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Abu-Jamal v. Wetzel

United States District Court, M.D. Pennsylvania

January 3, 2017

MUMIA ABU-JAMAL, Plaintiff,
v.
JOHN WETZEL, et al., Defendants.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge.

         I. Introduction & Procedural History

         Presently before the Court is Plaintiffs Motion for a Preliminary Injunction, (Doc. 7), filed October 10, 2016. Plaintiff, a state prisoner, seeks this injunction to require Defendants to immediately treat his active hepatitis C infection with direct-acting antiviral drugs. (Doc. 7). This is not Plaintiff's first attempt at such relief. On August 31, 2016, this Court, in a related case, denied Plaintiffs request for a preliminary injunction seeking the same relief. Abu-Jamal v. Kerestes, 2016 WL 4574646 (M.D. Pa 2016).[1] Thus, to fully understand the posture in which the present case comes before this Court, a brief history of both cases is necessary.

         Plaintiff, Mumia Abu-Jamal, filed a complaint in Abu-Jamal 1 on May 18, 2015, "claiming violations of the right to association and access to the courts." Abu-Jamal v. Kerestes, 2016 WL 4574646, at *1. On August 24, 2015, Plaintiff filed a motion for a preliminary injunction seeking to compel Defendants-various medical staff involved in the treatment of his medical conditions and several Pennsylvania Department of Correction ("DOC") staff-to provide him with "immediate treatment of his hepatitis C with recently developed direct-acting antiviral ("DM") medication." Id. This Court held a three day evidentiary hearing on the matter in December of 2015. Id.

         In an Opinion issued on August 31, 2016, this Court found that the "DOC has an interim protocol to address patients with hepatitis C" and that, under that protocol, a "Hepatitis C Treatment Committee has the ultimate authority to decide whether" an inmate is treated with DDA medications. Id. at *5, *8. This Court went on to conclude that "[t]he protocol as currently adopted and implemented presents deliberate indifference to the known risks which follow from untreated chronic hepatitis C." Id. at *9. This Court, however, did not issue a preliminary injunction because "p]t was the Hepatitis C Treatment Committee who made the decision not to give Plaintiff DAA medications and that had, and continues to have, the ultimate authority to determine whether or not Plaintiff will receive the DAA medications, " and "[t]he named Defendants [were] not members of the Hepatitis C Treatment Review Committee."[2] Id. Thus, this Court concluded that it could not "properly issue an injunction against the named Defendants, as the record contain[ed] no evidence that they ha[d] authority to alter the interim protocol or its application to Plaintiff."[3] Id. at *10.

         On September 30, 2016, Plaintiff filed the Complaint in this action alleging a single count titled "Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C" and naming the following as defendants: John Wetzel, Secretary of Pennsylvania Department of Corrections; Dr. Paul Noel, DOC Bureau of Health Care Services Chief of Clinical Services, member of Hepatitis C Treatment Committee; Bureau of Health Care Services Assistant Medical Director, member of Hepatitis C Treatment Committee; Bureau of Health Care Services Infection Control Coordinator, member of Hepatitis C Treatment Committee; Correct Care Solutions representative on the Hepatitis C Treatment Committee; Correct Care Solutions; Joseph Silva, DOC Director of Bureau of Health Care Services; and Treating Physician SCI Mahanoy. (Id.). On Octobers, 2016, Plaintiff filed a Motion for a Preliminary Injunction seeking the relief this Court denied in Abu-Jamal v. Kerestes. (Doc. 7). In support thereof, Plaintiff attached the transcripts from the evidentiary hearing held in Abu-Jamal 1. During a conference call held on December 1, 2016, all parties agreed that a new evidentiary hearing was not necessary and that this Court could decide the present motion on the basis of the exhibits filed.[4] The issue has been fully briefed and is now ripe for decision. For the reasons set forth below, the Court will grant Plaintiffs Motion.

