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Appeals court decision could mean hepatitis treatment for thousands of Missouri inmates

Eastern Reception Diagnostic and Corrections Center in Bonne Terre, Missouri.
File photo / Willis Ryder Arnold
St. Louis Public Radio
Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri.

A federal appeals court will soon decide whether Missouri inmates with hepatitis C will be included in a class-action lawsuit seeking treatment for thousands of other state prisoners.

The American Civil Liberties Union and the MacArthur Justice Centerfiled a federal lawsuit against the Missouri Department of Corrections and prison health-care provider Corizon in December 2016. The lawsuit, brought on behalf of three inmates with hepatitis C, claims the department’s policy of only treating people with the most serious symptoms of the virus constitutes cruel and unusual punishment and violates the Eighth Amendment.

Last year, U.S. District Judge Nanette Laughrey granted class certification to inmates with the virus. That means the court’s decision would apply to more than 5,000 inmates in Missouri with hepatitis C, as well as the original plaintiffs.

The Department of Corrections has asked the United States Court of Appeals in St. Louis to overturn the decision to grant the inmates class-action status in the United States Court of Appeals for the Eighth Circuit in St. Louis. A three-judge panel heard oral arguments in September and is deciding whether or not to overturn the lower court’s ruling.

Hepatitis C is a blood-borne virus that affects the liver. Experts estimate 18 percent of inmates are infected, a much higher rate than the general population. It can be fatal if untreated in some cases. It’s curable, but the cost of the antiviral drugs to treat it cost more than $80,000.

Some people with the virus have few or no symptoms; others suffer from scarring of the liver or liver failure. The Department of Corrections contends that because the incarcerated hepatitis C patients have such varied medical needs, the class is too broad, and they can’t all be included in the same lawsuit.

The thousands of inmates with the virus have “widely divergent medical needs,” said Missouri Deputy Attorney General Ryan Bangert, who argued the state’s case before the court Sep. 27.

“The question here is whether the court can properly answer if the question of if that policy is constitutional as applied to every single inmate with HCV, and the evidence in the record demonstrates that not all inmates with HCV are equally situated,” Bangert told the court.

But lawyers from the American Civil Liberties Union said it’s not the health of the inmates that’s in question – it’s the corrections policy itself.

“The decision whether or not to provide treatment is being made in an unconstitutional way,” ACLU lawyer Tony Rothert said in an interview.

“How that affects people down the road will be different, but that’s not what our case is about. Our case is about the treatment or non-treatment decision that’s being made, and everyone in the class is subject to the same policy,” he said. “We’re challenging the policy and not what happens as a result.”

Other social justice groups have brought similar cases against corrections departments in other states. Last month, the Colorado Department of Corrections reached a $41 millionsettlement in a similar class-action case in a U.S. district court.

However, if the court ultimately rules in the plaintiff’s favor, the cost could be enormous. Treating each inmate with hepatitis C with the antiviral drugs would cost millions of dollars.

The court is expected to rule on the appeal before the end of the year. After that, Rothert says it could be another year before the lower-district court rules on the original case.

Follow Sarah on Twitter: @Petit_Smudge

Sarah Fentem is the health reporter at St. Louis Public Radio.