A split federal appeals court sided with the Florida Department of Corrections on Monday in a drawn-out legal battle over whether the state is providing proper treatment to prisoners with hepatitis C.
The class-action lawsuit centers on the use of an expensive type of medication known as “direct acting anti-virals” to treat the contagious liver disease, which can be fatal.
U.S. District Judge Mark Walker last year ordered the Florida Department of Corrections to provide the treatment to all inmates with hepatitis C, but the agency appealed to the 11th U.S. Circuit Court of Appeals.
In a 2-1 ruling Monday, a panel overturned Walker’s decision, saying the state is not required to offer the expensive treatment to prisoners in the early stages of the disease.
The state does not dispute that direct acting anti-virals should be given to inmates with later stages of hepatitis C. But the corrections department contends that it would not violate prisoners’ constitutional rights if they did not receive the high-cost medication in the early stages.
In a budget passed in March, state lawmakers set aside $28 million in reserves to pay for the treatment if needed. But Gov. Ron DeSantis vetoed the money in June as he looked for ways to cut the state budget as the coronavirus reduced state tax revenues.
In Monday’s majority opinion, Judge Kevin Newsom noted that many people infected with hepatitis C will “spontaneously clear” the virus without treatment. At least half the cases are chronic and can only be treated with medication, however.
The state does not want to use the expensive anti-viral treatment on inmates who are in the early stages of the disease, classified as “F0” or “F1.”
The treatment can cost up to $25,000 to $37,000 per inmate, according to court documents. Lawyers representing inmates asked the court to order the treatment for all prisoners with hepatitis C, regardless of the pace of the disease progression or underlying comorbidities.
During a 2017 hearing in the case, expert doctors for the state and the plaintiffs reached “dueling conclusions regarding the necessity of treating HCV-positive inmates who showed little or no liver scarring,” Newsom noted in Monday’s majority decision, which was joined by Judge Bobby Baldock.
But Newsom and Baldock found that the plaintiffs failed to show that Department of Corrections Secretary Mark Inch’s response to inmates’ medical needs was “deliberately indifferent.”
Newsom noted that previous court decisions regarding prisoners’ medical care “have held that the Eighth Amendment doesn’t require it to be ‘perfect, the best obtainable, or even very good.’”
Rather, the court has found medical care to be unconstitutional “only when it is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness,” he wrote, again quoting from a 1991 ruling in a case known as Harris v. Thigpen.
The question in the Florida case isn’t whether all inmates with hepatitis C should receive treatment with direct acting anti-virals, Newsom wrote.
“Rather, because the plaintiffs here have invoked the Eighth Amendment, the sole question before us is whether the secretary’s approach to the treatment of F0- and F1-level inmates is so reckless --- so conscience-shocking --- that it violates the Constitution. As explained below, it is not,” he added.
Inch isn’t refusing or denying medical care to any inmates who test positive for hepatitis C, Newsom noted.
“He may not be providing F0- and F1-level inmates the particular course of treatment that they and their experts want - or as quickly as they want it - but he isn’t turning a blind eye, either,” Newsom wrote.
Corrections officials are “diagnosing their illnesses, assessing their risk of future harm, and regularly monitoring and managing their disease progression,” the judge said.
Courts have also decided that disagreements in medical opinions between a prison’s medical staff and an inmate as to diagnosis or course of treatment fail to support claims of cruel and unusual punishment, Newsom said.
“That, at bottom, is exactly what we have here,” he wrote. “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.”
In addition, the majority found that prison officials are allowed to take cost into consideration when deciding what treatment options to offer to inmates.
“Every minute of every day, ordinary Americans forgo or delay beneficial --- and even life-altering --- medical treatment because it’s just too expensive. … What a topsy-turvy world it would be if incarcerated inmates were somehow immune from that cold --- and sometimes cruel --- reality,” Newsom said.
The Constitution “does not prohibit prison officials from considering cost in determining what type (or level) of medical care inmates should receive,” he emphasized.
Dante Trevisani, a lawyer who represents plaintiffs in the lawsuit, called the court's ruling "on this narrow aspect of the case disappointing.
"But we’re grateful that the underlying lawsuit has resulted in thousands of incarcerated people receiving hepatitis C treatment, and will continue to do so in the future," Trevisani, executive director of the Florida Justice Institute, said in an email Monday evening. "We’re contemplating our legal options."
Monday’s split decision reversed Walker’s permanent injunction to the extent that it requires direct acting anti-viral treatment for all inmates with hepatitis C.
But in a scathing dissent, Judge Beverly Martin said not only that she would have upheld Walker’s injunction, but that she is “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 took issue with the majority’s assertion that corrections officials aren’t refusing or denying medical care to any inmates with hepatitis C.
“Yet it appears to me that refusing treatment is precisely what the secretary is doing --- at least up to a certain point,” she wrote. “This delay in treatment ignores the progression of the disease and the underlying damage that cHCV-positive prisoners experience in the meantime.”
According to a monthly status report filed in May by the Department of Corrections with Walker, 8,338 of the state’s roughly 94,000 prisoners were identified as having chronic hepatitis C. But the number of inmates who have the disease could be much higher, as new prisoners enter the system and as officials continue to screen for infections.
Martin also disagreed with the majority about prison officials’ consideration of costs when offering treatment.
“Cost may be considered in determining whether a prison official is deliberately indifferent,” she wrote. “However, in light of the secretary’s years-long delay in providing treatment for cost reasons, and the evidence showing the standard of care here is to treat everyone with cHCV, I would affirm the district court’s finding of deliberate indifference.”