         II. Findings of Facts

         Because the Court is relying on the testimony that was given in Abu-Jamal 1, the Court adopts the following findings of facts from Abu-Jamal v. Kerestes:

         Hepatitis C and Treatment Thereof

         1. The DOC Defendants' expert witness Dr. Jay Cowan is licensed to practice medicine in Pennsylvania, New York, and New Jersey and is double board-certified in internal medicine and gastroenterology and hepatology. (Cowan Test, Dec. 22, 2015, Doc. 95 at 196:9-13, 197:10-11). He has been the Medical Director of the Rikers Island correctional facility since 2011. (Id. at 198:1-4). Dr. Cowan has treated patients with hepatitis C in his capacity as the Chief of Gastroenterology at North General Hospital in Harlem, New York City, in private practice in Harlem, through his work in Harlem Hospital's Division of Gastroenterology, and in his work at Rikers Island. (Id. at 197:20-198:11).

         2. Chronic hepatitis C is a serious disease that is a major public health issue in the United States and worldwide. (Cowan Test., Dec. 23, 2015, Doc. 96 at 20:17-22). It is the number one reason for liver transplants in the United States at present, as well as the number one cause of liver cancer in the United States. (Id. at 21:22-22:2).

         3. Hepatitis C is contagious and transmitted primarily by blood. (Cowan Test., Dec. 23, 2015 at 22:3-5).

         4. Dr. Cowan testified that of those individuals infected with Hepatitis C, 75 percent to 85 percent will develop chronic hepatitis, which is inflammation of the liver. Of those who develop chronic hepatitis, 20 percent to 30 percent will go on to develop cirrhosis over the next 10 to 20 years. Of the individuals who develop cirrhosis, two percent to seven percent will develop hepatocellular carcinoma. (Cowan Test., Dec. 22, 2015 at 199:16-25). During cross examination, Dr. Cowan also testified that of those exposed to hepatitis C, between 50 percent and 85 percent will develop chronic hepatitis. (Cowan Test., Dec. 23, 2015 at 21:7-8).

         5. Cirrhosis represents a late stage of progressive hepatic fibrosis, characterized by distortion in the liver architecture and the formation of regenerative nodules that no longer allow the liver to function properly. (Cowan Test., Dec. 22, 2015 at 201:21-202:1).

         6. Individuals with cirrhosis often experience a decrease in the number of platelets circulating in their blood. Cirrhosis may have an impact on both platelet production and platelet survival. (Id. at 204:18-205:1).

         7. Individuals with cirrhosis are at an increased risk for ascites, which is an accumulation of peritoneal fluid in the abdominal cavity, for portal hypertension, for hepatic encephalopathy, which is mental confusion associated with the increased toxic burden that the liver cannot filter out, and for the occurrence of jaundice and/or rising bilirubin levels in the bloodstream. These are markers of decompensated cirrhosis. (Id. at 207:23-208:14).

         8. Metavir scores indicate the level of fibrosis in the liver on a five-point scale from F0 to F4. F2 and F3 mark the progression of fibrosis from less severe to more severe, with F4 marking cirrhosis. (Id. at 202:9-13).

         9. Dr. Cowan testified that very often, medical professionals cannot predict the rate of progression of fibrosis. (Id. at 208:15-20).

         10. Correct Care Solutions ("CCS") is the contracted health provider for the DOC. (Cowan Test, Dec. 23, 2015 at 4:14-16).

         11. Dr. Cowan is a paid consultant with the Correct Care Solutions Hepatitis C Review Committee at DOC. (Id. at 4:8-13). Dr. Cowan also testified that he "serve[s] on the Correct Care Solutions Hepatitis C Review Committee." (Id. at 67:16-17).

         12. Dr. Cowan testified that there is "not very good concordance between physical symptoms [of hepatitis C] that a patient may experience and their degree of fibrosis or cirrhosis, " such that one cannot say at what level of fibrosis or cirrhosis a person will begin to experience physical symptoms related to hepatitis C. (Cowan Test., Dec. 22, 2015 at 207:11-17).

         13. The landscape of treatments for hepatitis C is evolving very rapidly. (Id. at 201:8-9).

         14. Sovaldi and Harvoni are DM medications for the treatment of hepatitis C. Sovaldi was first approved by the Food and Drug Administration in December 2013. Harvoni was first approved in October 2014. (Id. at 201:1-6). These drugs have "relative low-risk side effects" and "high success rates of 90 percent plus." (Id. at 213:24-214:2).

         15. Dr. Cowan agreed that, on average, "with the new drug, there's a 90 to 95 percent chance that the treatment will be successful." (Cowan Test, Dec. 23, 2015 at 28:5-7; see also Noel Test, Dec. 23, 2015, at 129:10-13 (agreeing that if Plaintiff were treated with direct-acting antivirals, there is a 90 to 95 chance he would be cured of Hepatitis C)).

