Dying inmate's lawyer weighs hepatitis suit

Charles Demastus <demastus@aol.com>

From: sallyrob@earthlink.net

By Howard Pankratz
Denver Post Legal Affairs Writer

Thursday, February 28, 2002 - Up to 40 percent of prison inmates are
suffering from hepatitis C and the state is failing to treat them because of
the cost, a lawyer for a dying death-row inmate alleged Wednesday.

"It is going to be a huge issue," said David Lane, who represents convicted
killer Frank Rodriguez. "It is the HIV of the new millennium."

Lane said he may bring a class-action lawsuit against the Department of
Corrections for failing to properly treat 7,000 inmates he claims suffer
from the liver disease.

But Dr. Joseph McGarry, the department's chief medical officer, said an
estimated 17 percent, or 2,900, of the state's 17,150 inmates have hepatitis
C.

Health officials say 1.8 percent of the general public, or 2.7 million
people, suffers from the disease.

McGarry said treatment costs about $20,000 a year per inmate with hepatitis
C. The department budgets $7 million annually for medication, though there's
not a specific line item for hepatitis C drugs.

Before inmates are treated, they undergo an evaluation to determine how
advanced the disease is. They also must complete a year-long alcohol and
drug course before treatment.

While McGarry did not have figures for how many inmates are being treated
with a two-drug regimen of interferon and ribavirin, he said the drugs have
not been proven in clinical trials to save lives, particularly in advanced
cases.

He said hepatitis C can be contracted by the sharing of intravenous needles,
which are used among prison populations for drug use or tattoos.

"You are trying to use the funds available judiciously, give it to the right
people," McGarry said. Only "a few" inmates have died of hepatitis C in the
past five years, he added.

Rodriguez, 45, was convicted in the 1984 rape, torture and stabbing death of
Denver bookkeeper Lorraine Martelli. He is one of six inmates on death row.

But after spending the weekend in a Pueblo hospital, he was transferred
Tuesday to the hospice at the Territorial Correctional Facility in Can~on
City. Lane would not say how his client contracted the disease.

"All prison administrators are aware the hepatitis C issue is going to blow
up," Lane said. "It's going to take millions and millions and millions of
dollars to treat hepatitis C in prison."

If Lane does bring a class-action lawsuit, it could break new legal ground
nationally, he said.

While many inmates with the disease contracted it before being jailed, the
Eighth Amendment of the U.S. Constitution requires the government to care
for inmates, Lane said.

Lane said only a small number of inmates are being treated for the disease
because the department has erected almost insurmountable barriers before it
will administer the drugs.

"They make the treatment available but you have to jump through so many
hoops to become approved to take it that nobody can qualify," Lane said.

**********************************************

Hepatitis C rampant among inmates

By Karen Auge
Denver Post Medical Writer

Thursday, February 28, 2002 - Twenty years ago, the virus didn't even have a
name.

Now, hepatitis C is a scourge that affects millions in this country, puts
more people on liver-transplant waiting lists than any other disease and has
created economic and treatment nightmares for officials in the nation's
prisons, where the virus runs rampant.

In Colorado, about 17 percent of the 17,000 prison inmates have the liver
disease, according to the Department of Corrections. A lawyer for a dying
death-row inmate put the figure as high as 40 percent on Wednesday.

Last year, the U.S. Centers for Disease Control and Prevention estimated
that 18 percent of prisoners nationwide, or 360,000 inmates, have hepatitis
C.

Colorado tests all incoming inmates for a number of conditions and tests
liver function, but it can take decades for symptoms to manifest.

And not all inmates with the disease get treatment. Prison officials would
not comment on death-row inmate Frank Rodriquez's condition or treatment.

Written protocols determine who gets treatment, said Dr. Joseph McGarry,
chief medical officer for the Department of Corrections. Those written
protocols are not "whimsical or capricious," he said.

An inmate must complete a drug and alcohol treatment program, McGarry
said. And prisoners with advanced liver disease don't get treatment because it
would be futile.

The most effective drug combination costs the state, on average, about
$18,000 to $20,000 a year, McGarry said.

Mark Silverstein, legal director of the American Civil Liberties Union of
Colorado, reviewed the protocol and doesn't like it. "Our policy is that it
unnecessarily denies and delays treatment," he said. "And that's the
protocol on paper. In real life, it results in even more denials and
delays."

There is no vaccine for hepatitis C. Drug treatment works in about half the
patients, said Dr. Gregory Everson, a University of Colorado hepatologist.

But when the treatment does work, it often saves money in the long run, said
Everson.

If the disease progresses, it can cause cirrhosis or liver cancer,
potentially fatal conditions often treated with liver transplants.

Everson estimated that half the 400 CU patients waiting for liver
transplants have hepatitis C.

McGarry said prison officials referred two patients to CU to be considered
for the waiting list, but neither was put on it.

The rate of infection is far higher among prisoners than in the general
population, where it is believed that about 2.7 million have active cases of
hepatitis C.

Researchers believe large numbers of prisoners are intravenous drug users -
that is now the most common way of becoming infected with the virus. Before
1992, when blood-screening tests improved, blood transfusion was the most
common means.

The virus can also be spread through tattoos, and, rarely, through sex.

Denver Post Legal Affairs Writer Howard Pankratz contributed to this report.