Volume 29 | Issue 2
SUMMER 2020

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Foreword
The Annals of Health Law and Life Sciences Editorial Staff is proud to
present our Summer 2020 Issue. The issue features articles deriving
from our thirteenth annual Annals of Health Law and Life Sciences
Symposium: Addressing the Health Care Needs of Justice-Involved
Populations. The symposium brought together scholars and
practitioners to explore the legal barriers that justice-involved
populations face in accessing health care and how those barriers can
be alleviated. Each author published in this edition highlights a specific
area of the panel topics presented at the Symposium. On behalf of the
entire Annals of Health Law and Life Sciences Editorial Staff, I would
like to thank our authors for both presenting at Symposium and
contributing their knowledge, research, and talent to this outstanding
issue.
The Symposium was organized into three separate panels following a
special address by Cook County Sheriff’s Thomas Dart. Each panel
was tasked to discuss different perspectives of health care issues
relating to justice-involved populations. The first panel was
Preventing Contact with the Criminal Justice System through
Increasing Access to Health Care, which focused on current health
care measures preventing individuals from encountering the criminal
system. The second panel was Increasing Access to Treatment for
Incarcerated Populations, which discussed the legal support and
medical treatment of justice-involved populations during the duration
of their involvement with the U.S. justice system. The last panel was
Constitutional Issues Relating to the Medical Treatment of JusticeInvolved Populations, which addressed Eighth Amendment and
Fourteenth Amendment issues regarding access to medical treatment
to medical treatment of justice-involved populations.
I would like to express my sincerest gratitude to my colleagues on the
Executive Board: Christina Perez-Tineo, Alesandra Hlaing, Nicolette
Taber, Raquel Boton, Hannah Lehmann, and Jacalyn Smith.
Additionally, I would like to thank the outstanding efforts of our
Senior Editors: Haley Comella, Jan Dervish, Elizabeth Heredia, and
Rachel Kemel. Finally, I would like to thank the wonderful faculty at
i

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the Beazley Institute for Health Law and Policy for their continued
support of our endeavors. The success of the Symposium and Summer
2020 Issue would not have been possible without the hard work and
dedication of everyone involved.
I am proud to present the Summer 2020 issue of Annals of Health Law
and Life Sciences.
Sincerely,
Isabella Mancini
Editor-in-Chief
Annals of Health Law and Life Sciences

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Hepatitis C Litigation: Healing Inmates as a Public
Health Strategy
Robert Katz*
Hepatitis C virus (HCV) is the most lethal infectious disease in the United
States. HCV-related deaths exceed the total number of deaths from 60 other
infectious diseases combined, including HIV and tuberculosis.1 HCV can
lead to liver failure, liver cancer, and other complications.2 Around 3.5
million people—an estimated 1 percent of the U.S. population—are infected
with HCV.3 But HCV affects population groups in disparate numbers.
HCV is especially prevalent in America’s prisons, as approximately 20
percent of incarcerated persons are infected.4 Approximately 30 percent of
all HCV-infected persons spend at least part of the year in a correctional
institution.5 They are not only at risk of transmitting the disease to one
another: more than 90 percent of infected inmates are eventually released and
are at risk of transmitting the disease among the general population.6
HCV can be cured through treatment with direct-acting anti-viral drugs
* The author serves as co-counsel in Stafford v. Carter, 117CV00289JMSMJD, 2018 WL
4361639 (S.D. Ind. Sept. 13, 2018). (Thanks to Michael Ray Stafford, Charles Smith,
Douglas Smith, Mark W. Sniderman, Peter Erlinder, Peter H. Schwartz, Raj Vuppalanchi,
Suthat Liangpunsakul, Diane J. Klein, the Beazley Institute for Health Law and Policy, and
the student editors of the Annals of Health Law. This article is dedicated to the memory of
Eleanor Kinney, who believed in the power of law to improve the health of the most
vulnerable.) See Robert Katz, A Tribute to Eleanor D. Kinney, 17 Ind. Health L. Rev. 1, 1
(2020).
1. AM. ASS’N FOR THE STUDY OF LIVER DISEASES & INFECTIOUS DISEASES SOCIETY OF
AM., HCV Testing and Treatment in Correctional Settings, HCVGUIDELINES.ORG (Nov. 6,
2019), www.hcvguidelines.org/unique-populations/correctional [hereinafter HCV Testing
and Treatment in Correctional Settings]; Hepatitis C Kills More Americans than Any Other
Infectious Disease, CTR. FOR DISEASE CONTROL & PREVENTION
http://www.cdc.gov/media/releases/2016/p0504-hepc-mortality.html (last visited Apr. 11,
2020). These numbers were compiled prior to the COVID-19 pandemic.
2. Stafford v. Carter, 2018 WL 4361639, at *20 (S.D. Ind. Sept. 13, 2018).
3. Ann Pietrangelo, Hepatitis C by the Numbers: Facts, Statistics, and You, HEALTHLINE
https://www.healthline.com/health/hepatitis-c/facts-statistics-infographic#hepatitis-types
(last visited April 6, 2020); Sanjiv Chopra, Patient Education: Hepatitis C (Beyond the
Basics), UPTODATE.COM, https://www.uptodate.com/contents/hepatitis-c-beyond-the-basics
(last visited April 11, 2020).
4. HCV Testing and Treatment in Correctional Settings, supra note 1.
5. Id.
6. Id.

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known as DAAs.7 These drugs are costly—an estimated $25,000 per course
of treatment.8 Their high price, naturally, is a major obstacle to wider
treatment.9 For example, the Indiana Department of Correction (IDOC)
estimates that it would cost between $87 million to $100 million to treat all
current inmates with chronic HCV.10 This sum could consume IDOC’s entire
medical budget for fiscal year 2019.11 Unsurprisingly, most prison systems
are loath to treat infected inmates. In 2015, fewer than 1 percent of Indiana’s
infected inmates were treated.12 IDOC treated only 41 of approximately
3,500 infected inmates as of January 2018.13 The Florida Department of
Corrections (FDC) treated only thirteen of approximately 7,000 infected
inmates as of November 2017.14
Is a prison system’s refusal to treat this disease unconstitutional? In recent
years, federal class action lawsuits filed around the country have challenged
state HCV treatment policies that restrict or deny treatment to HCV-infected
inmates. Two of these lawsuits have prevailed on the merits: Hoffer v. Inch15
and Stafford v. Carter,16 which challenged FDC’s and IDOC’s policies,
respectively.17 Stafford’s certified class consists of “all current and future

7.
8.
9.

Stafford, 2018 WL 4361639, at *9.
Id.
NATIONAL ACADEMIES OF SCIENCES, ENGINEERING, AND MEDICINE, A NATIONAL
STRATEGY FOR THE ELIMINATION OF HEPATITIS B AND C. 1, 6 (Strom BL & Buckley GL
2017).
10. Dave Stafford, Ruling: DOC Violating Rights of Inmates with Hepatitis, THE IND.
LAWYER (Sept. 13, 2018), http://www.theindianalawyer.com/articles/48119-ruling-docviolating-rights-of-inmates-with-hepatitis.
11. Stafford, 2018 WL 4361639, at *13.
12. Adam L. Beckman et al., New Hepatitis C Drugs Are Very Costly and Unavailable
to Many State Prisoners, 35 HEALTH AFF. 1893, 1896 (Oct. 2016).
13. See generally Stafford, 2018 WL 4361639, at *10.
14. Hoffer v. Jones, 290 F. Supp. 3d 1292, 1298 (N.D. Fla. 2017).
15. See generally Hoffer v. Inch, 382 F. Supp. 3d 1288 (N.D. Fla. 2019) (Summary
judgment partially granted; motion for permanent injunction was approved).
16. See generally Stafford, 2018 WL 4361639 (plaintiffs moved for summary judgment
on their Eighth Amendment claim, and defendants cross-moved for summary judgment on
all claims. Court granted plaintiffs’ motion as to liability on the Eighth Amendment claim
and denied defendants’ cross-motion on all claims).
17. See generally id.; see generally Inch, 382 F. Supp. 3d 1288. Similar suits have
failed on the merits in Kentucky, North Carolina, and Tennessee. See Woodcock v. Correct
Care Sols., LLC, No. 3:16-CV-00096-GFVT, 2020 U.S. Dist. Lexis 17793 (E.D. Ky. Feb.
04, 2020) (holding that Kentucky state prison’s HCV treatment policy does not violate classaction plaintiffs’ Eighth Amendment rights); Atkins v. Parker, 412 F.Supp.3d 761, 777
(M.D. Tenn. 2019) (holding that Tennessee state prison’s HCV treatment policy does not
violate class-action plaintiffs’ Eighth Amendment rights). See also Buffkin v. Hooks, 1:18CV-502, 2019 WL 1282785 (M.D.N.C. Mar. 20, 2019) (denying inmates’ motion for a
preliminary injunction where they failed to show that the Eighth Amendment challenge to
North Carolina’s HCV treatment policy was likely to succeed on the merits).

