Bender v. Regier

• Decision Date: 01 October 2004
• Docket Number: No. 03-3529.,03-3529.
• Citation: 385 F.3d 1133
• Parties: Jerry W. BENDER, Plaintiff — Appellee, v. Eugene REGIER, M.D., Defendant — Appellant,
• Court: U.S. Court of Appeals — Eighth Circuit

385 F.3d 1133

Jerry W. BENDER, Plaintiff — Appellee, v. Eugene REGIER, M.D., Defendant — Appellant,

No. 03-3529.

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2004.

Filed: October 1, 2004.

Rehearing and Rehearing En Banc Denied November 4, 2004.^*

Appeal from the United States District Court for the District of South Dakota, Lawrence L. Piersol, J.

James E. Moore, argued, Sioux Falls, SD (Jeffrey L. Bratkiewicz on the brief), for appellant.

Thomas W. Clayton, argued, Sioux Falls, SD, for appellee.

Before LOKEN, Chief Judge, BRIGHT and SMITH, Circuit Judges.

LOKEN, Chief Judge.

In July 1998, while incarcerated in the South Dakota corrections system, Jerry Bender tested positive for the Hepatitis C virus (HCV). In this action under 42 U.S.C. § 1983, Bender alleges that Eugene Regier, a physician employed by the South Dakota Department of Health, violated Bender's Eighth Amendment rights by failing to treat his HCV with interferon before Bender's release from the South Dakota State Penitentiary in February 2003. Regier appeals the denial of his motion for summary judgment on qualified immunity grounds. Concluding that Bender failed to present evidence that Dr. Regier acted with deliberate indifference, the criminal law recklessness necessary to prove an Eighth Amendment violation, we reverse.

I. Background.

Hepatitis C and Interferon. The virus causing Hepatitis C was identified a little more than ten years ago. HCV primarily attacks the liver. More than half of those infected develop chronic liver inflammation and after many years of progressive deterioration some develop cirrhosis and end-stage liver disease, which can be fatal. A well-respected study found that, in the twenty-five years following initial infection, twenty percent of those exposed to HCV develop cirrhosis and three to five percent develop fatal complications such as liver cancer. See Scott A. Allen et al., Hepatitis C Among Offenders, 67 FED. PROBATION 22, 22 (2003). About forty percent of Americans infected with HCV reside in correctional institutions. Id. at 24.

Synthetic interferon was released to the market some ten years ago. Until then, no treatment for the Hepatitis C virus existed. By January 2002, a more effective interferon treatment was available, involving a combination of pegylated interferon (interferon with polyethylene glycol) and ribavarin. Interferon treatment has serious potential side-effects, including nausea, anemia, depression, and decomposition of the liver. Its success rate is relatively low — 15-30% for regular interferon and 40-50% for pegylated interferon treatment. The selection of patients for interferon treatment is highly individualized and depends upon many factors. Treatment is not appropriate for patients with advanced liver problems such as cirrhosis. Treatment for patients with mild liver problems may be safely deferred. Suitability for treatment is determined by measuring the degree of liver inflammation and fibrosis through a liver biopsy. However, even if the appropriate threshold levels of inflammation and fibrosis are present, treatment may be inappropriate if the patient is too young or too old, had a previous organ transplant, or suffers from depression, other mental health problems, heart disease, or untreated chemical dependency. Pegylated interferon treatment involves a series of injections for six months to a year at a cost of $2,000 per month.

Dr. Regier's Treatment of Bender. Dr. Regier practiced family medicine for thirty years before beginning to treat South Dakota inmates in 1996. He began treating Bender for various medical problems in March 2000. Dr. Regier continued to monitor the levels of a liver enzyme known as ALT that indicates liver cell damage, as prison physicians had done since discovering Bender's HCV infection in mid-1998. Regier also ordered blood tests to determine Bender's HCV genotype.

Bender was released from prison in May 2000. But he was reincarcerated in December 2000 after violating his parole by using marijuana and methamphetamine. In March 2001, with Bender's ALT levels continuing to show the presence of HCV, Dr. Regier discussed the possibility of interferon treatment with Bender and referred him to Dr. Robert D. Meyer, a South Dakota gastroenterologist and noted HCV specialist. Dr. Meyer examined Bender in May. Also in May, the prison system changed health care providers, choosing a prison managed health care plan under the direction of a non-practicing physician, Dr. Michael Rost. In August, Dr. Regier requested a "consult with Robert Meyer, MD, in regard to doing liver biopsy." Dr. Meyer met with Bender in September 2001, discussed interferon treatment with him, and arranged for a liver biopsy.

The biopsy was performed in mid-October. Meyer and Regier received copies of the liver pathology report, which stated that Bender's status was "Grade 3" inflammation and "Stage 1" fibrosis. Dr. Regier's November 21, 2001, Progress Note states: "Regarding the hepatitis C situation, the patient has had consultation with Dr. Robert Meyer and we are awaiting word from Dr. Meyer regarding possibly starting this patient on [interferon] treatment." However, Meyer never prescribed or recommended interferon treatment for Bender. Both Meyer and Regier testified that they never discussed interferon treatment for Bender (or any other HCV-infected inmate). Dr. Meyer testified that his only discussion with Dr. Regier after Bender's liver biopsy concerned "when a decision would be made" about interferon treatment for South Dakota inmates generally. He further testified that, in retrospect Bender "was somebody I would treat" because of his Grade 3 inflammation and Stage 1 fibrosis levels. After November 2001, Dr. Regier continued to treat Bender on a regular basis but did not prescribe or order interferon treatment.

Who Was in Charge? Dr. Meyer testified that he did not have the authority to schedule an inmate for interferon treatment without approval by "someone at the South Dakota State Penitentiary." But the director of the health care plan, Dr. Rost, testified that once an inmate with HCV was referred to a treating specialist, such as Dr. Meyer, "[i]f he decided the person needed a liver biopsy, he doesn't have to call me. If he decided the person needed interferon, he doesn't have to call us. He just writes the order for it." On the other hand, Rost explained, Dr. Regier was a staff physician, not a HCV specialist. Therefore, "if Dr. Regier wanted to use interferon, he would request that through my office." In response to a question by Bender's attorney, Rost testified:

Q. So your understanding is Dr. Meyer would have unfettered freedom to order interferon treatment for a prisoner if he was referred by you for examining a prisoner for hepatitis C?

A. I would have no problem. If the doctor had ordered that material for someone, we would have filled the prescription.

At his deposition, Dr. Regier was asked, "Why were you awaiting word from Dr. Meyer as to whether or when pegylated interferon would be available to him?" Regier responded: "At that time it was not known by me whether or not treating patients with interferon was a possibility and who would qualify for it since I did not have a protocol in my hands from the South Dakota Department of Health." The subject was again addressed a short time later in the deposition:

Q. Well, is it fair to say you never contacted Dr. Meyer and said, "Go ahead and order it and start the [interferon] treatments with Mr. Schnetter" [another HCV-infected inmate]?

A. That would be correct. I never did....

Q. Why not?

A. As I stated before, I did not have a protocol in place and it was not a medication that I felt I had the privilege of ordering without getting approval from the managed care people....

The Department of Health Develops a Protocol. At a meeting early in 2002, representatives of the Department of Corrections and the Department of Health noted the increase in HCV-infected inmates and asked Dr. Rost to develop a protocol that would determine, in Dr. Rost's words, "what the criteria should be ... that would render someone eligible for treatment and then what were all the complicating issues that might interfere with the success of the treatment and/or the ability of the inmate to complete the process." A committee was formed and contacted several midwestern States that had developed HCV treatment protocols. After visiting a Minnesota prison, the committee determined that the Minnesota protocol was a suitable model and then adapted that model to South Dakota prison procedures.

The South Dakota Department of Health adopted its Correctional Health Care Protocol for the Treatment of Offenders Infected with the Hepatitis C Virus in September 2002. Bender was still incarcerated, but he was ineligible for interferon treatment under the protocol's eligibility criteria...