http://www.hivcorrections.org/archives/april01/

April 2001
Hepatitis C Virus: The Correctional Conundrum
Anne S. De Groot, M.D.*, Brown Medical School, Editor, HEPP News

Treatment of Hepatitis C (Hepatitis C Virus) is emerging as the most controversial subject in correctional health care. Much of the controversy around Hepatitis C Virus testing and treatment in corrections is related to delayed recognition of the important role incarcerated individuals play in the transmission of hepatitis in the communities after they are released. State and Federal public health officials have been slow to recognize the potential benefits of screening, educating, and where possible, vaccinating incarcerated persons to prevent morbidity and mortality associated with viral hepatitis

Almost exactly two years ago, HEPP Report published an article discussing HIV+ inmates' constitutional rights to medical care in light of two divergent cases recently decided at the federal appellate court level.1 This month's article re-examines those cases and looks at what has happened since then to guide correctional medical providers through this murky area of the law.

As HIV health care professionals know, everything changed in 1996 with the advent of Highly Active Antiretroviral Therapy (HAART), and more changes are on the horizon. As ever-changing standards for HIV treatment enter prisons and jails, correctional medical staff faces the unique issue of ensuring that patient care satisfies the 8th Amendment of the Constitution, the amendment prohibiting "cruel and unusual punishment."  It is only natural that medical staff would want the courts to provide clear guidance as to what kind of treatment would and would not violate an inmate's rights. But the law rarely provides such clear and concise answers, and this is nowhere more evident than in 8th Amendment law. 

Perhaps this is for the best. After all, courts are not in the business of diagnosis and typically preface 8th Amendment medical rulings with language to this effect. This means that courts will not second-guess a treatment decision unless there is compelling evidence that a particular action - or inaction - was clearly inappropriate. Therefore, it is unlikely that the courts will ever state, as a matter of law, that HIV-positive inmates are entitled to a certain type of care. Instead, courts will look to a medical provider's particular state of mind, in light of individual circumstances, to determine whether or not he or she has violated the 8th Amendment.

How the Circuit Courts Have Addressed HIV Treatment
Two cases at the circuit court level (just below the Supreme Court) have dealt with denial of HIV treatment under the 8th Amendment. In Perkins v. Kansas Department of Corrections, 165 F.3d 803 (1999), an HIV+ inmate was treated with AZT and 3TC, but denied a protease inhibitor, a critical component of proper treatment. The 10th Circuit Court ruled for the prison, holding that the inmate simply disagreed with his treatment, which could never amount to a constitutional violation. Id. at 811.

Around the same time, in Sullivan v. County of Pierce, 216 F.3 1084 (2000) (Unpublished Decision)2 , the 9th Circuit Court addressed the issue of whether denying an inmate his HIV "cocktail" for just two or three days could amount to an 8th Amendment violation. In this case, the court said, it might. Id.

While these cases appear to contradict each other, they both apply the Farmer standard of deliberate indifference. The legal distinction between them is solely about the state of mind of the medical staff. The court in Perkins was aware of what established treatment protocols were, even citing medical text that affirms the necessity of protease inhibitors. 165 F.3d at FN9. However, without evidence that staff knowingly provided substandard care, there can be negligence or malpractice, but no constitutional violation.

By contrast, in Sullivan, there were myriad allegations that staff knew that denying HIV treatment for any length of time created serious risks. Indeed, there was testimony that it was "common medical knowledge that an AIDS patient taking protease inhibitors as part of an AIDS cocktail had to remain in strict compliance with that regimen at all times and without exception, lest the cocktail become ineffective."  216 F.3 at 1084.

Lower Court Cases since Perkins and Sullivan
Since Sullivan, no other federal appellate court has examined the issue of proper HIV treatment under the 8th Amendment. Lower courts, though, have dealt with HIV treatment on numerous occasions, sometimes echoing Perkins, and sometimes extrapolating from other non-HIV precedent-setting cases - but all of them applying the rules from the Supreme Court case of Farmer v. Brennan. In each case, the fundamental question is "what did the staff know?”

A typical analysis in the Perkins vein can be found in Evans v. Bonner, 196 F. Supp.2d 252 (E.D.N.Y. 2002): an HIV+ inmate in New York suffered a sharp increase in his viral load possibly due to repeated delays and missed doses of his medications; the court stated that these interruptions may have amounted to negligence. But because the inmate could not show that the nurse in charge of administering medicines knew that her actions put him at substantial risk of harm, his 8th Amendment challenge failed. Using the same rationale, a Pennsylvania court in Clark v. Doe, 2000 WL 1522855 (E.D.Pa.), dismissed an inmate's claim that denial of his HIV regimen for two days was a constitutional violation.