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prisoners in IDOC custody who have been diagnosed, or will be diagnosed,
with chronic HCV, and for whom treatment with DAA medication is not
medically contraindicated.”18 Hoffer’s class is similarly defined.19
Stafford and Hoffer each challenge a state’s HCV treatment policy on
grounds that withholding treatment with DAAs violates the infected inmate’s
Eighth Amendment rights.20 Each court granted Plaintiffs’ motion for
summary judgment on their Eighth Amendment claim.21 In Stafford, the court
approved a settlement agreement in which IDOC undertook to treat all class
members, thereby avoiding the need for injunctive relief.22 In Hoffer, the
court has issued two injunctions requiring FDC to commence treatment of
class members, and FDC has appealed both.23
Several other state prison systems have settled class action lawsuits by
agreeing to expand treatment to some or all infected inmates. These include
Colorado,24 Connecticut,25 Massachusetts,26 Minnesota,27 Pennsylvania,28and
South Carolina.29 More class action lawsuits are pending in Maine,30

18. Stafford, 2018 WL 4361639, at *11.
19. Jones, 290 F. Supp. 3d at 1296.
20. See generally Stafford, 2018 WL 4361639; See generally Inch, 382 F. Supp. 3d
1288.
21. Stafford, 2018 WL 4361639, at *11; Jones, 290 F. Supp. 3d at 1304.
22. Stafford, 2018 WL 4361639, at *3.
23. Jones, 290 F.Supp.3d at 1306; Hoffer, 382 F.Supp.3d at 1315.
24. Kirk Mitchell, Colorado Approves $41 Million Settlement Ensuring Care of 2,200
State Prisoners with Hepatitis C, THE DENVER POST (Sept. 12, 2018, 4:46 PM),
http://www.denverpost.com/2018/09/12/colorado-settlement-prisoner-care-for-hepatitis-c.
25. Proposed Settlement Agreement and Release at 7–8, Barfield v. Cook , 3:18-CV1198-MPS (D. Conn. 2020).
26. Fowler v. Turco, No. 1:15CV12298-NMG (D. Mass. Mar. 9, 2018).
27. Minnesota Prisoners Win Access to New Hepatitis C Medications, PRISON LEGAL
NEWS (July 2, 2019), www.prisonlegalnews.org/news/2019/jul/2/minnesota-prisoners-winaccess-new-hepatitis-c-medications.
28. Bobby Allyn, Pa. Department of Corrections to Provide Costly Hepatitis C
Treatment to Nearly 5,000 Inmates, WHYY (Nov. 19, 2018), www.whyy.org/articles/padepartment-of-corrections-to-provide-cost ly-hepatitis-c-treatment-to-nearly-5000-inmates/.
29. Geissler v. Stirling, No. 4:17-CV-01746-MBS, 2019 WL 3561875, at *6 (D. S.C.
Aug. 5, 2019) (approving settlement agreement).
30. NEWS DESK, Lawsuit Claims Prison Officials Aren’t Treating Hepatitis C, WABI5
(Jun. 28, 2019, 11:24 AM), https://www.wabi.tv/content/news/Lawsuit-claims-prisonofficials-arent-treating-hepatitis-C-511951751.html.

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Missouri,31 Texas,32 and Vermont.33 Several states are expanding treatment
outside the context of a class action lawsuit, including California,34
Louisiana,35 Michigan,36 New Mexico,37 Washington,38 and Wyoming.39
These lawsuits aim directly at improving the health of infected inmates by
vindicating their Eighth Amendment rights. But it is not only inmates who
benefit. Their treatment confers broad health benefits on uninfected third
parties and the population at large by reducing the risk of disease
transmission.
Just as prisons have an outsized role in spreading the HCV epidemic,
prisons can play an outsized role in combating it.40 Public health experts
argue that the criminal justice system “presents a critical opportunity to have
a substantial effect on this epidemic,”41 while “failure to scale up treatment
31. ASSOCIATED PRESS, ACLU Seeks to Force Missouri to Treat Inmates’ Hepatitis C,
ST. LOUIS POST DISPATCH (Jun. 24, 2019), https://www.stltoday.com/news/local/metro/acluseeks-to-force-missouri-to-treat-inmates-hepatitis-c/article_85f1ecdc-e818-5bc2-83a12a375b7c2c7c.html.
32. Gabrielle Banks & Keri Blakinger, Texas Inmates Sue for Hepatitis C Drug,
Alleging Lack of Treatment is ‘Cruel and Unusual’, HOUSTON CHRONICLE (Sep. 18, 2019),
https://www.houstonchronicle.com/news/houston-texas/houston/article/Texas-inmates-suefor-hepatitis-C-drug-alleging-14453099.php.
33. Ellie French, ACLU Sues Corrections Over Denial of Hepatitis C Treatment,
VTDIGGER (May 22, 2019), https://vtdigger.org/2019/05/22/aclu-sues-corrections-denialhepatitis-c-treatment/.
34. Noreen Marcus, Hepatitis C Fight Hinges on Prisons, U.S. NEWS (Feb. 5, 2019),
https://www.usnews.com/news/healthiest-communities/articles/2019-02-05/hepatitis-c-fighthinges-on-prisons-inmate-care (“[In 2018] California lawmakers took the unusual step of
putting $105.8 million in the state budget to treat its 22,000 hepatitis C-infected inmates”).
35. Ted Alcorn, Louisiana’s Deal for Hepatitis C Drugs May Serve as Model, WALL
STREET J. (Sept. 13, 2019, 9:50 AM), https://www.wsj.com/articles/louisianas-deal-forhepatitis-c-drugs-may-serve-as-model-11568347621.
36. Mardi Link, Michigan Aims to End Hep C in Prisons, RECORD-EAGLE (Mar. 31,
2019), https://www.record-eagle.com/news/local_news/michigan-aims-to-end-hep-c-inprisons/article_9dc3c401-80aa-5f95-9a59-ef1a9e284e95.html.
37. Ted Alcorn, ‘Major Milestone’: Governor’s Budget Targets Hepatitis C Epidemic
in Prisons, NEW MEXICO IN DEPTH (Jan. 16, 2020) http://nmindepth.com/2020/01/16/majormilestone-governors-budget-target-hepatitis-c-epidemic-in-prisons/ (governor’s proposed
budget “recommends $30 million in new funding for the Corrections Department for
treatment of hepatitis C, with the expectation of curing most inmates by the end of 2024”).
38. JoNel Aleccia et al., Pharma Sells Washington State and Others on ‘Netflix Model’
to Wipe Out Hep. C. But the Cost is Being Kept from the Public, SEATTLE TIMES (Oct. 29,
2019), https://www.seattletimes.com/seattle-news/health/pharma-sells-washington-state-andothers-on-netflix-model-to-wipe-out-hep-c-but-the-cost-is-being-kept-from-the-public/.
39. WYOMING NEWS EXCHANGE, Corrections Department Seeks $4 million for Hepatitis
Treatments, GILLETTE NEWS RECORD (Jan. 6, 2020),
https://www.gillettenewsrecord.com/news/wyoming/article_9e863df3-66cd-5cbc-962d6f153c6010f9.html.
40. Atkins v. Parker, 412 F.Supp.3d 761, 782 (M.D. Tenn. 2019).
41. Josiah D. Rich et al., Responding to Hepatitis C through the Criminal Justice

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in prisons dooms any effort to eliminate hepatitis C in America”.42
Accordingly, inmate HCV litigation can help promote public health.
According to Ross Silverman, Professor of Health Policy and Management
at the Indiana University Richard M. Fairbanks School of Public Health:
We’ve seen a significant rise in the number of HCV cases in Indiana.
Slowing and ultimately eliminating HCV infection in our state and across the
nation depends upon providing treatment to this otherwise vulnerable and
hard-to-reach population of people moving in and out of the prison system.43
Successful inmate HCV litigation is thus a strategy for improving the
health of multiple populations. It simultaneously vindicates infected inmates’
rights and can improve the health of infected and uninfected persons alike.
“[Stafford] is an important decision in support of justice and the public’s
health,” states Silverman.44
These two goals—curing infected inmates and reducing disease
transmission—are best achieved by treating all infected inmates regardless
of disease stage or symptoms, a.k.a., “universal treatment.” Yet such
treatment can have a mixed health impact on inmates who are not infected
with HCV. On one hand, treatment reduces their risk of contracting HCV.
On the other hand, requiring prison systems to buy DAAs reduces the funds
available to meet inmates’ non-HCV-related health needs—that is, unless
state legislatures appropriate additional funds for DAAs. Critically, it may be
that certain health interventions unrelated to HCV improve inmate health
more cost-effectively than treating HCV, especially for those with early-stage
or asymptomatic HCV. Universal treatment may best promote the health of
infected inmates and the general population. However, unless prison officials
are provided additional funds to buy DAAs, they may pay for them through
cuts that may reduce the health of uninfected inmates and the inmate
population as a whole.
As demonstrated below, courts are well-positioned to enforce an infected
inmate’s constitutional right to treatment, advance the public’s interest in
combating the HCV epidemic, protect uninfected persons and populations
from disease transmission, and ensure that taxpayers rather than uninfected
inmates bear the cost of expanding treatment.
Part I provides information about HCV, the stages of this disease,
lifesaving DAAs, the HCV epidemic, and expert recommendations for
System, 370 NEW ENG. J. MED. 1871, 1873 (May 15, 2014).
42. Marcus, supra note 34.
43. IU McKinney Professor and Alumnus Life-Saving Treatment for Inmates, IU
ROBERT H. MCKINNEY SCHOOL OF LAW (Jan. 6, 2020),
https://mckinneylaw.iu.edu/news/releases/2020/01/iu-mckinney-professor-and-alumnussecure-life-saving-treatment-for-inmates.html.
44. Id.

