Monday, October 21, 2019

Interview: Parsing the civil-rights lawsuit demanding Hepatitis C treatment for Texas prisoners

In last month's Reasonably Suspicious podcast, co-host Mandy Marzullo and I interviewed Texas civil-rights attorney Scott Medlock about his new lawsuit against the Texas prison system over the state's failure to treat inmates suffering from Hepatitis C. (See the original complaint here, and coverage from the Houston Chronicle.) Medlock first learned of the issue in a Grits for Breakfast blog post and filed the suit over the summer. Listen to the excerpted segment here, and find a transcript of our conversation below the jump:

Transcript: Reasonably Suspicious interview with civil rights attorney Scott Medlock regarding his lawsuit against the Texas Department of Criminal Justice over its failure to treat Hepatitis C among inmates

Scott Henson: All right. The last of our top stories involves a new federal civil rights lawsuit against the Texas prison system, alleging that prisoners suffering from hepatitis C aren't receiving treatments that are considered the modern standard of care by free world doctors. New drugs to treat the disease are expensive, costing between $13,000 and $18,000 per prisoner. So with 18,000 Texas prisoners already diagnosed with hep C and most prisoners having never been tested, the cost for paying for treatment could run over half a billion dollars. At the same time, the US Supreme Court has ruled that when states incarcerate someone, they become responsible for providing healthcare services, and doctors have told the state legislature they aren't providing the established standard of care in these cases. Mandy and I recently caught up with attorney Scott Medlock, who filed the suit, for a phone conversation. Here's how he described the case.

Scott Medlock: Well, it kind of all started with Grits for Breakfast, which I was reading several years ago and I believe you posted the video of Owen Murray testifying before the Texas legislature that this new drug for hepatitis C was going to be the standard of care in a couple of years. And now, about five years later, the drug price has come down significantly. There's no doubt that it's the standard of care. If you watch late night TV, you'll see advertising that says you should get tested for hepatitis C, because the drug is so good that the drug company has kind of eliminated their own free world market. They need to find more patients. And it happens to be that the one place where there's a ton of patients who aren't getting drugs is prisons. So they've been doing these cases successfully all over the country and it was well past time that this issue comes to Texas.

Scott Henson: Wow. I have two questions from that. First, how much has the price come down? Because a few years ago, they were saying this was $1,000 a pill, $63,000 for a drug treatment.

Scott Medlock: Yeah. It's still expensive, it's just not ridiculously, exorbitantly expensive like it was when the drug was brand-new. I think that the cost now is somewhere between like $13,000 and $18,000 per course of treatment. So a huge difference than what it was before and a order of magnitude different than what it costs to have a liver treatment, which is the treatment these guys ultimately need if they are not treated for long enough and the disease progresses far enough.

Mandy Marzullo: Isn't, also, hep C often a precursor to cancer, which means that they may have, if it metastasizes we could be talking about huge, long courses of treatment?

Scott Medlock: Absolutely. Hepatitis C is one of the leading causes of liver cancer and liver cancer is one of the leading causes of death in TDCJ.

Scott Henson: Wow. You also said that other states have already engaged in this litigation. Tell me, what's been their experience?

Scott Medlock: The plaintiff's experience in these other cases has been that they win. The classes get certified and the cases either settle or the plaintiffs win, because it's pretty egregious. This is the classic, the prison knows there's a correct course of treatment for people with hepatitis C and they're doing the incorrect course of treatment. The inmates who we represent have been going through the grievance process for years, getting their grievances completed, and they just get a standard response back that no, you're not getting the treatment. So the TDCJ really needs to be taken into court for this one.

Mandy Marzullo: Has TDCJ been sued previously for deviating from the standard care?

Scott Medlock: Only by pro se inmates who just don't have the knowledge and the resources that they need to do this particular type of case. This case requires expert testimony from doctors as to what the standard of care is and then once an inmate hits that barrier, they're going to lose 100 times out of 100, because that's an element of the claim and if you don't have your expert dialed up, you can't get over that.

Mandy Marzullo: This is potentially a watershed case then, right? Because hep C, I'm sure, isn't the only disease that TDCJ is deviating from the medical community in how it's handling-

Scott Medlock: Well, it's definitely the one where it's the most clear. There's differences of medical opinion on a lot of things, like when do you start cancer treatment? When is chemo appropriate versus other treatments? Stuff like that. You'll find different doctors who will say different things. So it's not clear that they're intentionally treating someone differently. But here, the medical community is pretty much unanimous that this is the standard of care. I mean, we've seen Dr. Murray say it's the standard of care. In the meeting minutes for the Correctional Managed Health Care Committee, they routinely quote doctors on the committee saying yes, this is the standard of care. So it's rare that there is a question this well-settled in the medicine that they're not following.

Scott Henson: Right. At the same time, in those hearings, because like you say, I've been covering them on the blog for years and years, I have heard Owen Murray and many others say many times that, "Oh, we're on the brink of not providing constitutional levels of care." Well, then the following budget session, they will reduce spending on healthcare, and that's happened at least twice since they've been saying that they're on the verge of not providing constitutional care. Then they provide less care, but no one ever says, "Oh, well, now it's not constitutional." So you're right. This is one where it's absolutely clear. At the same time, it really does seem like there probably are some other areas, too, where at this point, nobody is receiving very good care.

Scott Medlock: Oh, yeah. For sure. I don't anybody would trade their free world healthcare for what they get in TDCJ. If I had a dollar for every time I received a letter from an inmate telling me about the atrocious healthcare that he or she is getting, I would be able to retire. I wouldn't have to do this work any more, because there are much bigger problems with the healthcare system in TDCJ than just hepatitis C, but this is just the issue where the medicine is so settled that there's really no acceptable excuse for denying the patients these drugs.

Mandy Marzullo: And if anything, it may give the practitioners in TDCJ who know that they are deviating from standard more clout when they're meeting with folks at the capital to say, "We have to do this."

Scott Medlock: Right. And one almost wonders if Dr. Murray is secretly excited to be sued in this case, because it gives him a really big stick to go to the legislature, to say, "Look, we're going to be in a world of hurt and not only paying for these medicines. We're going to be paying these attorney's fees, too. Let's do the right thing here, even if it's not entirely for the right reason any more."

Scott Henson: Well, whether or not he's excited, I'm certainly very excited. And congratulations on getting your complaint out. Tell us, what does victory look like?

Scott Medlock: If they win.

Scott Henson: What's going to happen? What's going to change? What would you see as the right outcome, and what are the implications for TDCJ if you do win?

Scott Medlock: The right outcome is when you're diagnosed with hepatitis C, you get the treatment. There's some medical, very small exceptions for when you wouldn't get started right away, like some small percentage of people, the body clears the infection naturally, so you generally wait about 6 months after you're first diagnosed to determine if you've got a chronic infection or if you've got the super healthy body that can get rid of it naturally. But then after you've been diagnosed for six months, everybody should be getting the treatment. No matter how long you've had it, no matter how far it's progressed, no matter how much or how little damage it's done to your liver. Everybody needs to get the treatment and that's what we are looking for in the case.

Scott Henson: Excellent. Well, thank you, sir, for doing this and I would be remiss if I didn't say congratulations on your prison heat litigation as well.

Scott Medlock: Well, thank you. We are very, very proud of that. We're very proud to represent the gentlemen at the Pack Unit. One of the highlights of my career was the day that I drove up to the Pack Unit to talk to some of my guys and there was a giant crane there, lifting an air conditioning unit over the fence and putting it down next to the prison. That's one to write home about and just talking to all those inmates since the AC has gone in, the huge difference that you can just physically see that it's made in their lives. You talk to them in the air-conditioned visiting area now and it doesn't look like they're just on the verge of death because they've come out of the hundred degree temperatures in their living areas right before they talk to you. So it's something that we at the firm are very, very proud of.

Scott Henson: All right. Well, thank y'all for your great work and thanks for chatting with us.

Scott Medlock: Well, thank y'all. I'm happy to do it any time.

Scott Henson: Mandy, given that treating Texas prisoners with hep C could cost half a billion dollars, what are the implications if this lawsuit wins?
Mandy Marzullo: Well, I think the financial implications are not as bad as someone might think. The half a billion figure is probably a one-time expense. That doesn't mean that the treatment costs are going to go to zero after that, but once you treat everyone in custody with hep C, you're not going to have to treat the same number all over again.

Scott Henson: That's true.

Mandy Marzullo: And you will realize a savings in the course of a prisoner's incarceration. So if someone's in TDCJ custody for a long period of time and they have hep C, treating that person could cost $18,000, but it also means that you're less likely to have to spend tens of thousands of dollars treating that person for a transplant or liver cancer later on down the road.
Scott Henson: Right. And I was very surprised to hear Scott say that liver failure is one of the leading causes of death in TDCJ. I certainly wasn't aware of that.

Mandy Marzullo: I wasn't, either. The other thing that I think about, and I hope that this becomes part of the assessment with other diseases, is that prison is, in some ways, an ideal treatment environment. You don't have to worry about follow-up there.

Scott Henson: Right.

Mandy Marzullo: You know where the patient is. You can make sure that they take all the necessary doses to clear the disease.

Scott Henson: Right. And in this case, now that, as Scott mentioned, in the free world, the drugs have been so successful that they've driven the rates of hepatitis C way, way down, at this point, prison, with more than 30% of inmates having hep C, is probably driving hepatitis C everywhere. People go into prison. Every year, TDCJ release half the prisoners in their custody, more or less, and those people come out and they're probably the main source of hepatitis C expanding at this point.

Mandy Marzullo: I think you're right. When I was in college I worked on some grants to alleviate MDR TB, which is basically, it stands for multidrug-resistant tuberculosis, and what they found was exactly that. That people were cycling in and out of prison, where this disease was being spread, and then when they were released into their communities, they then transmitted it elsewhere. But we also were prioritizing medical care in prison because that was the environment where you could treat it.

Scott Henson: Right. So this an example of prisons causing a public health crisis in the free world, being the source of the problem. It's not really even the case that, oh, it's just worse in prison. No, it starts in prison now.

Mandy Marzullo: In prison, exactly.

Scott Henson: That's where it's coming from. Prison's making everyone less healthy as a result. And putting people at risk.

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