Orr v. Shicker
| Decision Date | 23 March 2020 |
| Docket Number | 19-1387 & 19-1732,Nos. 19-1380,s. 19-1380 |
| Citation | 953 F.3d 490 |
| Parties | Jeffrey ORR, et al. Plaintiffs-Appellees, v. Louis SHICKER, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
H. Kent Heller, Attorney, Heller, Holmes & Associates, Mattoon, IL, for Plaintiff-Appellee.
Kaitlyn Noel Chenevert, Attorney, Office of the Attorney General, Chicago, IL, Lisa A. Cook, Office of the Attorney General, Springfield, IL, for Defendant-Appellant.
Before Wood, Chief Judge, and Bauer and Brennan, Circuit Judges.
Plaintiffs are current and former inmates of the Illinois Department of Corrections (IDOC) who have been diagnosed with hepatitis C. They filed this lawsuit over ten years ago after fruitless efforts to receive treatment for their disease while incarcerated. Invoking 42 U.S.C. § 1983, their complaint alleges that the diagnostic and treatment protocols for IDOC inmates with hepatitis C violate the Eighth and Fourteenth Amendments. After many years, many motions, and the consolidation of many cases, the district court granted class certification and preliminary injunctive relief. The defendants—IDOC, Wexford Health Sources, Inc., and several doctors—asked us to accept an appeal from that decision under Federal Rule of Civil Procedure 23(f). We agreed to do so and now reverse the grant of class certification and vacate the injunction.
Hepatitis C is a disease caused by the hepatitis C virus (HCV). Those who contract HCV may suffer inflammation of the liver, which can impair the functioning of that vital organ. HCV has six genotypes, the first of which predominates in the United States.
A hepatitis C infection is categorized as either acute or chronic. In the acute phase, the infection does not necessarily result in any noticeable symptoms, and some people naturally clear the virus from their bodies. Others develop a chronic infection. Persons suffering from a chronic hepatitis C infection may develop fibrosis—that is, the build-up of scar tissue in the liver—which can lead to cirrhosis, a severe condition causing the affected areas of the liver to stop functioning. Cirrhosis is irreversible. The rate of fibrosis progression is not the same in all HCV patients.
Several tests are available to determine the degree of fibrosis in a liver. One test, a FibroScan, uses ultrasound technology. This test results in several possible scores: F0 (no fibrosis), F1 (mild fibrosis), F2 (moderate fibrosis), F3 (advanced fibrosis), and F4 (cirrhosis ). Another test is the AST (which stands for the enzyme aspartate aminotransferase ) to Platelet Ratio Index, or APRI. The APRI is calculated by dividing the patient’s AST level by her platelet count.
Plaintiffs have all been diagnosed with hepatitis C. They filed this lawsuit in 2008, alleging that IDOC’s medical directors and Wexford, a private company that administers healthcare to inmates in IDOC’s custody, were deliberately indifferent to their medical conditions when they chose not to provide necessary treatment. Plaintiffs sought injunctive relief and class certification. In response to a motion from the defendants, the district court struck these requests.
In April 2009, Plaintiffs filed amended motions for class certification and injunctive relief; the district court denied those motions in November 2009. Two years later, the court dismissed Wexford from the suit with prejudice. In 2013, the court consolidated several related cases. The case dragged along until, in January 2016, Plaintiffs moved for reconsideration of the denial of class certification. The district court denied their motion, but it indicated a willingness to certify a class and so granted them leave to renew their request. The court noted that since the case was filed in 2008, there had been significant developments in the treatment of hepatitis C. In the beginning, the disease had virtually no cure free from serious risks and extensive costs. New treatments that were both significantly more effective and lower in cost had since become available.
In November 2016, Plaintiffs filed an amended complaint, naming IDOC, Wexford (again), IDOC’s medical director (initially Dr. Michael Puisis, who was later succeeded by Dr. Louis Shicker and then Dr. Steven Meeks), and several other doctors as defendants. As before, they alleged that the defendants were deliberately indifferent to their medical needs in violation of the Eighth and Fourteenth Amendments. They also filed an amended motion for class certification and a motion for injunctive relief.
