A little background on the epidemic of Hepatitis C in American prisons, originally printed in Prison Legal News: August 2003, pp. 1-4.
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by MarkWilson
The hepatitis C virus (HCV) is an insidious insidious and relentless disease which is highly unpredictable and eventually fatal. It is a chronic disease which is the leading cause of cirrhosis, liver failure and liver cancer which causes an estimated 10,000 deaths annually in the United States; a number the Centers for Disease Control and Prevention (CDC) expects to triple by 2010.
HCV infection in America’s prisons has reached epidemic proportions. Random seroprevalance studies in state prisons in California, Connecticut, Maryland, Oregon, Texas and Virginia have revealed infection rates between 29 and 54 percent, compared to a 2 percent infection rate in the total U.S. population.
Most states are ignoring the crisis, however, even as prisoners are dying, or being released unaware of their disease and creating a public health risk. “Correctional systems have buried their heads in the sand because they don’t want to know how many prisoners have hepatitis C,” said Eric Blaban, a staff attorney with the National Prison Project of the ACLU. Even when prisoners are tested for HCV, prison doctors in many states fail to inform them of the results - or that they were tested - until years later, if at all.
New Jersey’s Neglect Exposed
A recent investigation by The Philadelphia Inquirer exposed the systemic failure of the New Jersey prison system and its contract medical care provider, Correctional Medical Services (CMS), to properly diagnose and treat HCV infected prisoners. The Inquirer reported that its investigation revealed a systemic failure to:
• Screen all prisoners for HCV, opting to remain “ignorant of the magnitude of the epidemic”;
• “continue treatment for incoming [prisoners] already receiving therapy for hepatitis C”;
• “fully evaluate and treat [prisoners] showing signs of severe liver damage from the virus”;
• “maintain complete patient records, making it difficult to know what tests have been done on individual patients or how many have died from complications”;
• “educate [prisoners], even some infected ones, about how the disease is spread and treated”; and
• “refer [prisoners] to liver specialists, despite requests by prison doctors.”
The Inquirer found that New Jersey does not know how many of its 24,000 prisoners are HCV positive, because it does not test for the disease unless the prisoner requests testing. Additionally, only one New Jersey prisoner was receiving HCV treatment at the time of the investigation, and it took filing a lawsuit for him to begin receiving treatment. Prison officials responded to The Inquirer investigation by ordering a review of how HCV infected prisoners are treated. Devon Brown, the new commissioner of the New Jersey Department of Corrections, said that he was “disturbed about the cases . . . brought to [his] attention” and that his staff immediately reviewed the situation with CMS and ordered changes.
Brown ordered CMS to explain why only one prisoner, out of 1,170 known to be HCV positive, was receiving treatment. He also ordered CMS to inform all 1,170 prisoners of their condition. New Jersey medical director, Dr. Dwight Hutchison, “who oversees CMS, conceded that inmate health records were ‘spotty.’When asked whether, based on such incomplete records, he could assert that patients were getting reasonable care, Hutchison said, ‘If you’re speaking medically, the answer is no.’”
Even physicians currently and formerly under contract with CMS to provide medical care to New Jersey prisoners are frustrated with CMS’s handling of the HCV epidemic. They reported that their “attempts to refer prisoners to liver specialists or to order expensive diagnostic tests” were denied and that “it was difficult to persuade CMS supervisors to authorize certain medical tests.” One doctor who quit out of frustration reported that “orders for diagnostic tests such as liver biopsies were routinely” denied by CMS. “They drag their feet in getting them to a specialist,” the doctor said. “There’s always some type of excuse.”
When asked how many New Jersey prisoners had been screened for HCV, how many prisoners had received additional tests such as liver biopsies, and the reasons for denying treatment, CMS vice president of medical affairs, Louis Tripoli was unable to provide an answer, “citing electronic record-keeping problems.”
The one prisoner receiving HCV treatment had his case reviewed by Esteban Mezey, a liver specialist at Johns Hopkins University School of Medicine, who concluded that the care afforded to that prisoner was “below the usual standard of care and negligent.” The prisoner who had his HCV therapy halted when he entered prison has repeatedly pleaded with prison doctors to begin his treatment again, but to no avail. Although an October 2000 lab report indicated that “the virus was still multiplying in his blood stream” a prison doctor noted in a November 17, 2001 medical report: “Inmate feels he should have more treatment. Assure him he is doing well and needs no further treatment at this point.”
The prisoner continued to beg for treatment, writing: “I am very sick here. Would someone please help me?” But nobody seemed to care. The last entry in his medical file was an April 1, 2002 recommendation “that he get treatment ‘when discharged.’ He currently is scheduled for release in 2007.”
A medical audit conducted as a result of The Inquirer investigation revealed that 121 prisoners were not told of the results of their HCV tests for a period of one to two years and 21 of them were released from prison without being told they were infected.
