11th Circuit Reduces Florida Inmate Access to Hepatitis C Treatment

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home of the 11th Circuit Court of Appeals. (Photo via Eoghanacht/Wikipedia Commons)

ATLANTA (CN) — Tossing out a court order forcing Florida prisons to treat inmates suffering from the early effects of hepatitis C, an 11th Circuit panel Monday ruled that state prison officials are not constitutionally required to treat all inmates who suffer from the disease with expensive antiviral drugs.

In a 2-1 decision, a three-judge panel of the Atlanta-based federal appeals court ruled that a treatment plan providing direct-acting antiviral drugs for only those hepatitis-C-infected prisoners who have developed significant liver damage from the disease is constitutional.

The court heard oral arguments in the case in June. 

The ruling rolls back an April 2019 order issued by Chief U.S. District Judge Mark Walker, a Barack Obama appointee, requiring Florida prisons to administer the new class of medications to inmates with hepatitis C within two years of their diagnosis, whether they show symptoms of liver damage or not.

With the district court’s order vacated, the treatment plan will provide drugs to only inmates who have an exacerbating condition like HIV, show signs of rapid progression, or develop significant liver scarring. Inmates with lower levels of scarring or no signs of scarring will be monitored.

The lawsuit that prompted the ruling was brought by three chronically ill hepatitis C-positive inmates — Carl Hoffer, Ronald McPherson, and Roland Molina — who sued the Secretary of the Florida Department of Corrections in May 2017 on behalf of a putative class in Florida federal court. They alleged that the secretary’s treatment plan was deliberately indifferent to their serious medical needs in violation of the Eighth Amendment.

Hoffer died of liver failure from hepatitis C while the lawsuit was pending.

Before the lawsuit was filed, Florida’s prisons allegedly had no program in place for mass acquisition of direct-acting antiviral drugs. The preliminary and permanent injunctions in the case, won in 2017 and 2019 respectively, led prison officials to administer the medication to more than 4,000 inmates.

Although the drugs purportedly have a 90% cure rate, they are exorbitantly costly. Secretary of the Florida Department of Corrections Mark Inch estimated that a single 12-week course of direct-acting antiviral treatment costs between $25,000 and $37,000 per inmate.

The ruling points out that Inch is not refusing or denying medical care to any hepatitis C-positive inmate. The majority opinion says the process of monitoring the inmates for changes in their condition is itself a form of medical care.

“The long and short of it is that diagnosing, monitoring, and managing conditions — even where a complete cure may be available — will often meet the ‘minimally adequate medical care’ standard that the Eighth Amendment imposes,” U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee, wrote on behalf of the majority.

“Because the plaintiffs here are receiving medical care — and because the adequacy of that care is the subject of genuine, good-faith disagreement between healthcare professionals — we are hard-pressed to find that the Secretary has acted in so reckless and conscience-shocking a manner as to have violated the Constitution,” the ruling states.

The ruling also points out that the standard for deliberate indifference does not guarantee that inmates will be free from the cost considerations that figure into health care decisions for most Americans.

“Every minute of every day, ordinary Americans forgo or delay beneficial — and even life-altering — medical treatment because it’s just too expensive,” Newsom wrote. “Healthcare can be expensive—sadly, sometimes prohibitively so. What a topsy-turvy world it would be if incarcerated inmates were somehow immune from that cold — and sometimes cruel — reality.”

U.S. Circuit Judge Beverly Martin, a Barack Obama appointee, penned a 25-page dissent, writing that she would have upheld the district court’s order. Martin said she was concerned “that recent decisions of this Court will undermine the rights of our incarcerated citizens to maintain their health and safety while they serve their sentences.”

Martin criticized the majority for giving cost “too large a role in determining whether the Secretary is deliberately indifferent” and argued that inmates suffering from the early stages of the disease are likely to become sicker when their treatment is delayed.

“This record thus shows that symptoms are not indicative of the progression of the virus and the underlying damage to the liver. This matters because the Secretary is proposing delaying treatment until a patient reaches a more advanced stage,” Martin wrote.

“[T]he fact that a disease may progress slowly does not mean that prison officials may refuse to treat it,” the dissenting opinion states.

Newsom was joined in the majority by Senior U.S. Circuit Judge Bobby Baldock, a Ronald Reagan appointee sitting by designation from the 10th Circuit.

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