         16. "The goal of Hepatitis C anti-viral treatment is to achieve a sustained virological response (SVR), defined as undetectable HCV virus in the blood." (Pa. Dep't of Cor., Interim Hepatitis C Protocol, Pl.'s Ex. 30 at ¶ (A)(1)).

         17. "Achieving an SVR may significantly decrease the risk of disease progression and the development of decompensated cirrhosis, liver cancer, liver failure, and death." (Id.). Dr. Cowan agreed with the statement that patients cured of HCV infection experience numerous benefits, including a decrease in liver inflammation and a reduction in liver fibrosis. (Cowan Test., Dec. 23, 2015 at 25:19-25). He also agreed with the statement that delay in treatment decreases the benefit of SVR. (Id. at 26:4-7). Dr. Cowan further agreed that successful treatment of hepatitis C has been shown to reduce, if not eliminate, fatigue in patients with chronic hepatitis C. (Id. at 28:1-4).

         18. The October 2015 guidelines from the American Association for the Study of Liver Diseases ("AASLD") and Infectious Diseases Society of America ("IDSA") entitled "When and in Whom to Initiate HCV Therapy" "recommend treatment [using DAA therapies] for all patients with chronic HCV ["hepatitis C virus"] infection, except those with short life expectancies that cannot be remediated by treating HCV, by transplantation, or by other directed therapy." (Am. Ass'n for the Study of Liver Diseases & Infectious Diseases Soc'y of Am., When and in Whom to Initiate HCV Therapy, Pl.'s Ex. 18 at 1; see also Cowan Test., Dec. 23, 2015 at 24:9-14).

         19. The Centers for Disease Control ("CDC") states that the standard of care in hepatitis C treatment in the United States is treatment with direct-acting antiviral agents such as Harvoni and Viekira Pak. (Ctr. for Disease Control, Surveillance for Viral Hepatitis - United States, 2013, Pl.'s Ex. 17 at 5-6). The CDC refers providers caring for hepatitis C-infected patients to the AASLD/IDSA guidance for continuously updated information regarding hepatitis C treatment. (Id. at 6).

         20. Dr. Cowan agreed that the CDC points to the AASLD/IDSA guidelines as the standard of care for the treatment of Hepatitis C. (Cowan Test, Dec. 23, 2015 at 33:15-34:9).

         21. Dr. Cowan testified that he agreed that the same standard of care as to hepatitis C treatment that is applicable to the community at large should apply in a correctional setting. (Id. at 32:17-20).

         22. Dr. Cowan testified that "[a]t the current time, given the backlog of patients that have this disease, it is [his] recommendation . . . that the sickest patients be treated first. Those are the patients with fibrosis scores of 3 and 4." (Id. at 66:19-22).

         23. Dr. Cowan testified "[i]f [a] patient had Chronic Hepatitis C, in private practice, [he] would engage in a conversation with the patient's insurance company and recommend the current AASLD Guidelines" and that, if the patient could pay for it, he would recommend treatment. (Id. at 68:7-18).

         24. Dr. Cowan testified that "[t]here is a fiscal component involved" in the determination of who should and should not receive treatment with DAA medications for hepatitis C. (Id. at 82:18-25).

         25. Dr. Paul Noel is the Chief of Clinical Services for DOC, a position which he has held since 2014. (Noel Test, Dec. 23, 2015, Doc. 96 at 90:3-7). Dr. Noel has worked in correctional health care in Pennsylvania since 1994. (Id. at 90:12-23).

         26. Dr. Noel testified that in his role as DOC's Chief of Clinical Services he is "involved with oversight of the medical contract... [he is] the point of contact to make sure that the clinical services are appropriate, according to contract, and policies and procedures performed by the medical contractor. [He] deal[s] more directly with [the medical contractor's] corresponding State Medical Director on issues of quality improvement, policies and procedures, things like that." (Id. at 91:15-25).

         27. Dr. Noel agreed that the most recent AASLD Guidelines on the treatment of hepatitis C recommend treatment for everyone. (Id. at 130:16-23).

