Inmates Battle Florida at 11th Circuit to Preserve Hepatitis Treatment

MIAMI (CN) — With an eye toward ending a saga of preventable deaths from hepatitis C in Florida jails, inmates are fighting to preserve a court order that forces Sunshine State prisons to treat early stages of the disease. 

In an 11th Circuit hearing Wednesday, inmates went toe-to-toe with the Florida Department of Corrections over its push to withhold medication from hepatitis-C-infected prisoners who do not have significant liver damage from the disease. ​

(AP Photo/Bebeto Matthews, File)

The Department of Corrections wants to overturn an April 2019 order from Chief U.S. District Judge Mark Walker in Tallahassee. The order in effect required Florida prisons to administer a relatively new class of medication, known as “direct-acting antivirals,” to inmates with hepatitis C within two years of diagnosis, regardless of whether they show signs of liver damage. ​

The drugs have an impressive cure rate but are costly, with some regimens’ price exceeding $1,000 a day in the U.S. market. Currently, the American Association for the Study of Liver Diseases recommends that nearly all hepatitis-C-infected patients take the drugs.

The prisoners maintain that delaying the use of the medication in early-stage hepatitis cases would violate their constitutional rights under the Eighth Amendment, which protects people from cruel and unusual punishment. Early treatment with the drugs has an exceptional cure rate and “prevents liver-related diseases, cancers and deaths,” the inmates say.  ​​

“The district court correctly held that [the Florida Department of Corrections’] refusal to provide treatment only for financial reasons while recognizing that such treatment was medically necessary amounted to deliberate indifference to serious medical needs. That conclusion alone should result in an Eighth Amendment issue in our favor,” the prisoners’ attorney Dante Trevisani told the three-judge 11th Circuit panel. ​

The underlying class action lawsuit was filed against the Florida Department of Corrections by three prisoners – Carl Hoffer, Ronald McPherson and Roland Molina – in 2017. Hoffer died of liver failure from hepatitis C while the lawsuit was pending. McPherson and Molina are living with hepatitis C-related liver damage that they say could have been prevented or mitigated if the prison system had provided timely treatment. ​

Before the inmates brought the lawsuit, the state’s prison system allegedly had no program in place for mass acquisition of the revolutionary new hepatitis drugs. The lack of treatment “resulted in hundreds of preventable deaths,” a brief to the 11th Circuit states.

In 2015 and 2016, an FDOC official prepared legislative budget requests for funding to buy the new drugs, but the requests were never “actually submitted to the Legislature,” according to the inmates’ brief.

The plaintiffs won injunctions in 2017 and 2019, which led to the acquisition and administering of hepatitis C medication to thousands of inmates, some of whom may have otherwise developed life-threatening liver damage.

On appeal Wednesday, Florida’s attorney James Percival claimed that monitoring early stage hepatitis C cases without administering drugs is sufficient to protect prisoners from serious harm and avoid constitutional violations. He argued that the FDOC could safely monitor inmates in the nascent stages of the disease and intervene with a drug regimen if they have exacerbating health factors or show rapid progression. ​

Percival argued that for the purposes of determining whether a constitutional violation is at hand, the court ought not require the “best possible treatment,” but a “minimally adequate treatment.” He cited past testimony from the state’s medical expert, who asserted that hepatitis C treatment guidelines from major U.S. medical organizations had bias stemming from pharmaceutical-company funding.  ​

U.S. Circuit Judge Beverly Martin, a Barack Obama appointee, pressed the FDOC on whether it had any justification, other than financial reasons, for withholding the antiviral drugs from inmates. 

“Our position is that you can basically do a cost-benefit analysis, just like a person would do if they were paying for their own treatment outside of prison. You can say what are the risks, and how much does it cost. And you can balance those two things. …Where we determine that it’s medically necessary, we are treating,” Percival responded. 

U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee, meanwhile appeared concerned that prisons are being held to a higher medical standard than the general public’s health care system. ​

“There are lots and lots of people who can’t get the medical treatment that they need, solely because they are too expensive. … Why would the result be any different inside a prison?” asked Newsom.

“I think what you are saying is that a prisoner is entitled to better medical treatment than [people] on the outside,” the judge said to the inmates’ attorney. ​

The prisoners’ lawyer responded that Florida Medicaid and private insurers readily cover direct-acting antiviral drugs for hepatitis C patients in early stages of the virus. He added that as long as medical discretion is not thrown aside, costs can be factored into a prison’s decisions about how to address diseases in the inmate population. 

“We’re not saying that costs cannot be taken into account. … They just can’t be taken into account to the exclusion of any medical judgment. I think that’s what the record shows happened here,” Trevisani said. ​

Martin and Newsom were joined on the panel by Senior U.S. Circuit Judge Bobby Baldock, a Ronald Reagan appointee sitting by designation from the 10th Circuit. ​The hearing was held online due to coronavirus-related court closures. 

The FDOC is asking the panel to reverse the lower court’s order that found largely in favor of the plaintiffs. In the 2019 order, Judge Walker found that the department had “come a long way” in expanding treatment for hepatitis-C-infected inmates, but that across-the-board medication regimens were necessary to protect the inmates’ Eighth Amendment rights. ​

Estimates presented in the court record suggest that at least 20,000 prisoners in Florida are infected with the virus. ​

The pathogen, which is spread through exposure to contaminated blood, was blamed for more than 17,000 deaths in the U.S. in 2017. It’s often referred to as a “silent killer” because it can cause a chronic infection that progressively scars the liver before patients show outward symptoms.

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