In April 2017, the district court entered an order summarizing the current status of the case. The order reviewed the testimony given by witnesses and experts in 2016 and noted that there was "no dispute that Hep C is a serious medical condition or that it is present in significant numbers in the IDOC prison population." The court nonetheless recognized a "sharp dispute as to when treatment should begin." At the time of the April 2017 order, IDOC’s policy was to begin treatment for inmates once their FibroScan score reached F3. Plaintiffs argued that treatment should begin as soon as possible.
The district court also found that "all inmates should be tested for Hepatitis C upon admission" to IDOC. It determined that inmates "who test positively and have at least one year to serve on their sentence from admission to release date should be offered treatment with direct acting antiviral drugs as soon as possible after diagnosis, and, in any event, no later [than] testing at a fibrosis level of 2." Nevertheless, the district court concluded that its findings were "too general to meet the specific requirements of a preliminary injunction order" and that it needed additional information about Plaintiffs’ "fibrosis levels, contributing conditions, sentence length, etc."
In January 2018, Plaintiffs filed still another motion for injunctive relief; the district court scheduled an evidentiary hearing for January 2019. (The court also consolidated this case with three others in which Wexford remained a defendant.) In early January 2019, IDOC implemented an updated protocol for treating inmates with hepatitis C ("the 2019 Protocol").
Under the 2019 Protocol, IDOC contracts with the University of Illinois – Chicago ("UIC") for treatment of hepatitis C patients using a telemedicine system. The primary care physicians at each IDOC facility perform initial testing to ascertain which inmates are eligible for treatment at UIC. The UIC specialists then "determine the specific regimen for patients found ready for HCV treatment."
When an inmate enters IDOC’s custody, he receives an HCV antibody test at the receiving and classification prison, unless he declines testing. If the test shows that the inmate is HCV positive and the inmate wants to be evaluated for possible treatment, further testing is performed at the prison to which the inmate is transferred, in order to "determine if the patient has chronic HCV disease or [if] the HCV infection has resolved (which can happen in about 15-25% [of cases] )." If chronic HCV is present, IDOC physicians evaluate "absolute exclusion criteria"—in other words, they determine whether the inmate has less than 12 months remaining on his sentence, has refused treatment, has unstable medical or psychiatric conditions, or other contraindications to HCV therapy.
If no exclusionary factors are present, the inmate undergoes further tests, including a FibroScan and APRI calculation, to determine the severity of the liver disease, although the protocol states that a FibroScan should not be done for inmates with certain health conditions. Inmates with a FibroScan of F2 or less are vaccinated against hepatitis A and B, where appropriate. Inmates with a FibroScan of F2 and whose APRI score is greater than or equal to .7 are referred to UIC. Inmates with FibroScan results of F3 or F4 undergo further testing before referral to UIC.
The 2019 Protocol also establishes priorities for the treatment of HCV-positive inmates. IDOC recognized that "[a]lthough nearly all patients with chronic hepatitis C infection are candidates for HCV therapy, there may be more urgency to treat certain patients first." Under the 2019 Protocol, priority level 1 for HCV treatment includes inmates with any of the following: cirrhosis ; a comorbid medical condition associated with HCV; a Child Turcotte Pugh score of greater than or equal to 7; or newly incarcerated inmates who are already receiving HCV treatment. Priority level 2a includes inmates with FibroScan results of F3 or F4, an APRI score of greater than or equal to 2, Metavir Stage 3 or 4, a hepatitis B co-infection, or HIV. Priority level 2b includes inmates with a FibroScan result of F2 and an APRI score of greater than or equal to .7. Priority level 3 includes inmates with a FibroScan result of F0 or F1, and an APRI score of less than .7. The level 3 inmates are enrolled in the Hepatitis C Chronic Clinic, where they are seen every 12 months for (1) a targeted physical and other lab tests, (2) a FibroScan, (3) the calculation of their APRI, and (4) HCV education.
If an inmate is referred to UIC, all lab work and necessary forms are completed at the prison and forwarded to UIC. After the UIC practitioner sees the inmate, prescriptions or orders from UIC are faxed or forwarded to the prison "for medication changes, lab tests to be ordered, studies to be obtained, or special requests for the IDOC medical team to address."
The 2019 Protocol also requires that IDOC’s medical director receive a monthly report of inmates determined to be ineligible for treatment and the reason why. It requires notification of the medical director when there are inmates who are eligible for treatment but who "are having significant delays ... that could impact their ability to get treated while they are incarcerated."
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