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treatment. It also explores the tension between the goals of curing HCVinfected inmates and reducing disease transmission.
Part II discusses the Eighth Amendment’s guarantee of adequate medical
care for inmates, which it secures by prohibiting prison officials from
displaying deliberate indifference to an inmate’s serious medical needs. The
linchpin of the Eighth Amendment guarantee is its connection to a
physician’s professional judgment. This part also discusses the discredited
“defense of inadequate funds,” in which prison systems essentially plead
poverty in an attempt to avoid providing costly medical care to which inmates
are constitutionally entitled.
Part III presents the Eighth Amendment analysis of IDOC and FDC’s
undertreament of HCV. The Stafford and Hoffer courts held that chronic
HCV is a “serious” medical condition even during the early stages of the
disease and without fibrosis or other disease symptoms. The courts looked to
the medical standard of care for objective criteria for determining whether a
condition is constitutionally “serious.” The Stafford and Hoffer courts also
found that prison officials were “deliberately indifferent” because their HCV
treatment policies lacked medical foundation.
Part IV details the Stafford settlement agreement under which Indiana
undertook to treat all class members by July 1, 2023, subject to an
appropriation of sufficient funds by the Indiana General Assembly. This
amount could be as large as $100 million. Should the General Assembly fail
to appropriate these funds, the Plaintiffs may seek enforcement from the
court.
Part V examines the Hoffer court’s decisions to grant injunctive relief and
order Florida to commence treating infected inmates. In balancing the
hardships, the Hoffer court did not consider the unintended harm such relief
might visit upon uninfected inmates if prison officials pay for DAAs by
diverting funds away from health interventions that are unrelated to HCV and
not required by the Eighth Amendment. In finding that an injunction would
serve the public interest, the Hoffer court focused on how treatment would
reduce the risk of disease transmission to uninfected persons.
I.

THE HEPATITIS C VIRUS (HCV)

What is the Hepatitis C Virus (HCV)?
The Hepatitis C virus (HCV) is an infectious disease transmitted through
exposure to infected blood.45 It causes inflammation of the liver that

45. Stafford v. Carter, No. 1:17-CV-00289, 2018 WL 4361639, at *8 (S.D. Ind. Sept.
13, 2018).

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frequently results in liver scarring (also called “fibrosis”).46 Such scarring can
significantly impair liver function and lead to liver failure, liver cancer, and
other complications.47
HCV infection occurs in two stages: acute and chronic.48 Approximately
15 percent to 25 percent of infected persons clear the virus from their bodies
without treatment; the remaining 75 to 85 percent move into the chronic
phase.49 Unless treated, chronically-infected individuals remain infected for
life.50 In addition, 10 to 20 percent of people infected with HCV will develop
cirrhosis of the liver within 20-30 years.51 Finally,1 to 5 percent of
chronically-infected individuals die within twenty years of becoming
infected.52
HCV is a progressive disease that becomes more severe over time.53 Some
HCV-infected patients may experience symptoms such as fatigue, joint pain,
nerve pain, skin disorders, jaundice, fluid accumulation in the abdomen,
confusion, and gastrointestinal bleeding.54
The severity of an infection is reflected in the degree of scarring or fibrosis
in the liver.55 Doctors describe the progression of fibrosis with a five-stage
scale: F0 (no fibrosis); F1 (mild fibrosis); F2 (moderate fibrosis); F3
(advanced fibrosis); and F4 (cirrhosis).56 The stage of a patient’s fibrosis does
not necessarily correspond to their symptoms.57 For example, some infected
individuals with cirrhosis (F4) may have no symptoms for decades.58 The
disease’s progression varies from person to person based on a variety of
factors including an individual’s sex, duration of infection, age, alcohol use,

46. Hoffer v. Jones, 290 F. Supp. 3d 1292, 1294 (N.D. Fla. 2017); see also Am. Ass’n
for the Study of Liver Diseases & Infectious Diseases Society of Am., When and in Whom to
Initiate HCV Therapy, HCVGUIDELINES.ORG, www.hcvguidelines.org/evaluate/when-whom
(last updated Nov. 6, 2019) [hereinafter When to Initiate HCV Therapy].
47. Jones, 290 F. Supp. 3d, at 1294.
48. Stafford, 2018 WL 4361639, at *8.
49. Id. From here on, “HCV” and “chronic HCV” will be used interchangeably, and
references to those “infected” mean those chronically infected.
50. Id.
51. Hepatitis C Questions and Answers for Health Professionals - Viral Hepatitis, CTR.
FOR DISEASE CONTROL & PREVENTION, www.cdc.gov/hepatitis/hcv/hcvfaq.htm (last visited
Apr. 11, 2020) [hereinafter CDC HEPATITIS C QUESTIONS AND ANSWERS].
52. Stafford, 2018 WL 4361639, at *12.
53. Id. at *8.
54. Id.
55. Id. at *9.
56. Atkins v. Parker, 412 F. Supp. 3d 761, 766 (M.D. Tenn. 2019).
57. Hoffer v. Jones, 290 F. Supp. 3d 1292, 1295 (N.D. Fla. 2017).
58. Jones, 290 F. Supp. 3d at 1295; CDC HEPATITIS C QUESTIONS AND ANSWERS, supra
note 51.

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and cigarette smoking.59 It is thus difficult to predict the rate at which an
individual’s HCV will progress.60
There are several methods for measuring the stage of a patient’s disease.61
One method requires a liver biopsy (the METAVIR score).62 Another method
uses routinely available blood tests (the APRI score).63 A third method, a
non-invasive technique called transient elastography, measures liver
stiffness.64 No single method is highly accurate alone.65
The Cure
HCV can be cured through treatment with direct-acting anti-viral drugs or
DAAs.66 DAAs work by preventing the virus from replicating, eventually
eliminating it from the body.67 Cure, also known as sustained virologic
response (SVR), is defined as “the absence of detectable virus for at least 12
weeks after completion of treatment.”68 DAAs are the only effective
treatment for HCV.69
A course of treatment typically lasts between 8 to 12 weeks.70 It can cure
59. See When to Initiate HCV Therapy, supra note 46 (“Fibrosis results from chronic
hepatic necroinflammation”).
60. Stafford, 2018 WL 4361639, at *12.
61. Id. at *9.
62. Id. at *9; see generally, When to Initiate HCV Therapy, supra note 46 (“Although
liver biopsy is the diagnostic standard, sampling error and observer variability limit test
performance, particularly when inadequate sampling occurs. Up to 1/3 of bilobar biopsies
had a difference of at least 1 stage between the lobes. In addition, the test is invasive and
minor complications are common, limiting patient and practitioner acceptance. Although
rare, serious complications such as bleeding are well recognized.”).
63. Stafford, 2018 WL 4361639, at *9; AM. ASS’N FOR THE STUDY OF LIVER DISEASES &
INFECTIOUS DISEASES SOCIETY OF AM., HCV Testing and Linkage to Care,
HCVGUIDELINES.ORG, https://www.hcvguidelines.org/evaluate/testing-and-linkage (last
updated Nov. 6, 2019), [hereinafter HCV Testing and Linkage to Care].
64. Stafford, 2018 WL 4361639, at *9; HCV Testing and Linkage to Care, supra note
63.
65. When to Initiate HCV Therapy, supra note 46.
66. Stafford, 2018 WL 4361639, at *9.
67. Id.
68. CDC HEPATITIS C QUESTIONS AND ANSWERS, supra note 51, at 2; When to Initiate
HCV Therapy, supra note 46, at 7.
69.
Stafford, 2018 WL 4361639, at *9; see generally, Atkins v. Parker, 412 F. Supp. 3d
761, 767 (M.D. Tenn. 2019) (writing “in the past, the standard treatment for chronic HCV
infections involved injections of a drug called interferon, which activates the immune
system.”); see also Alliance for Patient Access, Hepatitis Therapy Access Physician’s
Working Group (last visited Feb. 1, 2020), https://allianceforpatientaccess.org/hepatitis/
(writing that these injections, administered over a period of 24–48 weeks, “offered only a 50
percent success rate and dampened patients’ quality of life by introducing side effects such
as fatigue and depression”); see also Atkins, 412 F. Supp. 3d 761 at 767 (writing “upon the
approval of DAAs, interferon treatment for HCV was effectively abandoned”).
70. CDC HEPATITIS C QUESTIONS AND ANSWERS, supra note 51, at 6.

