Tennessee inmate hepatitis C appeal: Circuit court upholds lower decision in favor of TDOC

An appeals court upheld a district court's ruling Monday against a group of inmates seeking increased treatment for chronic hepatitis C infections.

In October 2019, a federal judge found that the Tennessee Department of Correction's hepatitis C treatment policies and procedures do not violate inmates' constitutional rights. 

Several inmates filed a claim in 2016 that the department's policies for treating hepatitis C (sometimes called HCV) amount to a violation of their Eighth Amendment rights that protect against cruel and unusual punishment. 

Federal district Judge Waverly Crenshaw ruled instead in favor of the state. Crenshaw found that TDOC's "policies as written and as applied are not perfect, but Plaintiffs have failed to prove" the rights violation. 

The 6th Circuit Court of Appeals rejected the claims that Department of Correction medical director Dr. Kenneth Williams acted with “deliberate indifference to their serious medical needs.”

“What the record does show, rather is that Williams repeatedly sought budget increases for hepatitis C treatment, indeed with considerable success; and that he spent ‘every penny’ of those funds on treating sick inmates. In the real world of limited resources, Dr. Williams’s actions pursuant to the 2019 guidance reflected anything but indifference," the appeals court opinion states. 

But in a dissent, Judge Ronald Lee Gilman argued that although a high cost may be a factor in a treatment consideration, the fact a cost exists does not remove a state's obligations under the Constitution — and worried that the appeals court decision could create a "troubling" precedent for the application of Eighth Amendment from state to state.

Lack of treatment can cause harm

By 2019, approximately 4,740 of the 21,000 inmates in Tennessee’s prisons had hepatitis C, according to court documents.

The virus’s prevalence, along with the declining cost of direct-acting antivirals, now favored as a treatment method, prompted TDOC to update its guidance for the “evaluation, staging, tracking, and other treatment of patients” with hepatitis C, documents show.

Williams led the creation and implementation of this new guidance, which applied to all hepatitis-C infected inmates in the state’s prisons. And while the cost of antiviral treatment is decreasing, it still remains expensive. 

The state has argued a realistic assessment of the funds available for inmate medical care requires rationing or prioritizing expensive procedures to those most in need. But the plaintiffs disagree on who should be in that category. 

"The reasons to treat chronic hepatitis C patients as soon as possible have become increasingly clear, causing rationing schemes such as the one endorsed by Dr. Williams to be abandoned by the medical establishment," Gilman wrote. "Dr. Williams, who has seen 81 inmates die from hepatitis C since direct-acting antivirals became available, is obviously aware of this danger."

Tennessean reporting in 2016 highlighted how thousands of inmates known to have the disease were not receiving treatment, and that thousands more went untested in the system. In the wake of that report, lawmakers called for further transparency and the lawsuit was filed. 

One inmate, testifying in July 2019, said the limited treatment made plaintiffs "feel like you've been let down, that your life has been shortened, and it hurts the chance of redemption you've worked for."

Medication is expensive in tight budget 

TDOC prioritizes patients with the most severe cases, but the plaintiffs claimed that limiting treatment in less-severe cases meant they were sure to progress and cause serious problems. 

Hepatitis C can cause secondary health problems, especially affecting the liver, sometimes leading to cirrhosis, or scarring, that limits the ability of the organ to function and possibly leading to death.

The progression of the disease, however, may take decades to become truly serious, and officials say prioritizing the application of limited resources is necessary to the operation of the department.

Some medical guidelines suggest direct-acting antiviral (DAA) medications should be administered to anyone with the virus for treatment, according to court documents. Most inmates are not receiving that medicine.

DAAs can cost upward of $80,000 per person, and organizations like TDOC may not be able to afford the cost of the treatment for everyone infected with the disease, court documents show.

Gov. Bill Lee included additional funds, nearly $25 million, for hepatitis C treatment in TDOC facilities in a budget released in April 2019. 

But that was a half-measure, Gilman's dissent argued. 

"Even accepting the majority’s tenuous premise that Dr. Williams should not be held

responsible for his limited budget, the argument would carry more weight had Dr. Williams actually requested full funding and not received it," he wrote. "But nothing in the record shows that Dr. Williams ever asked for enough funding to treat all of the inmates suffering from chronic hepatitis C. 

"In sum, I believe that the majority has failed to consider the substantial risk of serious

harm implicit in Dr. Williams’s rationing scheme. I further conclude that a lack of funding does not excuse the Eighth Amendment violation shown by the plaintiffs in the present case."

Gilman also worries the lack of focus on the harm caused to those not treated for the virus could create a "patchwork" application of the amendment from state to state.  

Still, the appeals court found that TDOC's policies and practice are reasonable interpretations of the requirements under law. 

Tennessee Attorney General Herbert H. Slatery III celebrated the decision in a statement Monday. 

“The Sixth Circuit recognized and upheld what the District Court had determined: that the Department has a compassionate, well-thought out plan for treating the patients, using resources that had been significantly increased over the years by the Governor and the General Assembly,” Slatery said.

Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms.