Barfield v. Cook
| Decision Date | 06 August 2019 |
| Docket Number | No. 3:18-cv-1198 (MPS),3:18-cv-1198 (MPS) |
| Court | U.S. District Court — District of Connecticut |
| Parties | ROBERT BARFIELD, ET AL Plaintiffs, v. ROLLIN COOK in his official capacity as Commissioner of the Connecticut Department of Correction Defendant. |
Plaintiffs Robert Barfield, John Knapp, Jason Barberi, and Darnell Tatem (together, "named Plaintiffs" or "Plaintiffs") bring this putative class action lawsuit regarding medical care for incarcerated people infected with Hepatitis C against Rollin Cook in his official capacity ("Defendant") as Commissioner of the Connecticut Department of Correction ("CT DOC"). Following the Court's ruling on the Motion to Dismiss, the only claim remaining is Plaintiffs' claim for various forms of injunctive relief against Cook in his official capacity for deliberate indifference to medical needs in violation of the Eighth Amendment under 42 U.S.C. § 1983.1Plaintiffs move to certify a class consisting of "all people who are or will be prisoners in the custody of the [CT DOC], and who have or will have Hepatitis C while in custody and have not yet been cured." ECF No. 32 at 1. For the reasons discussed below, this motion is GRANTED to the extent set forth in this ruling.
These facts are drawn from the operative complaint, the parties' briefs on class certification, and the accompanying affidavits and exhibits.
Hepatitis C is a blood-borne disease caused by the Hepatitis C Virus ("HCV"). ECF No. 35 at ¶ 25. HCV causes inflammation that damages liver cells, and is a leading cause of liver disease and liver transplants. Id. It is transmitted through contact with infected blood and can be transmitted through intravenous drug use, tattooing, blood transfusions, and sexual activity. Id. at ¶ 26. HCV can be either acute or chronic. Id. at ¶ 27. Acute HCV clears itself from the blood stream within six months of exposure. Id. Chronic HCV is a long-term illness that is defined as having a detectable HCV viral level in the blood six months after exposure. Id. People with chronic HCV develop fibrosis of the liver, which is a process that replaces healthy liver tissue with scarring, thereby reducing liver function. Id. at ¶ 29. When scar tissue takes over most of the liver, it is called cirrhosis. Id. at ¶ 30. Cirrhosis may not be reversible and can cause complications even after the HCV is treated. Id. at ¶ 33. Fibrosis can also lead to liver cancer. Id. at ¶ 29. In addition, chronic HCV can cause kidney disease, internal bleeding, and a host of other serious medical issues. Id. at ¶¶ 28-31, 35. It can also cause death. Id. at ¶ 31.
Approximately 2.7 to 3.9 million Americans have chronic HCV and approximately 19,000 people die of HCV-caused liver disease each year in the United States. Id. at ¶¶ 39, 42. The prevalence of HCV in prison is much higher than in the general population. Id. at ¶ 44. It is not clear how many people in the CT DOC system have HCV, but a recent study shows that 10-12 percent of the population at the New Haven Correctional Center had HCV in 2015. Id. at ¶¶ 45, 55, 58.
In the past, the standard treatment for HCV, which included the use of interferon and ribavirin medications, had long treatment durations, failed to cure most patients, and was associated with many side effects. Id. at ¶ 62. In 2011, however, the Food and Drug Administration ("FDA") began approving new oral medications called direct-acting antiviral drugs ("DAAs"). Id. at ¶ 63.While the DAAs were initially designed to work with the old treatment regimen, in 2013 the FDA began to approve DAAs that can be taken alone. Id. DAAs work more quickly, cause fewer side effects, and treat chronic HCV more effectively than the old treatment; in fact, 90 to 95 percent of HCV patients treated with DAAs are cured, whereas the old treatment regime cured only roughly one-third of patients. Id. at ¶¶ 63-65.2
The American Association for the Study of Liver Diseases ("AASLD") and the Infectious Disease Society of America ("IDSA") set forth the medical standard of care for the treatment of HCV. Id. at ¶¶ 67-68. The IDSA/AASLD guidelines recommend that all people with risk factors for HCV be tested, including both those born between 1945 and 1965 and all those who were ever incarcerated. Id. at ¶ 75. The guidelines also recommend immediate treatment with DAAdrugs for all people with chronic HCV. Id. at ¶ 69. The Centers for Disease Control and Prevention ("CDC") encourages healthcare professionals to follow this standard of care. Id. at ¶ 67. The Medicaid guidelines are consistent with this standard of care, as they eliminated any requirement that there be evidence of hepatic fibrosis before covering DAA treatments. Id. at ¶ 71.
The benefits of immediate treatment include immediate decrease in liver inflammation, reduction in the rate of progression of liver fibrosis, reduction in the likelihood of the manifestations of cirrhosis and associated complications, a 70 percent reduction in the risk of liver cancer, a 90 percent reduction in the risk of liver-related mortality, and a dramatic improvement in quality of life. Id. at ¶ 73. Delay in treatment increases the risk that treatment will be ineffective. Id. at ¶ 74.
In 1997, CT DOC and the University of Connecticut Health Center ("UCHC") entered into a Memorandum of Agreement ("MOA") for the provision of health care to offenders through Correctional Managed Health Care ("CMHC"). Id. at ¶ 20. This MOA remained in place until July 1, 2018, when Semple terminated the relationship between DOC and UCHC and brought all health care functions "in house, to be controlled specifically by the DOC." Id. at ¶¶ 20-21. It provided that CMHC would implement clinical practice guidelines and Medicaid guidelines. Id. at ¶ 70. CMHC's policy governing the treatment of prisoners with HCV ("Policy G 2.04") was promulgated on December 10, 2002, and revised on May 30, 2005, December 21, 2010, February 1, 2012, July 31, 2013, June 30, 2015, and June 30, 2016. Id. at ¶ 91; ECF No. 35-1 (Policy G 2.04). The policy created a special board of infectious disease experts who evaluate all requests for treatment of the Hepatitis C infection in CT DOC facilities. ECF No. 35at ¶ 93. It also created a Hepatitis C Utilization Review Board ("HepCURB") to review all requests for treatment. Id. at ¶ 95. The policy details the steps that physicians and the HepCURB should take when working with patients who have HCV. Id. at ¶¶ 97-99, 102, 106. Policy G 2.04 provides that, "in general," HepCURB will follow the specific recommendations of the AASLD and IDSA, which both recommend immediate treatment with DAAs for all people with chronic HCV; at the same time, the policy states that "they will not directly provide specific anti-viral drugs for Hepatitis C." Id. at ¶¶ 69, 95-96. CT DOC did not release any new guidelines for HCV treatment following the July 1, 2018 decision by Semple to change the management of health care services for DOC inmates. Id. at ¶ 104.
Plaintiffs allege that "prioritization for the DAA treatment as stated in Policy G 2.04, which places advanced HCV cases of hepatic fibrosis and liver transplant candidates at the top of the line is not in line with the standard of care" as"[d]elaying treatment until a patient is extremely sick has the perverse effect of withholding treatment from the patients who could benefit from it most, because the treatment is less effective for patients with the most advanced stages of the disease." Id. at ¶ 105. Plaintiffs allege that even if the policy was adequate, CT DOC does not follow the policy and, in practice, delays treatment for virtually all prisoners with HCV (regardless of disease progression) until the prisoner is released from prison or dies. Id. at ¶¶ 100, 105, 108-09, 113, 115. Plaintiffs further allege that the policy does not address liver transplantation, the only cure for people with decompensated cirrhosis, and does not address the need for liver cancer screening, "which is standard medical practice once individuals have progressed to advanced fibrosis or cirrhosis." Id. at ¶¶ 117-18.
Robert Barfield has been incarcerated since 1994 and was transferred to the custody of the CT DOC in August 2012. Id. at ¶¶ 174-75. He was diagnosed with Hepatitis C in 2006 while he was incarcerated in Nevada, id. at ¶ 177, and has chronic HCV, id. at ¶ 179. While in the custody of the DOC, Barfield continually requested treatment for HCV, but was told that he did not meet the requirements for treatment and that he was not sick enough to be treated. Id. at ¶¶ 184-85. He filed numerous grievances complaining of his symptoms and requesting treatment, but all were denied. Id. at ¶ 186. CT DOC did not comply with Policy G 2.04 in Barfield's case, id. at ¶¶ 187, 191, 206, and he developed a number of medical issues that can be caused by HCV, id. at ¶¶ 199, 203, 208, 221. On April 13, 2017, Dr. Omprakash Pillai received a test showing that Barfield had a viral load of 4,567,000 in his blood plasma; a viral load of more than 800,000 is considered high, but Barfield was told that his viral load was normal. Id. at ¶ 223. His viral load continued to be very high in subsequent tests. Id. at ¶¶ 224, 226. Barfield specifically requested DAAs on more than one occasion, but was denied access to them. Id. at ¶¶ 218-19, 244. On June 1, 2017, Barfield's medical record indicates that a FibroScan - an ultrasound that determines the amount of fibrosis in a liver - would be requested for him. Id. at ¶¶ 81, 227. He had the liver scan approximately nine months later on March 12, 2018. Id. at ¶ 235. The liver scan showed that he had at least an 85 percent probability of significant fibrosis. Id. at ¶ 236. After filing several requests to obtain information about his condition, id. at ¶¶ 237-39, Barfield was informed on June 14, 2018, that he suffered from...
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