estimates indicate one-third of all prisoners have HCV, based on statistics from states that do comprehensive testing and treatment. Since DOC had recorded only about 600 cases of HCV out of more than 19,000 prisoners in its care, the lawsuit suggested the actual number could be over 6,000. About two-thirds of the state’s prisoners had been offered testing by the time of the settlement, with 85 percent of those agreeing to testing, results of which are still pending.
DOC Director Bryan Stirling worked with the plaintiffs to resolve the issue in the best interests of prisoners and the DOC. Last year he convinced the state General Assembly to budget $10 million for HCV testing and treatment. Guttman praised Stirling for doing the right thing without resistance.
“Ultimately,” he said, “what this came down to was his saying ‘we get everybody with hepatitis C treated.’”
Agreed DOC attorney Buddy Arthur, “I don’t think we would be here today if it were not for director Stirling.”
The plaintiffs had requested declaratory judgment and injunctive relief, but not monetary damages. The suit did not waive monetary damages, though, for prisoners who wish to file in the future for failure to test or treat their HCV. A federal magistrate will be appointed to monitor the DOC’s progress. See: Geissler v. Stirling, 2019 U.S. Dist. LEXIS 131110.
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Related legal case
Geissler v. Stirling
|Cite||2019 U.S. Dist. LEXIS 131110|