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Sixth Circuit Affirms Tennessee DOC’s Hepatitis C Treatment Due to Lack of Funds

The district court’s judgment was entered after a four-day bench trial. The class appealed, and in an August 24, 2020, opinion, the Sixth Circuit affirmed. The lawsuit originally challenged TDOC’s 2016 Hepatitis C policy, which specified that direct-acting antivirals would be provided only to prisoners with severe liver scarring. It cited the cost of $80,000 to $189,000 for a single-course in 2015 as the driving force of that policy.

Faced with the class action lawsuit and a reduction in cost of between $13,000 and $32,000 per course of treatment, TDOC revised its Hepatitis C treatment policy. TDOC’s medical director, Dr. Kenneth Williams, developed and oversaw that policy.

It provided for Hepatitis C testing of all prisoners. Those who test positive undergo a baseline evaluation. An advisory committee evaluates each infected prisoner and determines the course of treatment. The local provider then administers that care. Infected prisoners are reassessed every six months. Antivirals are made available to “individuals [who] are at higher risk for complications or disease progression and may require more urgent consideration for treatment.”

At trial, Dr. Zhiqiang Yao testified for the class. He said the “best practice” is to treat chronic Hepatitis C with direct-acting antivirals “as early as possible” or “in a timely manner,” regardless of the extent of scarring on a patient’s liver. He conceded, however, that TDOC’s prioritization approach was “understandable” given its limited resources.

Dr. Williams testified that TDOC’s Hepatitis C budget increased from $600,000 in 2016-17. It increased to $2.6 million the next fiscal year. It increased again in 2019 to $4.6 million. The latter increase enables TDOC to treat 1,800 infected prisoners with antivirals, which is the number of prisoners with advanced liver scarring. In 2019, 4,740 of TDOC’s 21,000 prisoners were infected with Hepatitis C.

The Sixth Circuit agreed with the district court that Williams did not recklessly ignore the risk posed to infected prisoners. It found the prioritization policy employed the finite resources at Williams’ disposal. “In the real world of limited resources, Dr. Williams’s actions pursuant to the 2019 guidance reflected anything but indifference,” the majority wrote in affirming the district court’s judgement.

In dissent, Judge Ronald Lee Gilman said TDOC’s policy was not reasonable. He noted Dr. Williams “has seen 81 inmates die from Hepatitis C since direct-acting antivirals became available.” Prisoners “who must wait for treatment until they have advanced fibrosis will suffer irreversible scarring in their livers, and they will need to be monitored for liver cancer for the rest of their lives.”

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