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over 90 percent of HCV-infected persons with minimal side effects.71
Patients who are cured of their HCV infection experience numerous health
benefits including reduced fibrosis, resolution of cirrhosis, reduced risk of
liver cancer and liver-related mortality, and improved quality of life.72
A course of treatment with DAAs currently costs approximately
$25,000,73 although pharmaceutical manufacturers and payers are developing
innovative models for lowering prices. For example, under a subscriptionbased approach (the “Netflix model”) a “state pays a negotiated price for a
certain volume of a drug over a specified period of time to increase access in
a way that recognizes state budget constraints.”74 Louisiana recently entered
into such an agreement with Gilead Sciences, a pharmaceutical company,
achieving huge cost savings. Under the agreement, the state pays an annual
fee ($35 million) to the company for unlimited access to its DAAs for five
years, instead of paying per patient for a total cost of $760 million.75
The HCV Epidemic
An estimated 3.5 million individuals are infected with HCV in the United
States.76 The incidence of HCV increased “by more than 200 percent in 30
states since . . . 2010-2014.”77 And it is growing. One study reported that
without large-scale efforts to treat HCV, “the burden of HCV-associated
disease will increase dramatically in the near future, with more than 1 million
people expected to die from HCV by 2060.”78
HCV poses an especially grave threat to incarcerated persons. An
estimated 17.4 percent to 23.1 percent are infected with HCV79 as compared

71. Id.
72. When to Initiate HCV Therapy, supra note 46, at 2.
73. Anne C. Spaulding et al., Funding Hepatitis C Treatment in Correctional Facilities
by Using a Normal Pricing Mechanism, 25 J. CORRECTIONAL HEALTH CARE 1, 2 (2018).
74. KATE JOHNSON ET AL., NAT’L GOVERNORS ASS’N, PUBLIC HEALTH CRISES AND
PHARMACEUTICAL INTERVENTIONS: IMPROVING ACCESS WHILE ENSURING FISCAL
SUSTAINABILITY 6, 21–23 (2018); see also Mark R. Trusheim et al., Alternative State Level
Financing for Hepatitis C Treatment-The “Netflix Model,” 320 JAMA, E1 (2018)
(describing the subscription based pricing model as the “Netflix” model).
75. See ASSOCIATED PRESS, Gilead Enters Subscription-Based Contract with Louisiana
for Hepatitis C Drugs, MODERN HEALTH CARE, (Mar. 27, 2019),
https://www.modernhealthcare.com/government/gilead-enters-subscription-based-contractlouisiana-hepatitis-c-drugs (stating “Louisiana will treat as many Medicaid patients and
prisoners as it can [during this period], rather than pay a per-patient treatment price that is so
costly it has severely limited access”).
76. HCV Testing and Linkage to Care, supra note 63, at 1.
77. Marcus, supra note 34.
78. Rich et al., supra note 41, at 1872.
79. HCV Testing and Treatment in Correctional Settings, supra note 1, at 1.

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to 1 percent of the U.S. adult population.80 The high prevalence of HCV
among inmates is due in part to the fact “that many populations who are most
affected by incarceration such as the poor, injection drug users, and the
mentally ill, are also more likely to have HCV.”81 In addition, infected
inmates can transmit HCV to other inmates. Upon release they can infect
members of the general population. However, those patients who are cured
can no longer transmit the virus to others.82 Treating inmates is thus an
important population health strategy for combating the HCV epidemic.
Medical Recommendations for Treating HCV
Two learned societies jointly have provided healthcare practitioners with
guidance on how best to treat patients with HCV.83 Together, the American
Association for the Study of Liver Diseases (AASLD) and the Infectious
Diseases Society of America (IDSA) “have developed a web-based process
for the rapid formulation and dissemination of evidence-based, expertdeveloped recommendations for hepatitis C management.”84 These
recommendations are contained in an online document entitled “HCV
Guidance: Recommendations for Testing, Managing, and Treating Hepatitis
C” (“the Guidance”).85
The Guidance recommends treatment “for all patients with acute or
chronic HCV infection, except those with a short life expectancy that cannot
be remediated by HCV therapy, liver transplantation, or another directed
therapy.”86 These recommendations are supported by the highest level of
medical evidence, i.e., “[e]vidence and/or general agreement that a given. . .
treatment is beneficial, useful, and effective.”87 The recommendations also
80. HEPATITIS C PREVALENCE ESTIMATES 2013-2016, CTRS. FOR DISEASE CONTROL &
PREVENTION, https://www.cdc.gov/nchhstp/newsroom/2018/hepatitis-c-prevalenceestimates.html (last visited Nov. 6, 2018).
81. An Overview of Hepatitis C in Prisons and Jails, NATIONAL HEPATITIS
CORRECTIONS NETWORK (Feb. 22, 2016), http://www.hcvinprison.org/resources/articlesdocuments/71-main-content/content/191-hepcprison.
82. When to Initiate HCV Therapy, supra note 46, at 2.
83. AM. ASS’N FOR THE STUDY OF LIVER DISEASES & INFECTIOUS DISEASES SOCIETY OF
AM., About the Guidance, HCVGUIDELINES.ORG, https://www.hcvguidelines.org/about (last
visited April 11, 2020).
84. Id.
85. Id.
86. When to Initiate HCV Therapy, supra note 46, at 1. (“Patients with a short life
expectancy owing to liver disease should be managed in consultation with an expert.”)
(emphasis added).
87. See generally AM. ASS’N FOR THE STUDY OF LIVER DISEASES & INFECTIOUS
DISEASES SOCIETY OF AM., Table 2. Rating System Used to Rate Level of Evidence and
Strength of Recommendation, HCVGUIDELINES.ORG,
https://www.hcvguidelines.org/contents/methods/table-2 (last visited April 11, 2020)

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have the highest level of strength, i.e., the supporting data is “derived from
multiple randomized clinical trials, meta-analyses, or equivalent.”88
The Guidance states that treatment with DAAs “is expected to benefit
nearly all chronically infected persons” regardless of their fibrosis stage.89 It
states that practitioners should commence treatment “preferably early in the
course of chronic hepatitis C before the development of severe liver disease
and other complications.”90 Patients who start treatment at an early stage of
the disease have better outcomes than those who start at a later stage.91 For
example, one study concludes that waiting to treat HCV until stage F3 and
stage F4 results in two and five times higher rates of liver-related mortality,
respectively, compared with commencing treatment at stage F2.92
Trade-offs Between Patient Health and Population Health
The Guidance recognizes that treating infected inmates can improve
population health: such treatment “can ultimately reduce the risk of liverrelated and extrahepatic complications [among inmates], and has the
potential to decrease HCV transmission in correctional facilities and the
community after release.”93 These population health benefits warrant
expanding treatment because “[i]mproving the diagnosis and management of
HCV infection in correctional settings will greatly facilitate efforts to
eliminate HCV infection in the US.”94
But these two goals are not identical. The Guidance states that F3 and F4
patients, who have the highest risk for HCV-related complications, realize
“the most immediate benefits of treatment.”95 If the primary goal is to reduce
the number of inmates who suffer and die from HCV-related complications,
then F3s and F4s should be treated first. However, if the primary goal is to
improve the general population’s health, then inmates facing imminent
release should be treated first and without regard to the stage of their disease,
as F0s can transmit the disease as readily as F4s.96
(describing the requirements for the different classes and levels of evidence).
88. Id.
89. When to Initiate HCV Therapy, supra note 45 at 1.
90. Id. at 2 (emphasis added).
91. Id.
92. Id. at 3.
93. HCV Testing and Treatment in Correctional Settings, supra note 1, at 2.
94. Id. at 4.
95. See AASLD/IDSA HCV Guidance Panel, Hepatitis C Guidance: AASLD‐IDSA
Recommendations for Testing, Managing, and Treating Adults Infected with Hepatitis C
Virus, 62 HEPATOLOGY 932, 935-36 (2015) (referencing table 3 which discusses settings
of liver-related complications and extrahepatic disease in which HCV treatment is most
likely to provide the most immediate and impactful benefits).
96. The Guidance refers to such patients as “those at risk for transmitting HCV or in

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In its initial formulation in 2015, the Guidance recommended that even
under conditions of scarcity both goals should be pursued simultaneously.97
[W]here resources limit the ability to treat all infected patients
immediately as recommended, it is most appropriate to treat first [a] those at
great risk of disease complications . . . and [b] those at risk for transmitting
HCV or in whom treatment may reduce transmission risk.98
The Guidance’s current treatment recommendations are grounded
exclusively on the health benefits of treatment to individual patients.99
Although the Guidance recognizes the public health benefits of treatment in
preventing transmission to non-patients,100 its recommendations are not
grounded on these benefits101 or on the cost-effectiveness of treatment from
a societal perspective.102 As explained below, an individual inmate’s Eighth
Amendment right to adequate health care is ultimately grounded on the health
benefits the inmate derives from the requested treatment; it does not turn on
considerations of whether an individual inmate’s treatment will increase the
overall health of the inmate or general populations as a whole.
II.

THE EIGHTH AMENDMENT AND THE RIGHT TO ADEQUATE MEDICAL
CARE

The Eighth Amendment to the United States Constitution prohibits the
government from inflicting “cruel and unusual punishments” on convicts.103
In Wilson v. Seiter, the U.S. Supreme Court explained that this prohibition
encompasses “deprivations . . . not specifically part of [a] sentence but . . .
suffered during imprisonment.”104
whom treatment may reduce transmission.” See id. at 935.
97. Id.
98. Id. at 936.
99. When to Initiate HCV Therapy, supra note 45 at 2.
100. See id. at 6 (“Persons who have successfully achieved SVR (virologic cure) no
longer transmit the virus to others. As such, successful treatment of HCV infection benefits
public health.”).
101. See id. (“To guide implementation of hepatitis C treatment as a prevention
strategy, studies are needed to define the best candidates for treatment to stop
transmission. . .”).
102. See AM. ASS’N FOR THE STUDY OF LIVER DISEASES & INFECTIOUS DISEASES
SOCIETY OF AM., Overview of Cost, Reimbursement, and Cost-Effectiveness Considerations for
Hepatitis C Treatment Regimens, HCVGUIDELINES.ORG www.hcvguidelines.org/evaluate/cost
(“the HCV guidance does not utilize cost-effectiveness analysis to guide [treatment]
recommendations”) [hereinafter AASLD-IDSA OVERVIEW OF COST].
103. U.S. Const., Amend. VIII; see also Wilson v. Seiter, 501 U.S. 294, 298 (1991)
(discussing the provision of inadequate medical treatment to inmates or its outright denial
also implicates inmates’ right to due process under the Fifth or Fourteenth Amendments);
JOHN PALMER, CONSTITUTIONAL RIGHTS OF PRISONERS § I-10.3 (9th ed. 2009).
104. Wilson, 501 U.S. at 297.

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The Estelle Deliberate Indifference Test
In Estelle v. Gamble, decided in 1976, the Supreme Court established that
prison officials are constitutionally obliged to provide inmates with adequate
medical care.105 Such officials violate the Eighth Amendment by displaying
“deliberate indifference” to an inmate’s “serious medical needs.”106 A
violation is thus “defined by the seriousness of the prisoner’s medical needs
and the subjective state of mind of prison officials providing care.”107
The Estelle court’s “deliberate indifference” standard has both an
objective and subjective prong.108 First, an inmate must demonstrate that their
medical need or condition is sufficiently serious in an objective sense.109 An
inmate’s need or condition may be “serious” if it “has been diagnosed by a
physician as mandating treatment.”110 It may also be “one that is so obvious
that even a layperson would easily recognize the necessity for a doctor’s
attention.”111 Second, an inmate must show that the responsible prison
officials acted with a “sufficiently culpable state of mind.”112 For example,
prison officials may act with deliberate indifference by delaying medical
treatment for a non-medical reason.113
The Eighth Amendment protects inmates from conditions that pose an
unreasonable risk of damage to their present or future health.114 In Helling v
McKinney, Helling’s cellmate smoked five packs of cigarettes a day.115
Helling stated a constitutional cause of action by alleging that prison officials
exposed him to unreasonably high levels of environmental tobacco smoke,116

105. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also West v. Atkins, 487 U.S. 42,
54 (1988) (discussing how prisons have “a constitutional obligation . . . to provide adequate
medical care to those whom it has incarcerated”).
106. West, 487 U.S. at 46.
107. Andrew Brunsden, Hepatitis C in Prisons: Evolving Toward Decency Through
Adequate Medical Care and Public Health Reform, 54 UCLA L. REV. 465, 484 (2006).
108. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Roe v. Elyea, 631 F.3d 843, 857
(7th Cir. 2011); PALMER, supra note 103.
109. Farmer, 511 U.S. at 823.
110. MICHAEL B. MUSHLIN, 1 RIGHTS OF PRISONERS § 4:4 (5th ed. 2019).
111. Id.
112. Farmer, 511 U.S. at 823; Palmer, supra note 103, at 229.
113. Baez v. Rogers, 522 F. App’x 819, 821 (11th Cir. 2013) (discussing that conduct
that is more than negligence includes delaying treatment for a non-medical reason); Archer
v. Dutcher, 733 F.2d 14, 17 (2d Cir. 1984) (delaying treatment as punishment for past
breaches of the disciplinary code is an invalid reason); Ancata v. Prison Health Services,
Inc., 769 F.2d 700, 704 (11th Cir. 1985) (delaying care as a means to coerce an inmate to
pay for their care is an invalid reason).
114. Helling v. McKinney, 509 U.S. 25, 32 (1993); Roe v. Elyea, 631 F.3d 843, 858
(7th Cir. 2011).
115. Helling, 509 U.S. at 28.
116. Id. at 35.

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which increased his risk of respiratory and other ailments. To prevail, Helling
was not required to show that he was currently experiencing serious medical
problems from such exposure.117
Professional Judgement
If an inmate has a serious but curable medical condition, prison doctors
might respond by (1) prescribing an effective treatment; (2) prescribing an
effective but suboptimal or less desirable alternative treatment; (3) denying
effective treatment due to an unwise or negligent exercise of professional
judgment; or (4) denying effective treatment without exercising professional
judgment.
The second scenario, prescribing an effective but suboptimal alternative,
does not constitute deliberate indifference. In Forbes v. Edgar, a Seventh
Circuit case, an inmate with tuberculosis requested that a certain drug therapy
be administered daily.118 Although experts recommended daily
administration, a semiweekly or twice-a-week administration was “a
satisfactory alternative.”119 The court held that prison doctors, who
administered the therapy on a semiweekly basis, did not thereby violate the
Eighth Amendment.120 This case stands for the proposition that an inmate “is
not entitled to the best care possible. She is entitled to reasonable measures
to meet a substantial risk of serious harm to her.”121
The third scenario, denying an inmate effective treatment as a result of a
prison doctor’s mistake or negligence, does not necessarily violate the Eighth
Amendment.122 This aligns with the “error in judgment rule” in medical
malpractice, which “exempts a physician from liability if the malpractice is
based on the physician’s error in judgment in choosing among different
methods of treatment or in diagnosing a condition.”123
J.W. Gamble, the plaintiff in Estelle, lost his case on this basis. Gamble
injured his back when a bale of cotton fell on him.124 “The doctors diagnosed
his injury as a lower back strain and treated it with bed rest, muscle relaxants,
and pain relievers.”125 Gamble complained that “more should have been done
by way of diagnosis,” such as an x-ray of his lower back, and that an
117. Id.
118. Forbes v. Edgar, 112 F.3d 262, 265 (7th Cir. 1997).
119. Forbes, 112 F.3d at 267.
120. Id.
121. Id.
122. Medical Malpractice, GALE ENCYCLOPEDIA OF AMERICAN LAW (Donna Batten ed.,
vol. 7, 3rd ed. 2010).
123. Id. at 31–32.
124. Estelle v. Gamble, 429 U.S. 97, 99 (1976).
125. Id. at 107.

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appropriate diagnosis would have led to effective treatment.126 The Court
found that prison doctors who exercise professional judgment in making
treatment decisions do not violate the Eighth Amendment, even if the
exercise was (simply) negligent.127
[T]he question [of] whether an X-ray or additional diagnostic techniques
or forms of treatment is indicated is a classic example of a matter for medical
judgment. A medical decision not to order an X-ray, or like measures, does
not represent cruel and unusual punishment. At most it is medical
malpractice. . .128
In the fourth scenario, prison doctors violate the Eighth Amendment by
denying effective treatment without exercising professional medical
judgment. According to Estelle, a prison doctor may display “deliberate
indifference” in this way by providing an “easier and less efficacious
treatment” without exercising professional judgment.129 For illustration the
Estelle court cited Williams v. Vincent, a Second Circuit case involving an
inmate who lost a large portion of his right ear in a fight.130 The prison doctor
stitched up the inmate’s stump rather than reattach the severed portion of the
ear.131 The Williams court stated that the doctor’s choice of treatment—
which was the “easier and less efficacious” one—might be attributed to the
doctor’s “deliberate indifference towards [the inmate’s] medical needs,
rather than an exercise of professional judgment. . .”132 The Williams court
opined that “one would expect a concerned doctor to have tried” to sew the
ear back on.133
This fourth category also includes cases where prison officials deny
treatment for a non-medical reason.
This is definitional: medical
professionals fail to exercise professional medical judgment when they make
treatment decisions for a non-medical reason, or for no reason at all.
To determine whether a prison doctor has failed to exercise professional
judgment, we ascertain the medical standard of care and assess how far the
doctor diverged from it.134
For a medical professional to be held liable under the deliberate
indifference standard, they must make a decision that is such a substantial
126. Id.
127. Id. at 106.
128. Id. at 107.
129. Id. at 104, n.10 (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)).
130. Id.
131. See Williams, 508 F.2d at 543 (discussing that after telling the inmate that he
didn’t need the severed portion, the doctors threw it away in front of him).
132. Id. at 544.
133. Id.
134. Youngberg v. Romeo, 457 U.S. 307, 314 (1982).