Other courts have read the Farmer "deliberate indifference" standard perhaps more broadly. In Taylor v. Barnett, 105 F. Supp.2d 483 (E.D.Va. 2000), an HIV+ inmates' treatment regimen was changed, resulting in increased side effects and decreased efficacy. The inmate alleged that the change in treatment was motivated solely by cost considerations. 105 F. Supp.2d at 489. The court held that such an allegation, if true, was sufficient to show deliberate indifference and that treatment decisions made "solely upon cost considerations without medical rationale" are "unacceptable." Id.

Some courts have inferred that medical staff was deliberately indifferent simply because the risk of harm from the alleged action or inaction was exceedingly obvious (Davis v. Prison Health Services, 2002 WL 237871, 2 (D.Del.)), or that non-medical rationales for treatment decisions would almost always constitute deliberate indifference (Cloud v. Goldberg, 2000 WL 157159, 3 (E.D.Pa.)). For example, a pattern of missed dosages due to lockdowns or transfers could amount to a constitutional violation.

Ensuring an Inmate's Rights Under the Eighth Amendment 
Because deliberate indifference is analyzed only in light of the individual circumstances of each case, how can medical staff in correctional settings know where the line is between constitutional and unconstitutional treatment? Amidst the ambiguities and semantic struggles within the body of 8th Amendment law, there is one constant upon which medical staff can rely:  "[w]hether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable" under the 8th Amendment. (Farmer, 511 U.S. 842, a standard that incorporates due regard for prison officials' "unenviable task of keeping dangerous men in safe custody under humane conditions.") 

In practical terms, this means that medical staff who stay reasonably abreast of HIV treatment developments and practice in good faith can never be deliberately indifferent, providing they afford their inmates the benefit of their medical skill.

The 8th Amendment
The original intent of the 8th Amendment was to prevent tortures and other barbarous forms of punishment or actions that offend the "conscience of mankind." Estelle v. Gamble, 429 U.S. 97, 102 (1976). Later, 8th Amendment cases reflected a more idealistic vision, prohibiting actions incompatible with "the evolving standards of decency that mark the progress of a maturing society."  Id. at 105. Under these principles the Supreme Court interpreted the 8th Amendment to include medical treatment, based on the fact that denying medical care would result in unnecessary suffering that could serve no penal purpose. 

Later cases that apply Estelle have led to an interpretation of three basic rights for all prisoners: The right to access to care; the right to a medical opinion; and the right to have that opinion carried out. Estelle also affirmed the seminal test the Court will use to determine 8th Amendment violations: whether correctional staff has shown deliberate indifference to an inmate's serious medical needs.

The first time the Court seriously expounded on the test of "deliberate indifference" was in Farmer v. Brennan, 511 U.S. 825 (1994). In this case, the Court sought to clarify what "deliberate indifference" really means. Inherent to "deliberate indifference" is that prison staff knowingly acted or failed to act. But it's not quite this simple. Even in this pivotal case, the Court struggled for a definition. Circling around the issue, the Court describes deliberate indifference as lying "somewhere between the poles of negligence at one end and purpose or knowledge at the other."  Id. at 836. The Court elaborates: deliberate indifference is something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Id. at 835. However, it is something more than failing to alleviate significant risk that staff should have known about. Id. at 838. Similarly, deliberate indifference may be found where a risk of harm was patently obvious (Id. at 842), but cannot be found where an inmate plaintiff has only proven negligence or even malpractice (which do not have a state of mind requirement). Id. at 835. 

With this as a framework, it is no surprise then that the courts, applying the Farmer standard, would appear to come to opposite conclusions in HIV cases. But this appearance may be just that: an appearance. The apparent contrast in the following cases, upon analysis, really points to the direction the courts are heading in their decisions of HIV cases in corrections and are quite useful instructional and predictive tools.

Conclusion
While courts look at patients' suffering from a variety of disease entities, HIV is of particular interest to the judiciary because of its high prevalence within the correctional environment. As with poor treatment of HIV, poorly-treated tuberculosis or other infectious entities would be held to similar standards. The controversy and litigation concerning HIV can be attributed to initial resistance in some correctional settings to treat the disease adequately.

Eighth Amendment rulings have contemplated changes in medical wisdom. As the court noted in Sullivan, the more inappropriate a treatment decision is in light of a patient's serious need, the more likely it is that staff members were deliberately indifferent. 216 F.3d at 1084. Thus, as certain treatments become established protocols, and knowledge about drug resistance and HIV become commonplace in the medical profession, correctional medical staff will likely be increasingly held to those standards of knowledge by virtue of their obviousness. It is highly unlikely, however, that courts will ever cease to recognize the particular realities of working within the correctional environment.