Art Caplan, a medical ethicist at the University of Pennsylvania, said that failing to tell patients about a potentially life-threatening condition was a fundamental breach of standard medical practice. “The key moral issue is that every person, including a prisoner, has a right to know his health status,” Caplan said. “It’s very disappointing to see this going on in the 21st century,” Caplan said. “If it was done out of indifference, it’s immoral. if it was done out of incompetence, its incredible.”
CMS has been New Jersey’s medical care provider since 1996. The contract was set to expire in October 2002 and CMS has prison officials over a barrel. CMS sought “to increase its fee by 30 percent, or about $30 million a year, not including hepatitis C care.” CMS also told prison officials “it would not treat and test for hepatitis C” unless “the state itself picked up the bill.”
New Jersey rejected the CMS contract proposal because it did not include HCV treatment, but with no other bidders the state ultimately capitulated to the CMS demands, offering a 10-month contract extension worth nearly $100 million and the state agreed to pay all costs associated with HCV treatment.
Meanwhile New Jersey prisoners continue to die; prisoners like Cornell Thomas who was diagnosed with HCV in 2000 but never received treatment. Thomas died July 18, 2002, the third prisoner at Riverfront State Prison in Camden, New Jersey, to die of HCV complications in 2002, “according to the county Medical Examiner’s Office.”
Hopefully the needless HCV-related deaths will soon end in New Jersey, thanks to a lawsuit filed in federal court in October 2002 on behalf of former prisoner William Bennett, who tested positive for HCV in 2000 but was not informed of his illness until two weeks prior to his release in 2002, and ten unnamed prisoners. Attorneys Laura Feldman and Rosemary Pinto filed the suit alleging that CMS ignored the HCV problem in an attempt to extract greater profits from the New Jersey DOC. CMS, of course, denies placing profits before patient care, calling the allegations “absolutely untrue.”
Pennsylvania Lawsuits Bring Changes
New Jersey is far from alone when it comes to systematically reusing to treat HCV infected prisoners. Take Pennsylvania for example.
In 1992, Pennsylvania prisoner Rob Lassen had routine lab work done, but he wasn’t told until 1996 that he tested positive for HCV. The doctor who showed Lassen the 1992 test results gave him little hope of treatment and no explanation for why the results were withheld from him for four years.
Angry that he wasn’t told sooner, and fearful that he would die without treatment, Lassen began his own jailhouse investigation into the HCV problem. He soon discovered that he was not alone. He obtained affidavits from 30 prisoners, half of whom, like him had been tested but not told of their infection. Four prisoners were released on parole, ignorant of their disease and now feared they may have unwittingly infected others.
In 1997 Lassen began feeling run down and lost 20 pounds. A liver biopsy taken a few months later, during an unrelated surgery revealed liver damage. Stunned and frightened, Lassen filed grievances seeking medical care, but they were denied and he filed suit in federal court.
Lassen contacted Angus Love, a Philadelphia lawyer and director of the Pennsylvania Institutional Law Project, which provides legal aid to Pennsylvania prisoners. Love had been receiving similar complaints from prisoners across the state. In August 1999, Love met with prison officials, doctors, and lawyers. Former DOC medical director Fred Maue assured Love that DOC was aware of the HCV problem and the statewide wave of prisoner grievances and lawsuits related to the denial of HCV treatment. Maue informed Love that he was working with the DOC’s three private health care vendors to create a statewide plan for addressing the HCV problem. “We didn’t want litigation,” Maue recently explained. “We were concerned that these people with hepatitis C might truly develop medical complications and liver failure.”
In early 2000, the DOC began screening prisoners who were most at risk of infection due to past drug abuse. Soon, all 37,000 Pennsylvania prisoners were screened. Prison officials found that 23 percent, or 8,510; prisoners were HCV positive, and 17 percent of the 124 prisoner deaths in 2001 were due to HCV complications.
Unlike most states, Pennsylvania is now considered to be aggressively tackling the HCV epidemic within its prisoners. It has launched a comprehensive treatment effort, recognizing that sooner or later taxpayers will pay for treating the disease and it is better to pay up to $20,000 for HCV treatment now, rather than $250,000 for liver transplants later.
Lassen “was a big whistle-blower,” according to Dr. Joseph DiMino, health director for Montgomery County, and former Pennsylvania prison doctor. But his advocacy did not come without a price. In May 1999 Lassen was punished for “unauthorized group activity” related to his HCV advocacy and placed in segregation for 30 days. Because the offense was a major infraction, Lassen was also denied early release eligibility.
Once prison officials finally began treating prisoners in 2000, it was too late for Lassen. He was deemed ineligible-for-treatment because he did not have enough time remaining on his entence. He was released on October 30, 2000, and in 2001 began receiving HCV treatment, but it was unsuccessful.