         28. Dr. Noel testified that, with respect to the AASLD Guidelines,

We review them, we take them into consideration, they're part of the big picture, they're not the single bullet that has everything right, it's a much more complicated - it would be nice if we could go to one document and everybody follow it and everything would be wonderful, it just doesn't work that way. So the AASLD has a large voice at the table, if that's your question. We don't necessarily do just what the AASLD says.

(Id. at 131:13).

         29. Dr. Noel testified that in or about December 2013, DOC ceased administration of then-current medications because "the AASLD made specific recommendations to cease those current medications that we were using. And that's why they were no longer used, so it's not like we had the option to keep doing it." (Id. at 133:9-134:1).

         DOC's Interim Hepatitis C Protocol

         30. Dr. Noel testified that DOC has an interim protocol to address patients with hepatitis C. (Noel Test, Dec. 23, 2015 at 99:15-22).

         31. The interim protocol was issued on November 13, 2015 and effective November 20, 2015. (Pl.'s Ex. 30).

         32. Dr. Noel testified that the interim protocol "was formulated to address those patients with Hepatitis C who are in the most need of treatment right away." (Noel Test,, Dec. 23, 2015 at 99:24-25). He testified that the policy is "interim" in the sense that it will be adjusted as DOC treats current patients and as science and hepatitis C treatment guidelines in the community and within the prison system evolve. (Id. at 99:23-100:9).

         33. Dr. Noel testified that the interim protocol replaced a prior hepatitis C protocol, which "was a protocol for medications that are no longer used." (id. at 100:14-25).

         34. Dr. Noel was involved in developing the interim protocol and had assisted in developing the previous protocol. (Id. at 101:7-13). He also testified that he helped draft the interim protocol. (Id. at 126:8-14).

         35. The DOC's interim hepatitis C protocol is a "prioritization protocol, " which Dr. Noel testified is designed "to identify those with the most serious liver disease and to treat them first, and then, as they're treated, move down the list to the lower priorities, from high priority to lower priority." (Id. at 102:17-103:1; see also Pl.'s Ex. 30 at 2 ("The purpose of this Hepatitis C Protocol is to prioritize candidates for anti-viral treatment.")).

         36. Dr. Noel testified that the protocol does not preclude hepatitis C treatment from any inmate who has hepatitis C. (Noel. Test., Dec. 23, 2015 at 103:3-7).

         37. The protocol defines patients with chronic hepatitis C as those with a documented detectable viral load and includes under this label "all patients on the continuum from no fibrosis -> fibrosis -> compensated cirrhosis -> decompensated cirrhosis." (Pl.'s Ex. 30 at 2).

         38. Patients with "Chronic Hepatitis C (Compensated)" are defined by the protocol as those having the presence of "(1) a previous liver biopsy with fibrosis Metavir stage 4 or Ishak stage 6; (2) a Platelet Count of < 100, 000/mcL; (3) a Hepatitis C Antiviral Long-term Treatment Against Cirrhosis (HALT-C) probability of >60%; and/or (4) no evidence of jaundice, ascites, bleeding esophageal varices, or hepatic encephalopathy." (Pl.'s Ex. 30 at 2).

         39. Patients with "Chronic Hepatitis C (Decompensated)" are defined by the protocol as those that display "evidence of jaundice, ascites, bleeding esophageal varices, or hepatic encephalopathy." (Pl.'s Ex. 30 at 3).

         40. According to the protocol, all patients with chronic hepatitis C will be entered into the Liver Disease Chronic Care Clinic and given a diagnosis of "no cirrhosis, " "compensated cirrhosis, " or "decompensated cirrhosis." (Pl.'s Ex. 30 at 3). Patients with "no cirrhosis" will be seen for a follow-up Clinic appointment every twelve months, patients with "compensated cirrhosis" will be seen for a follow-up every six months, and patients with "decompensated cirrhosis" will be seen for a follow-up every month. (Id. at 4).

         41. Dr. Noel testified that inmates with chronic hepatitis C will be "put into the Chronic Care Clinic, " which he defined as "a tracking system to ensure that they are seen on a regular basis." According to Dr. Noel's testimony, "[t]he vast majority of them will live in general population and just be followed by one of [the] providers on-site, along with an Infectious Control Nurse...." (Noel Test, Dec. 23, 2015, at 104:16-21).