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departure from accepted professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base the decision on
such a judgment.135
No “Inadequate Resources” Defense to Injunctive Relief
There are at least three financial reasons why prison officials might deny
inmates a medical treatment to which they are constitutionally entitled.136
The state legislature may expressly withhold funds for that specific
procedure, or appropriate insufficient funds for inmate health care altogether.
Or prison officials may choose to deny that treatment in order to fund other
priorities.
When inmates move for an injunction to obtain a particular obligatory
treatment, prison officials cannot defeat the motion by asserting that the state
legislature did not appropriate sufficient funds.137 This is known as “the
defense of inadequate resources.”138 This defense is rejected even if prison
officials themselves lack the means or authority to pay for the treatment.
First, when prison officials are sued in their official capacity, the real
defendant is the state; the officials are simply its agents.139 The state
legislature is responsible for depriving itself and its agents, the prison
officials, of sufficient funds to discharge their constitutional duty to provide
inmates with adequate health care.140 As the Eleventh Circuit explained in
Williams v. Bennett:
[A] state is not required to operate a penitentiary system. If, however, a
state chooses to operate a prison system, then each facility must be operated
in a manner consistent with the Constitution. Thus, when a court is
considering injunctive relief against the operation of an unconstitutionally
cruel and unusual prison system, it should issue the injunction without regard
to legislative financing.141
135.
136.

Id.
MUSHLIN, supra note 110, at n.22; see also Michele Westhoff et al., AN
EXAMINATION OF PRISONERS’ CONSTITUTIONAL RIGHT TO HEALTHCARE: THEORY AND
PRACTICE, HEALTH LAW 1 (The ABA Health Law Section vol. 20 2008) (“[P]rison health
systems are understaffed, poorly organized, and lacking in adequate equipment and facilities.
Often prisoners’ access to what meager services are available is limited by whether a guard
chooses to allow the inmate to seek treatment.”).
137. See MUSHIN, supra note 110, at § 3:92 (writing that in cases seeking injunctive
relief, “courts have consistently held that inadequate funding is not a legitimate defense to
constitutional violations”).
138. Id.
139. Id. at nn.12–13 (citing, inter alia, Kentucky v. Graham, 473 U.S. 159, 165–66
(1985)).
140. Estelle, 429 U.S. at 103–04.
141. Williams v. Bennett, 689 F.2d 1370, 1388 (11th Cir. 1982); see also Watson v.

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Second, allowing a state to plead insufficient funds would permit the
Eighth Amendment’s protections to vary from state to state depending on a
given state legislature’s ability or willingness to raise sufficient funds.142 In
Harris v. Thigpen, the Eleventh Circuit expressed concern that “poor states”
would use the inadequate resources defense to deny inmates’ basic rights:
We do not agree that ‘financial considerations must be considered in
determining the reasonableness’ of inmates’ medical care to the extent that
such a rationale could ever be used by so-called ‘poor states’ to deny a
prisoner the minimally adequate care to which he or she is entitled . . . . We
are aware that systemic deficiencies in medical care may be related to a lack
of funds allocated to prisons by the state legislature. Such a lack, however,
will not excuse the failure of correctional systems to maintain a certain
minimum level of medical service necessary to avoid the imposition of cruel
and unusual punishment.143
III.

THE INFECTED INMATE’S EIGHTH AMENDMENT RIGHT TO
TREATMENT WITH DAAS

The Stafford and Hoffer courts held that chronic HCV is a “serious”
medical condition even in the early stages of the disease when there may be
no fibrosis or symptoms and that prison officials were deliberately indifferent
insofar as their HCV treatment policies were not justified on medical
City of Memphis, 373 U.S. 526, 537 (1963) (rejecting argument that city couldn’t
desegregate parks because of budgetary concerns: “vindication of conceded constitutional
rights cannot be made dependent upon any theory that it is less expensive to deny than to
afford them”); see also Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (holding that
in a § 1983 action alleging prison officials’ deliberate indifference to serious medical needs,
“[l]ack of resources is not a defense to a claim for prospective relief because prison officials
may be compelled to expand the pool of existing resources in order to remedy continuing
Eighth Amendment violations.”); Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991);
see also Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980) (entering an order
requiring county to remedy unlawful jail conditions is not defeated by county’s claim that
compliance would require county to “violate its duty to stay within spending limits imposed
by state law . . . . It is well established that inadequate funding will not excuse the
perpetuation of unconstitutional conditions of confinement”); see also Battle v. Anderson,
564 F.2d 388, 396 (10th Cir. 1977) (affirming order requiring state to remedy prison
conditions notwithstanding financial constraints; “the lack of financing [is not] a defense to a
failure to provide minimum constitutional standards”; “If the State of Oklahoma wishes to
hold the inmates in institutions, it must provide the funds to maintain the inmates in a
constitutionally permissible manner”); see also Holt v. Sarver, 309 F. Supp. 362, 383 (E.D.
Ark. 1970) (writing that “the obligation of the Respondents to eliminate existing
unconstitutionalities does not depend upon what the Legislature may do, or upon what the
Governor may do, or, indeed, upon what Respondents may actually be able to accomplish. If
Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is
countenanced by the Constitution of the United States.”).
142. MUSHLIN, supra note 110, at § 3:92.
143. Harris, 941 F.2d at 1509.

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grounds.
HCV is a Serious Medical Condition at All Stages
The Stafford and Hoffer courts both held that chronic HCV is a “serious
medical condition” at every stage of the disease.144 This finding is grounded
on the medical standard of care, which—as articulated by the Guidance—
recommends that virtually all chronically infected patients receive treatment
with DAAs.145
A specific inmate’s medical need or condition is constitutionally “serious”
if a physician has recommended that it be treated.146 To determine what a
conscientious but hypothetical physician would recommend, we consult the
medical standard of care. With respect to a group of individuals with a
common medical need or condition, their need is “serious” in the relevant
sense if the standard of care is to treat it.147
A standard of care, also known as “best practices,” consists of “[t]reatment
methods for a particular disorder that [(a)] are considered optimal by medical
experts and [(b)] that are widely used in [the] treatment of that disorder.”148
The Guidance’s recommendations for treating HCV meet both criteria. They
represent the informed judgment of two professional societies whose
members possess the relevant expertise: the AASLD, comprised of experts
in gastroenterology and hepatology, and the IDSA, comprised of infectious
disease specialists.149 Second, “[a] majority of medical providers in the
United States who treat HCV follow the AASLD/IDSA Guidance
recommendations.”150
Indiana’s IDOC and Florida’s FDC’s policies for treating HCV purport to
prioritize treatment based on the stage of an inmate’s disease. IDOC’s
written policy gives the highest priority to F3 and F4 inmates, intermediate
priority to F2 inmates, and low priority to F0 and F1 inmates.151 IDOC’s
policy also permits exceptions from the priority criteria based on “a
compelling or urgent need for treatment, such as evidence for rapid
progression of fibrosis, or deteriorating health status from other
144. Jones, 290 F. Supp. 3d at 1299; Id. at *12 (citing, inter alia, Jones, 290 F. Supp.
3d at 1299).
145. Jones, 290 F. Supp. 3d at 1296.
146. MUSHLIN, supra note 110.
147. Id.
148. J.E. SCHMIDT, ATTORNEYS’ DICTIONARY OF MEDICINE (Matthew Bender &
Company 2019).
149. Atkins, 412 F. Supp. 3d 761 at 768.
150. Id.
151. Stafford v. Carter, No. 1:17-CV-00289, 2018 WL 4361639, at *10 (S.D. Ind. Sept.
12, 2018) (I translate these APRI scores into the F stage scale).

