Pennsylvania ordered to give Abu-Jamal costly but curative hepatitis C treatment

January 18, 2017

In a ruling that may have wide-ranging consequences, a Pennsylvania federal judge has granted high-profile inmate Mumia Abu-Jamal an injunction, ordering state prison officials to treat him within 21 days with expensive new hepatitis C medications.

U.S. District Judge Robert D. Mariani of the Middle District of Pennsylvania found that Abu-Jamal would likely succeed on his claims that state officials violated the Eighth Amendment to the U.S. Constitution by acting with “deliberate indifference” to his serious medical need — chronic hepatitis C — and that he would suffer irreparable harm without an injunction.

Judge Mariani therefore blocked the Pennsylvania Department of Corrections’ Hepatitis C Treatment Committee and other officials from enforcing a recently issued protocol for treating prisoners with hepatitis C as it relates to Abu-Jamal.

Hepatitis C is a blood-borne viral liver infection that can lead to liver damage and malfunction, liver cancer and death.

The standard of care is to prescribe direct-acting antiviral, or DAA, agents such as Sovaldi, Harvoni and Viekira Pak to patients with almost any level of hepatitis C as they have a 90 to 95 percent cure rate and few side effects, Judge Mariani said, citing reports from the Centers for Disease Control and Prevention, other medical organizations and testimony from the DOC’s expert witness.

However, these new drugs, which the Food and Drug Administration approved within the last three years, can cost from $54,000 to $94,500 per patient.

The DOC’s protocol for treating hepatitis C patients “presents a conscious disregard of a known risk” that inmates will suffer life-threatening complications because it reserves the new medications only for the sickest inmates and delays treating them with these drugs until the disease progresses to a certain point, the judge said.

Injunction denied in first suit

Abu-Jamal, who is serving a sentence of life without parole for the 1981 murder of a Philadelphia police officer, filed a federal lawsuit in 2015 against the DOC and various prison officials. He asserted various claims, including deliberate indifference concerning his medical treatment.

He moved for an injunction to compel the defendants to provide him with the new drugs, claiming he had been suffering from a persistent, extensive rash caused by hepatitis C.

Judge Mariani denied Abu-Jamal’s motion, saying he had sued the wrong defendants. He needed to sue the members of the statewide DOC Hepatitis C Treatment Committee, who decided not to give Abu-Jamal the medication he sought and had the authority to reverse that decision, the judge said. Abu-Jamal v. Kerestes et al., No. 15-cv-967, 2016 WL 4574646 (M.D. Pa. Aug. 31, 2016).

“However, were the proper defendants named, the court believes there is a sufficient basis in the record to find the [Corrections Department’s] current protocol may well constitute deliberate indifference in that, by its own terms, it delays treatment until an inmate’s liver is sufficiently cirrhotic,” Judge Mariani said.

Injunction granted in second suit

Abu-Jamal filed a new complaint against the committee members in September 2016, asserting only an Eighth Amendment claim. He again moved for a preliminary injunction, and this time Judge Mariani granted it.

The judge noted that the DOC’s expert witness Dr. Jay Cowan and defendant Dr. Paul Noel, DOC’s chief of clinical services, both testified at a hearing in the first suit that Abu-Jamal has chronic hepatitis C, but because he “did not have cirrhosis or vast fibrosis” he was not treated with the new drugs.

They testified that under the department’s interim protocol, in effect from November 2015 to November 2016, only the sickest inmates, who have already developed irreversible cirrhosis of the liver and other severe complications, are receiving the drugs.

Meanwhile, Abu-Jamal and the vast majority of several thousand Pennsylvania inmates with hepatitis C were only being regularly monitored, they said. Prison officials have estimated that it would cost $600 million to treat all Pennsylvania inmates currently diagnosed with hepatitis C.

Although the defendants adopted a new protocol in November 2016, it “suffers from the same fatal flaw as the interim protocol: it refuses, without medical justification, to provide treatment for certain inmates with hepatitis C and also imposes an unreasonable condition —having vast fibrosis or cirrhosis — on treatment,” the judge said.

Judge Mariani concluded that Abu-Jamal is likely to prevail in his suit and the balance of harms weighs in his favor. He has shown he will suffer irreparable harm if treatment is delayed because his condition will continue to worsen, the opinion said.

“The realities of civil litigation make it likely that waiting for resolution at trial will prolong plaintiff’s suffering for a significant period of time and result in an overall deterioration of his health,” the judge said.

On the other hand, “the only conceivable injury defendants will suffer is monetary,” Judge Mariani found.

“While the court is sensitive to the realities of budgetary constraints and the difficult decisions prison officials must make, the economics of providing this medication cannot outweigh the Eighth Amendment’s constitutional guarantee of adequate medical care,” he concluded.

In a separate order, Judge Mariani ordered the DOC to have Abu-Jamal examined by a physician experienced in hepatitis C treatment within 14 days and if there are no medical reasons to deny him the DAA drugs, to begin administering them within one week after that.

While Abu-Jamal is suing only for himself, a class-action lawsuit on the same issue is  in Philadelphia federal court. Chimenti v. Pa. Dep’t of Corrections et al., No. 15-cv-3333, complaint filed (E.D. Pa. June 12, 2015).

Similar suits have been filed around the country. None so far has resulted in a definitive ruling that inmates have a constitutional right to DAA treatment.

Abu-Jamal v. Wetzel et al., No. 16-cv-2000, 2017 WL 34700 (M.D. Pa. Jan. 3, 2017).