         42. According to Dr. Noel, "[i]f a patient is absolutely 100 percent asymptomatic, . . . they're seen at least once a year." (Id. at 106:1-5). Dr. Noel testified that "[o]nce they start[ ] developing advanced fibrosis or cirrhosis ... it goes to every six months And if they're really sick, where they have decompensated cirrhosis and in end stage liver disease, they're seen every month." (Id. at 106:7-11). According to Dr. Noel, "[c]linicians can see [patients in the Chronic Care Clinic] more often, as they see fit." (Id. at 106:12-14).

         43. According to the interim protocol, "it is most important to identify patients with advanced compensated cirrhosis and early decompensated cirrhosis ... as the highest priority for anti-viral treatment" because "patients with decompensated cirrhosis are at high risk in drug therapy and their treatment options may be limited to liver transplantation." (Pl.'s Ex. 30 at 5, ¶ 3).

         44. According to the interim protocol, "[t]he population most in need of evaluation will be defined as those with platelet counts below 100, 000/mcL and those with HALT-C predicted likelihood of cirrhosis above 60%" and "[t]hese patients will be individually evaluated for prioritization in ascending order of platelet count...." (Pl.'s Ex. 30 at 5, ¶ 5).

         45. The interim protocol states that a patient with either a platelet count below 100, 000/mcL or a HALT-C probability of cirrhosis > 60 percent will have an initial review of his or her medical charts only at his or her home site. (Id. at 6, ¶ 6). If no medical or administrative exclusionary indications to anti-viral treatment are found at the home site, the correctional Health Care Administrator of the home site will forward a Hepatitis C Treatment Referral Form to the Bureau of Health Care Services Infection Control Coordinator for further evaluation, possible recommendations for further testing, and final determination. (Pl.'s Ex. 30 at 6, ¶ 8).

         46. Dr. Noel testified that if inmates have "a platelet count less of a hundred thousand or a HALT-C score of greater than 60 percent, they would be identified as someone who needs further evaluation" and would then be referred to the Central Office's Hepatitis C Review Committee. (Noel Test., Dec. 23, 2015, at 104:23-105:4).

         47. According to the interim protocol, the Hepatitis C Treatment Committee consists of at least four people: Dr. Noel, as the DOC's Bureau of Health Care Services Chief of Clinical Services; the Bureau of Health Care Services Assistant Medical Director; the Statewide Medical Director for Correct Care Solutions; and the Bureau of Health Care Services Infection Control Coordinator. (Pl.'s Ex. 30 at 7, ¶ 1). Dr. Noel testified that the Committee consists of himself, as "the Chief of Clinical Services, the representative from the medical contractor CSS, Infectious Control nurse, the Assistant Medical Director for the DOC, and anyone [the Committee] might invite to participate in any difficult cases." (Noel Test., Dec. 23, 2015 at 129:22-130:1).

         48. The individual's clinical status will be reviewed by the Hepatitis C Treatment Committee for prioritization for treatment with DAA medications. (Pl.'s Ex. 30 at 7, ¶ 1). According to Dr. Noel's testimony, the Review Committee would then "sit down and manually go through the patient's chart with some information provided by the site, possibly, a phone conference with the Site Medical Director" and a "determination then would be made if there was some further testing or further evaluation that needed to be done." (Noel Test, Dec. 23, 2015 at 105:5-11).

         49. According to the protocol, if upon review the Committee determines the patient is a candidate for treatment with DAA medication, an esophageal gastroendoscopy ("EGD") will be approved to evaluate the patient for esophageal varices, (Pl.'s Ex. 30 at 7, ¶ 2). According to Dr. Noel, under the current protocol, the Review Committee makes "a decision of whether or not to refer and schedule a patient for... an EGD, " and, if so referred, the inmate would be sent off site to "have an EGD performed to determine whether or not they have esophageal varices." (Noel Test., Dec. 23, 2015, at 105:12-17).

         50. According to the protocol, if the endoscopy documents the presence of esophageal varices, the patient will be approved for referral to a supervising physician - that is, a physician licensed in Pennsylvania and experienced in the treatment of Hepatitis C utilizing the most current medications who will treat the patient via telemedicine. (pl.'s Ex. 30 at 7, ¶¶ 3, 5). Dr. Noel testified that "[esophageal varices are a direct indication of portal hypertension and correlates with those [patients] with the most severe disease that need ...


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