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comorbidities.”152 FDC’s policy is similar.153 In practice, IDOC and FDC’s
prioritization approach amounted to full-scale denials of treatment, with all
but a handful of infected inmates receiving treatment.154 This state of affairs,
observed the Stafford court, “can be described in no other way than an
effective denial of treatment for those suffering from chronic HCV.”155
The Stafford court expressly rejected the argument that stages F0 and F1
are not “serious” within the meaning of Estelle’s deliberate indifference
test.156 This argument was also advanced by the Pennsylvania Department
of Corrections (PDOC) in Chimenti v. Wetzel,157 another class action lawsuit
challenging a state prison system’s HCV treatment policy. PDOC moved for
summary judgment on the F0 and F1 inmates’ Eighth Amendment claim on
grounds that they did not (currently) have serious medical needs.158 PDOC
cited testimony that early-stage inmates “are at low risk for rapid progression
to severe liver disease, [and] therefore they are not at imminent risk of
physical injury without immediate treatment with DAA therapies.”159
PDOC’s argument in Chimenti has a surface plausibility. From a medical
perspective, F3 and F4 patients are “at greatest risk of disease complications”
and will realize “the most immediate benefits of treatment.”160 On this basis
a doctor might say that an F0-F1 inmate’s need for DAAs or medical
condition is less pressing or “serious” than an F3-F4 inmate’s. The confusion
arises because the question of seriousness is legal or legal-medical as
opposed to strictly medical or clinical. The relevant question is not “Is HCV
at stages F3-F4 clinically more serious than at F0-F1?” Rather, the question
is “Does the medical standard of care recommend treatment with DAAs for
HCV at stages F0-F1?” Because the answer is yes, HCV at stages F0-F1 is
a “serious medical condition.”
Laypersons can also appreciate the importance of treating patients with
early-stage HCV. Delaying patients’ treatment significantly increases their
risk of liver-related death.161 Untreated patients experience the stress of
152. Id. at *10.
153. Jones, 290 Fla. Supp. 3d at 1301.
154. Stafford, 2018 WL 4361639, at *12.
155. Id. at *20.
156. Id. at *19-20.
157. Chimenti v Wetzel, No. 15-3333, 2018 WL 3388305, at *1, *10 (E.D. Pa. July 12,
2018).
158. Id.
159. Id.
160. AASLD/IDSA HCV Guidance Panel, supra note 95 at 935.
161. See Stafford, 2018 WL 4361639, at *17 (“[T]he undisputed medical evidence is
that delaying treatment for chronic HCV until patients have developed more advanced stage
liver fibrosis has been demonstrated to result in two to five times higher rates of liver-related
mortality, as compared to those offered treatment at an earlier stage.”).

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living under a death sentence, i.e., “the certainty that their disease will
progress through the stages of infection.”162 Because staging is an imprecise
art, a late-stage patient may present as an early-stage one and vice versa.163
Even if a patient has been accurately staged, it is difficult to predict how
quickly a patient’s disease will progress. All these factors increase the danger
of delaying treatment.
Defendants Acted with Deliberate Indifference
Hoffer found that Florida’s FDC acted with deliberate indifference
because it explicitly denied treatment with DAAs for a non-medical reason—
FDC’s alleged lack of funds.164
The Stafford court found that Indiana’s IDOC officials acted with
deliberate indifference by adopting and maintaining a medically unjustified
HCV treatment policy.165 “. . .[I]t is undisputed that there is no medical
justification for dividing individuals into treatment categories based on the
degree of fibrosis or the progression of their disease . . . .”166 IDOC therefore
also withheld treatment on non-medical grounds, although the nature of that
non-medical ground is somewhat obscure because IDOC did not claim
inadequate resources.167
The lack of medical justification for IDOC’s policy is reflected in its
departure from the standard of care, which recommends treatment for nearly
all chronically infected persons.168 The court held that IDOC officials acted
with deliberate indifference because they were aware of the standard of care
and knew that their policy departed from it.169
IDOC officials claimed they offered alternative treatments for HCV.170
These consisted of monitoring, patient education, evaluation by clinicians,
162. Id. at *20.
163. See id. at *17 (“the undisputed medical evidence establishes that the test used by
IDOC to estimate the degree of liver fibrosis is not a good predictor at earlier stages of
infection.”).
164. Jones, 290 Fla. Supp. 3d at 1300–01.
165. Stafford, 2018 WL 4361639, at *20 (finding “that [the] Plaintiffs have satisfied
both the objective and subjective elements of the deliberate indifference standard.”).
166. Id. at *13.
167. Id. (“But Defendants do not contend that the prioritization system was adopted on
the basis of cost savings, and indeed they completely eschew cost as the motivating force.”).
168. Id. at *9.
169. Id. at *15 (“[T]he undisputed evidence establishes that Dr. VanNess knew when he
drafted HCSD 3.09 [IDOC’s HCV treatment policy] that the medical standard of care for
treatment for HCV, as indicated by the AASLD Guidance, recommends treatment for all
individuals suffering from HCV, except for those for whom DAAs are medically
contraindicated. . . Dr. VanNess was also aware that the prioritization policy adopted by
IDOC differs from the AASLD Guidance.”).
170. Id. at *16.

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laboratory analysis, discussion of risk strategies, genotypic testing of the
HCV infection, counseling, pain medication, and vitamins.171 Recall that
when an inmate requests a specific treatment, prison officials do not display
deliberate indifference by prescribing an effective but suboptimal
alternative.172
The suggestion here is that Plaintiffs were grasping for the best (DAAs)
rather than settling for the good enough alternative (monitoring, etc.). What
chutzpah! Yet Plaintiffs presented undisputed evidence that the measures
IDOC proffered as “treatment” could not cure HCV.173 Ineffective treatment
is no treatment at all.174
Lastly, IDOC’s HCV treatment policy permitted exceptions from the
stage-based priority criteria to account for “compelling or urgent need for
treatment.”175 IDOC argued that the opportunity for prison doctors to make
individualized assessments precluded a finding of deliberate indifference.176
The Stafford court found that a policy that is medically unjustified at its core
cannot be remedied by the mere possibility of medically justified
exceptions.177
IV. STAFFORD SETTLEMENT
After the Stafford court granted summary judgment on Plaintiffs’ Eighth
Amendment claim, a permanent injunction was sought to require IDOC to
treat all chronically infected inmates with DAAs immediately.178 Before the
court held a hearing on this motion, the parties jointly submitted a proposed
settlement agreement to the court.179 In an order dated January 2, 2020, the
Stafford court approved the proposed settlement agreement as “a fair,

171. Id. at *5, *6, *16.
172. See infra Part IV.
173. Stafford v. Carter, 2018 WL 4361639, at *16.
174. See id. at *17 (writing that “there is simply no genuine dispute of material fact on
this issue–the only proffered evidence establishes that the actions identified by Defendants
do not constitute treatment.”).
175. Id. at *10.
176. Id. at *13.
177. Id. at *14 (in particular, the Stafford court stated:
“If Defendants’ primary concern were the individualized treatment of each inmate for his or
her HCV, no categorization or prioritization would be necessary . . . .Without the
prioritization system, each individual would be treated without reference to a treatment
category, but instead based solely on his own symptoms and medical presentation”).
178. Plaintiff’s Motion for Permanent Injunction at [*11], Stafford, 2018 WL 4361639
(Mar. 26, 2019) (No. 218).
179. Amended Stipulation to Enter into Settlement Agreement Pursuant to 18 U.S.C. §
3626(c)(2) Following Notice to the Class and Fairness Hearing at [*3], Stafford, 2018 WL
4361639 (Aug. 12, 2019) (No. 253).

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reasonable, and adequate resolution of this matter.”180
Under the terms of the settlement, IDOC promises to revise its HCV
treatment policy to require treatment of all chronically infected inmates.181
IDOC will phase in treatment over several years based on disease stage.182 It
will treat F2-F4 inmates by July 1, 2020, paying for such treatment out of its
existing budget.183 It will treat F0-F1 inmates by July 1, 2023, subject to an
appropriation of the Indiana General Assembly.184
IDOC agrees to ask the Indiana General Assembly to appropriate an
amount “equal to the number of class members currently incarcerated
multiplied by the cost of a standard course of DAA medication . . . .”185 This
amount could be as large as $100 million.186 If IDOC fails to revise its HCV
treatment policy or to request or obtain an appropriation from the Indiana
General Assembly, the Stafford court retains jurisdiction to enforce the
agreement, or to re-open the action and hear the Plaintiffs’ motion for a
permanent injunction.187
V.

HOFFER AND THE HEALTH IMPACTS OF INJUNCTIVE RELIEF ON THIRD
PARTIES

In November 2017, the Hoffer court granted Plaintiffs’ motion for a
preliminary injunction and ordered FDC to commence treating F2 to F4
inmates within one year.188 In April 2019, the court granted Plaintiffs’
motion for a permanent injunction and ordered FDC to commence treating
F0 and F1 inmates within two years.189 FDC has appealed both rulings.190
In deciding whether to grant injunctive relief, a court is obliged to consider
the impact of such relief on non-movants.191 These impacts can be assessed
under two doctrinal headings: the balancing of hardships and the public
interest.192 In its balancing-the-hardships analysis, the Hoffer court touched
180. Stafford v. Carter, No. 1:17-CV-00289-JMS-MJD, at *5 (S.D. Ind. Jan. 2, 2020) .
181. Stafford, 2018 WL 4361639, at *8–9 (Aug. 12, 2019) (No. 253).
182. Id. at *9–10.
183. Id. at *9.
184. Id. at *9–10.
185. Id. at *10.
186. Defendant’s Pre-Hearing Brief and Response to Plaintiff’s Motion for Permanent
Injunction at 4, Stafford, 2018 WL 4361639 (Apr. 9, 2019) (No. 224).
187. Order at 6, Stafford, 2018 WL 4361639, at *6 (Jan. 2, 2020) (No. 282).
188. Jones, 290 F. Supp. 3d at 1305–06.
189. Inch, 382 F. Supp. 3d at 1316.
190. Docket, Carl Hoffer, et al. v. Secretary, Florida Department, No. 19-11921 (11th
Cir. May 17, 2019) (No. 19-11921).
191. See, e.g., Jones, 290 F. Supp. 3d at 1298 (discussing the procedure for injunctive
relief).
192. Inch, 382 F. Supp. 3d at 1314–15.