Lassen sued prison officials for punishing him for his HCV activism. A settlement hearing was held on July 3, 2002, but after two hours the parties were still at odds. Lassen then addressed the court : “I’ve accomplished my goal. Pennsylvania now has a treatment, notification and counseling protocol,” Lassen began. “I have liver disease and it will probably kill me,” he said. “But if I get out of here and get hit by a bus, at least my life had some meaning.” Lassen then turned to the DOC lawyer and said, “To end this here, add a dollar to your offer.” Instantly, the DOC lawyer walked across the courtroom and handed Lassen a dollar bill, for a total settlement of $6,501.
Prisoners are not the only ones who are worried about their health. With one in four Pennsylvania prisoners infected with HCV, guards are nervous too. They are afraid they may be exposed to HCV from combative prisoners, bloody noses, scratches, stabbings, and bites.
Retired prison guard Bob Feldman believes he contracted HCV responding to a prisoner fight. It took a three year legal battle but Feldman’s workers’ compensation claim was finally approved. He is the only Pennsylvania guard to win a claim that his HCV infection is job related, but five other guards have claims pending. A December 2002 change in Pennsylvania’s workers’ compensation law should make it easier for them to prevail. Pennsylvania now joins nine other states which allows prison guards to make work-related HCV claims, assuming on the-job infection and placing the burden upon the employer to prove otherwise.
California Ignores HCV;
A 1999 study conducted by the California Department of Health Services revealed that 33 percent of prisoners entering the California Department of Corrections (CDC) during a short time in 1999, were infected with HCV. Although the study found that more than 50,000 California prisoners may have HCV, the CDC has identified only 14,305 HCV infected prisoners. Only 796, or one in 14 prisoners are receiving treatment, statewide.
California officials have no way of knowing exactly how many prisoners are HCV positive because they do not test all prisoners for the virus. “Treatment costs money, and the Corrections Department is in no hurry to find out how many people need treatment,” said Judy Greenspan of California Prison Focus. State prisoners are screened for HCV only if they or a prison doctor requests a test.
Many suggest that the CDC, like most states, does not make HCV screening routine because of the costs associated with treatment and liver transplants. Yet, a committee of state, federal and local health officials developed a strategic plan advocating early treatment. “One way to minimize these costs is by being pro-active rather than reactive in patient management over the long term,” according to the study by the Steering Committee and Working Group for the Prevention and Control of Hepatitis C in California.
Experts warn that prisons are incubators for HCV which is increasing the risk that prisoners will infect members of the general public upon release. “We’re talking about the health of the community,” said Barbara Van Baren, Kings County’s communicable disease coordinator.
“California’s correction system confronts serious challenges to identify and treat hepatitis C infection within the prison system to prevent transmission within the prison and to the public when prisoners and parolees return to their community,” said Jonathan Fielding, Los Angeles County’s health officer.
As California’s prison population skyrocketed during the last 20 years, so did its medical costs, which totaled $663 million in 2001. Yet, prison officials have dramatically slashed money for HCV treatment. In 2000, the CDC spent $5.5 million for HCV treatment, but in 2001, only $325,000 was budgeted for treatment and prison officials stopped treating new patients.
In 2000 Governor Gray Davis signed a measure appropriating $1.5 million to create the state’s first HCV education and screening program. Half of that money was allocated to prisons and required the CDC to publish an annual report on the prevalence of HCV in prisons, but it did not mandate testing. At the same time, the Governor vetoed a $9.5 million public health bill which cut $60,000 earmarked to allow Kings county disease specialist Debbie Grice to continue working as liaison to CDC prisons.
Deficiencies in the CDC medical care system, including its denial of testing and treatment for HCV infected prisoners, prompted the Prison Law Office to file suit in federal court in 2001, alleging that the state systematically ignores the medical needs of its prisoners. On January 25, 2002, CDC officials agreed to settle the suit, entering into a Stipulation for Injunctive Relief.
Marciano Plata v. Gray Davis, et al., USDC (ND Cal.) No. C-01-1351 T.EH (Stipulation for Injunctive Relief, Jan. 25, 2002) [PLN, Feb. ‘02].
Unfortunately, the HCV epidemic in prisons is not limited to New Jersey, Pennsylvania, and California. This is a problem in virtually every prison in the nation and its not going away anytime soon. We will report on developments in these and other cases.
Sources: The Philadelphia Inquirer, Bradenton Herald, Sacramento Bee, The New York Times, Assn. of State & Territorial Health Officials (ASTHO), National Digestive Diseases Information Clearinghouse (NIDDK), Centers for Disease Control and Prevention (CDC)
Julie Acklin (holding photo), our young "prisoners",
