Class Action Correctional Malpractice

HEAL Blog is the recipient of the ADAP Advocacy Association’s 2015-2016 ADAP Social Media Campaign of the Year Award
By: Marcus J. Hopkins, Blogger

Inmates in Oklahoma prisons must have advanced liver disease before they become eligible for treatment for Hepatitis C (HCV). This means that their livers must manifest significant scarring before they’re even allowed to receive the curative treatment that will prevent further damage (Botkin, 2018).

A class action lawsuit has been filed in the state of California alleging that doctors within the prison system have denied them treatment because their liver disease isn’t advanced enough, that their disease is too advanced, and/or the drugs are too expensive (Locke, 2018).

A class action lawsuit in Missouri alleges that only five out of thousands of Missouri inmates have received treatment for HCV, desite between 10-15% of the incarcerated population being infected with HCV (Margolies & Smith, 2017).

Idaho says that nearly 1/3 of its prisoners have HCV, and it needs $3M to treat them (Boone, 2018). An inmate diagnosed with HCV while in a Mississippi prison has filed a suit alleging they’ve refused him treatment on at least nine separate occasions (Wolfe, 2018).

Inmate looking out window with bars on it

Photo Source:

Each of these instances is indicative of a few major points: (1.) We have a growing number of prisoners within our justice system who are infected with HCV; (2.) Prison systems and/or state Departments of Corrections (DOCs) are refusing or delaying treatment; (3.) This is unconstitutional.

In last week’s HEAL Blog (“Cruel and Unusual” Neglect in Prisons), we introduced the concept of “deliberate indifference,” a measure introduced by Estelle v. Gamble (1976). This week, there’s another take – does being literally unable to afford the cost of treating inmates qualify as deliberate indifference?

The answer to that question really depends on the judge who hears the case. In 2017, U.S. District Court Judge Mark Walker in Tallahassee, Florida ruled in favor of three inmates who filed a class action lawsuit against the state of Florida, requiring the state to treat a significant portion of its 98,000 inmates (total population; not HCV-infected population) for HCV (Klas, 2017). Similarly, in Pennsylvania, a U.S. District Court Judge Robert D. Mariani ruled in favor of Mumia Abu-Jamal, an inmate who gained notoriety for his shooting of an officer who had stopped his younger brother in a traffic stop (Mayberry, 2017). Both Federal judges found that prisons are required to provide treatment for HCV, regardless of the cost.

Make no mistake, however – these rulings are few and far between; the primary issue is that it’s difficult to prove “deliberate indifference” without detailed and voluminous documentation. Even then, the measure is specifically designed to be difficult to prove (as are all burdens of proof). And the primary reason why prisons refuse or delay treatment has little to do with indifference, so much as the cost. HCV Direct-Acting Antivirals are prohibitively expensive for regular consumers; prisons, however, have even less wiggle room, as they are largely unable to negotiate on drug prices.

Where we are, at the moment, seems to be a holding point: until the drugs to treat HCV get exponentially cheaper to purchase (right now, the least expensive 8-week treatment regimen – Mavyret (AbbVie) – goes for $26,400, roughly 1/3 the cost of the cheapest drug in 2013), prison systems are unlikely to make any substantive efforts to treat HCV-infected inmate. Moreover, until the Federal government requires states to both screen and treat inmates for infectious diseases, it’s likely that HCV will continue to spread among inmates and the general population.



Disclaimer: HEAL Blogs do not necessarily reflect the views of the Community Access National Network (CANN), but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about Hepatitis-related issues and updates. Please note that the content of some of the HEAL Blogs might be graphic due to the nature of the issues being addressed in it.


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