Update on Mumia’s Hep C Lawsuit

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— Rachel Wolkenstein, November 28, 2016

On August 31, 2016, Federal district court judge Robert Mariani denied Mumia Abu-Jamal’s motion for a preliminary injunction that would have compelled the Pennsylvania Department of Corrections (DOC) to provide him with the direct-acting antiviral drugs capable of curing his chronic hepatitis C and his secondary symptoms, including his continuing painful and often debilitating skin problems.

The court’s denial was based on Judge Mariani’s conclusion that the DOC defendants were “not the proper parties to whom an injunction could issue.” At the same time, the court found as a matter of law that the DOC’s hepatitis C treatment policy violated the Eighth Amendment.

Judge Mariani ruled, in accord with the evidence presented by Mumia during the three-day evidentiary hearing held in December 2015, that “the standard of care with respect to the treatment of chronic hepatitis C is the administration of the newly-developed DAA [direct-acting antiviral] medications.” This standard of care calls for treatment of anyone who has active hepatitis C, regardless of disease stage.

The court found as a matter of law the DOC’s hepatitis C treatment protocol “presents deliberate indifference to the known risks which follow from the untreated hepatitis C” in violation of the Eighth Amendment. The protocol “prolong[s] the suffering of those who have been diagnosed with chronic hepatitis C and allow[s] the progression of the disease to accelerate so that it presents a greater threat of cirrhosis, hepatocellular carcinoma [i.e., liver cancer], and death of the inmate with such disease.”

Mumia’s attorneys, Robert Boyle, Esq., and Bret Grote, Esq., of the Abolitionist Law Center, filed objections to Judge Mariani’s conclusion that the “wrong” DOC defendants were named, stating the authority of the SCI Mahanoy Superintendent for the care of inmates and that the DOC Hep C Committee did not exist and wasn’t known to Mumia and his lawyers until the start of the hearing in late December.

On September 30, 2016, Mumia filed a new lawsuit citing the decision of Judge Mariani that the DOC protocol for hep C violates the Eighth Amendment; that the standard of care is to provide the new antivirals to anyone with active hep C, regardless of the progress of liver disease; and a medical update of Mumia showing that his disease has progressed and the failure of treatment by the DOC. The action was brought against the DOC defendants stated by Judge Mariani to be the “proper parties,” including DOC Commissioner John Wetzel, the DOC Chronic Care Committee, and Correct Care Solutions [the private company hired by the DOC to provide medical care to prisoners].

On November 18, the DOC filed objections to the new action, with a motion to dismiss and a motion to deny the request for a preliminary injunction. The DOC objects on technical grounds that the court should dismiss this as a “second action.” The DOC’s central challenge is to Judge Mariani’s finding on the Eighth Amendment violations of the DOC in not treating those with active hep C. The DOC insists, “There is no clearly established right to receive immediate treatment with the direct acting anti-viral medication, rather than monitoring and treatment under a prioritizing protocol. Because it is clear, based on the record before this Court in Mumia I, that Plaintiff has received extensive testing and continues to be monitored, he cannot establish deliberate indifference by the Corrections Defendants.”

The DOC revised its hepatitis C protocol on November 7, 2016, to “prioritize treatment protocol.” The “new” protocol merely categorizes hep C sufferers. Nowhere is there a timetable to treat anyone.

The “new” protocol includes lengthy lists of testing and screening of prisoners by the Chronic Care Clinic, stating that it is now following the Federal Bureau of Prisons Priority Criteria for evaluation for treatment, changing the evaluation scores. This continues the medieval evaluation that “all patients with cirrhosis will be scheduled for a baseline EGD to evaluate for esophageal varicies [bleeding from the throat].” In other words, this “revised protocol” is functionally the same as the hep C protocol that Judge Mariani rejected as unconstitutional under the Eighth Amendment.

The DOC, an agency of the Commonwealth of Pennsylvania, rejects the medically universally accepted standard of care for all those with active hepatitis C of treatment with the new antivirals, and its constitutional obligation under the Eighth Amendment to provide health care to prisoners. The DOC continues the barbaric as well as unconstitutional practice of refusing treatment until the prisoner is at the cusp of death from liver disease.

Under both the old and “new” protocol, the DOC admits that Mumia is in the “high priority” category for treatment and that his disease is progressing. In rejecting treatment to Mumia, and to the other 6,000 prisoners in the state with chronic hepatitis C, the DOC argues the high cost of the new antivirals. This is currently somewhere between $50,000 and $100,000 per prisoner, depending on what “deal” the DOC can make with the drug company. Mumia’s hospitalizations last year for secondary symptoms of his hep C cost over $150,000, substantially more than the hepatitis C treatment that would cure his liver disease and end his painful skin rash.

Tens of thousands of dollars is being spent by the DOC to “prioritize” and repeatedly test prisoners to determine just how near a prisoner is to the full progression of liver disease and cancer before being considered for treatment. The DOC budget request for 2017 states it treated 50 hep C patients in 2016. In fiscal 2017, it budgets treating 50 more. At this rate it would take 100 years to treat the prisoners who today have chronic hep C.

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