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upon, but did not pursue, how requiring the prison system to pay for DAAs
would affect its ability to pay for other kinds of inmate health
interventions.193 In finding that an injunction would serve the public interest,
the Hoffer court focused on how it would reduce the risk of disease
transmission to uninfected individuals in the inmate and general
populations.194
Balancing the Interests of Infected Inmates with Nonparties
In deciding a motion for injunctive relief, a court engages in “a balancing
of the interests of the parties who might be affected by the court’s decision—
the hardship on plaintiff if relief is denied as compared to the hardship on
defendant if it is granted.”195 A court may also refuse relief in order to avoid
imposing a hardship on third persons, i.e., parties other than the defendant.196
In granting injunctive relief to Plaintiffs, the Hoffer court found that the
balance of hardships weighed more heavily on Plaintiffs.197 On one side were
the “great injuries” that Plaintiffs would face due to “the harmful
consequences that result from untreated HCV.”198 On the other side, “[t]he
only hardship Defendant faces is that FDC will have to spend more money
[on DAAs] and treat more [HCV-infected] inmates than it wants to.”199 FDC
would also incur “administrative inconvenience.”200
The Hoffer court pits the Plaintiffs’ interests against the FDC’s interests,
which appear inconsequential. In this context, however, prison officials may
represent the legitimate interests of nonparties, most notably uninfected
inmates whose healthcare may worsen if relief is granted.201 In Ward v.
Walsh, the Ninth Circuit denied an Orthodox Jewish inmate’s request not to
be transported on Shabbat or Jewish holidays.202 The court credited the
warden’s testimony that “the health, safety, and welfare of the prisoners is
dependent upon the ability to move prisoners quickly and efficiently,” and
that granting plaintiff’s request “could have a significant impact on guards,
other inmates, and prison resources.”203 Are HCV-infected inmates like the
Orthodox Jewish inmate, where meeting their needs would burden nonparty
193.
194.
195.
196.
197.
198.
199.
200.
201.
202.
203.

Jones., 290 F. Supp. 3d at 1304.
Inch, 382 F. Supp. 3d at 1315.
MARY KAY KANE, 11A FEDERAL PRACTICE & PROCEDURE § 2942 (3d ed. 2019).
Id.
Jones, 290 F. Supp. 3d at 1304; Inch, 382 F. Supp. 3d at 1315.
Jones, 290 F. Supp. 3d at 1304.
Inch, 382 F. Supp. 3d at 1315.
Id.
See Ward v. Walsh, 1 F.3d 873, 879–80 (9th Cir. 1993).
Id.
Id. at 880.

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inmates?
Like the warden in Ward v. Walsh, FDC officials have rejected the
Plaintiffs’ request on grounds that granting it would harm the interests of
nonparties. FDC “does not have unlimited resources and must be a good
steward of public funds”204—in this case, taxpayer dollars designated for
inmate health care. FDC understands stewardship to mean using its scarce
health care dollars in a cost-effective manner. This notion is familiar:
“[m]aximization of health benefits within a relatively fixed budget [is] an
important social and political value.”205
Let’s assume that some uninfected inmates have greater medical needs
than some HCV-infected inmates.206 If so, then at some point each healthcare
dollar spent on non-HCV-related health needs yields more health benefits
than if spent on HCV-related health needs. On this account, compelling FDC
to treat every HCV-infected inmate would reduce overall inmate health. In
FDC’s words:
It would be unreasonable to force the FDC to provide DAA drugs to these
inmates—who are not at risk of immediate serious harm—where such a
requirement would immediately harm the FDC’s ability to provide medical
care to other inmates with more immediate needs.207
FDC does not exactly argue that it cannot pay for DAAs, i.e., it does not
invoke a defense of inadequate resources. Rather, it stands by its decision to
fund health interventions more cost-effective than treating infected inmates
with DAAs. The FDC “must also make policy choices on how to spend its
limited resources on its numerous constitutional mandates.”208
Assuming the size of FDC’s budget is fixed (even if fixed by FDC’s
inaction), any funds spent on DAAs must, according to FDC, be “taken from
providing care to other inmates.”209 The Hoffer court rejects this: “But that
is no excuse. FDC cannot use its constitutional duty to treat a certain group
of inmates as a reason not to treat a different group.”210
204. Secretary Jones’ Response in Opposition to Plaintiff’s Motion for Preliminary
Injunction at 9, Hoffer v. Jones, 290 F. Supp. 3d 1292 (N.D. Fla. 2017) (No. 4:17-CV00214-MW-CAS).
205.
LAWRENCE O. GOSTIN & LINDSAY F. WILEY, PUBLIC HEALTH LAW: POWER, DUTY,
RESTRAINT 63 (3d Ed. 2016).
206. See Secretary Jones’ Response in Opposition to Plaintiff’s Motion for Preliminary
Injunction at 9, Jones, 290 F. Supp. 3d 1292 (No. 31) (“Under the one-size-fits-all approach
requested by Plaintiffs, a prisoner with HCV but without symptoms . . . should be pushed to
the front of the line for expenditure of the FDC’s limited resources regardless of the need
under the Eighth Amendment.”).
207. Id.
208. Id. at 9.
209. Jones, 290 F. Supp. 3d at 1304, n.23.
210. Id. at 1304; See also Inch, 382 F. Supp. 3d at 1315, n.26 (“It is no excuse
to cry that resources may be diverted from other medical programs. FDC cannot use its

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Is the Hoffer court correct? The answer depends on the extent of FDC’s
constitutional duty to provide health interventions unrelated to HCV. A
prison system cannot triage its constitutional obligations: it must meet them
all. As the Eleventh Circuit stated in Williams v. Bennett, “[i]f . . . a state
chooses to operate a prison system, then each facility must be operated in a
manner consistent with the constitution.”211 If there is not enough money to
fund both constitutionally-obligatory and discretionary health interventions
for inmates, FDC may be obliged to stop funding the discretionary ones in
order to fund the obligatory ones. This is true even if some discretionary
interventions improve inmate health more cost-effectively than those
required by the U.S. Constitution.
Contributing to this problem is FDC’s unexplained failure to ask the state
legislature to provide more funds. Indeed, high-level FDC officials
apparently thwarted efforts by lower-level officials to ask the legislature for
such funds.212 FDC cannot fund both DAAs and other interventions without
more funds, nor can it fund DAAs without eliminating discretionary
interventions it deems more conducive to overall inmate health. From this
perspective, the Hoffer court is correct to stay focused on the choices of FDC
officials—especially their choice to keep the agency under-resourced—and
not on the inmates whose health is harmed by those choices.
The Public Interest
In assessing a motion for injunctive relief, a court must consider whether
granting it would serve (or not disserve) the public interest.213 The Hoffer
court found that granting Plaintiffs’ motion would serve the public interest
by combatting the HCV epidemic.214
“[B]oth parties’ experts testified that treating HCV inside prisons may
have great impacts on reducing the prevalence of HCV outside prisons. . . .
So, if anything, it seems that an injunction in this case would actually serve
the public interest.”215 The case for granting an injunction is bolstered by the
indirect health benefits it confers on third parties, most notably the general
constitutional duty to treat one group of inmates as a reason to not treat a different group.”).
211. Bennett, 689 F.2d at 1388.
212. Jones, 290 F. Supp. 3d at 1298 (“In 2015, Mr. Reimers [the FDC administrator
responsible for overseeing medical contractors] prepared a legislative budget request of $6.5
million to obtain DAAs for the 2016–17 fiscal year, but the request never made it out of
FDC (i.e., someone in FDC denied it). [citation omitted] In 2016, Mr. Reimers prepared a
$29 million request for the 2017–18 fiscal year, but that too never made it out of FDC”).
213. See Inch, 382 F. Supp. 3d at 1314 (stating that to obtain a permanent injunction,
Plaintiffs must show [inter alia] that a permanent injunction would not disserve the public
interest”).
214. See Jones, 290 F. Supp. 3d at 1304.
215. Id.

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population.
CONCLUSION
When an inmate HCV lawsuit brings about the universal treatment of
infected inmates, it simultaneously vindicates the inmates’ Eighth
Amendment rights and maximally advances the public health goal of
eradicating HCV. In order to pay for DAAs, however, prison officials may
be tempted to cut spending on health interventions unrelated to HCV that are
not constitutionally required. If some of the eliminated interventions
improve inmate health more cost-effectively than DAAs, universal treatment
may unintentionally reduce the entire inmate population’s overall health and
possibly the general population’s as well.
The Stafford and Hoffer cases show that courts are well positioned to
enforce an infected inmate’s constitutional right to treatment, combat the
spread of HCV to uninfected individuals, and ensure that taxpayers bear the
costs of treatment instead of uninfected inmates.

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