Inmates ask appeals court to back hepatitis C ruling

October 21, 2019

By Jim Saunders

TALLAHASSEE --- Arguing that the state has shown “deliberate indifference to serious medical needs,” inmates are urging a federal appeals court to uphold a ruling that requires the Florida Department of Corrections to provide costly treatment to prisoners who have been diagnosed with the early stages of hepatitis C.

Attorneys for inmates filed a 58-page brief Friday at the 11th U.S. Circuit Court of Appeals that said the department has resisted providing the treatment for financial reasons, violating the Eighth Amendment ban on cruel and unusual punishment.

“The Eighth Amendment requires prison officials to provide medical treatment that avoids serious consequences, not simply treat them after a prisoner becomes dangerously ill,” the brief said.

The long-running legal fight centers on the use of an expensive type of medication known as “direct acting anti-virals” to treat hepatitis C, a contagious liver disease that can be fatal. Chief U.S. District Judge Mark Walker in April ruled that the medication should be provided to all inmates with hepatitis C, prompting the state to go to the Atlanta-based appeals court.

The state does not dispute that direct acting anti-virals should be provided to inmates with later stages of hepatitis C. But Attorney General Ashley Moody’s office, representing the Department of Corrections, contended in an August brief that the state would not violate the Eighth Amendment if it did not provide the medication to prisoners in the early stages.

“This appeal raises the question whether the Eighth Amendment requires the Florida Department of Corrections to treat inmates with early-stage hepatitis C with a newly developed, yet expensive, course of treatment,” the 37-page brief said. “The new treatment, direct acting anti-virals, can be lifesaving for those suffering from moderate-to-severe hepatitis C. By contrast, medical studies have not established that DAAs (direct acting anti-virals) materially improve the mortality rate or quality of life for those diagnosed with early stage hepatitis C. Instead, adequate care for those individuals involves monitoring the disease’s progression and administering DAAs if it becomes medically necessary.”

But Walker, who ordered a two-year process to provide direct acting anti-virals to inmates with early stages of the disease, wrote in the April ruling that even inmates with no or mild liver scarring “have serious medical needs, FDC (the Department of Corrections) is aware of those needs, and FDC’s decision not to treat those inmates --- without any medical reason for that decision --- constitutes deliberate indifference.”

In the brief Friday, the attorneys for inmates wrote that the Department of Corrections refused to provide treatment “solely for financial reasons.”

“This was clear deliberate indifference to serious medical needs, in violation of the Eighth Amendment and consistent with this (appeals) court’s longstanding treatment of the issue,” the brief said. “Moreover, the district court (Walker) actually did consider costs in its analysis, and carefully crafted a remedy that allows the secretary (of the department) to delay treatment for two years --- rather than provide immediate treatment as the standard of care requires.”

The brief said experts have estimated that at least 20,000 inmates in state prisons have hepatitis C, a rate that is far higher than in the broader population. When direct acting anti-virals first became available, they cost about $84,000 per treatment, but the cost had fallen to between $25,000 and $37,000 as of September 2017, the brief said.

The appeals court is considering the case as the Department of Corrections faces other financial problems. Corrections Secretary Mark Inch told a House panel last week that he is seeking roughly $90 million to fund two initiatives he believes will bolster staffing levels at state prisons. Low staffing levels, Inch said, have helped lead to a dramatic increase in violent acts and contraband behind bars.

“I do believe the status quo is unsustainable,” Inch told the House panel.