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Postawko v. Missouri Department of Corrections

United States District Court, W.D. Missouri, Central Division

May 11, 2017

MICHAEL POSTAWKO, et al., Plaintiffs,


          NANETTE K. LAUGHREY, United States District Judge

         Defendants Missouri Department of Corrections, Adrienne Hardy, and Anne L. Precythe move to dismiss all of Plaintiffs' claims against them. [Doc. 103]. For the following reasons, Defendants' motion to dismiss is granted in part and denied in part.

         I. Background[1]

         Plaintiffs Michael Postawko, Christopher Baker, and Michael Jamerson are incarcerated in the Missouri Department of Corrections (“MDOC”). [Doc. 30');">30, p. 3]. They filed this putative class action for claims arising out of what they allege to be inadequate medical care for their chronic Hepatitis C (“HCV”) viral infections. [Id.]. They bring claims under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (ADA) against numerous defendants, including their prison treating physicians and nurses; prison officials who reviewed their grievances and requests for treatment; the MDOC; and Corizon, LLC, the healthcare provider for all MDOC facilities. [Id. at p. 4-9].

         A. Hepatitis C

         HCV is a viral infection that attacks the liver and causes its inflammation, referred to as hepatitis. [Id. at p. 9]. Hepatitis caused by HCV can significantly impair liver function and damage its crucial role in digesting nutrients, filtering toxins from the blood, and preventing disease. [Id.]. In turn, liver impairment can cause severe pain, fatigue, muscle wasting, difficulty or pain with urination, an increased risk of heart attacks, and other side effects. [Id.].

         HCV can be either acute or chronic. [Id.]. A small percentage of people who are exposed to infected blood develop an acute infection that their body resolves without treatment. [Id.]. However, the majority of people who develop acute HCV, approximately 75 to 85 percent, go on to develop chronic HCV. [Id. at p. 10]. People with chronic HCV develop fibrosis of the liver, which is a process by which healthy liver tissue is replaced with scarring. [Id.]. Because scar tissue cannot perform the jobs of normal liver cells, fibrosis reduces liver function. [Id.].

         When scar tissue begins to take over most of the liver, this extensive fibrosis is termed cirrhosis. [Id.]. Cirrhosis is irreversible, and it often causes additional painful complications, including arthritic pain throughout the body, kidney disease, jaundice, fluid retention with edema, internal bleeding, easy bruising, abdominal ascites, mental confusion, lymph disorders, widespread itching, and even more extreme fatigue. [Id.]. Because it can be difficult to determine exactly when significant hepatitis fibrosis becomes cirrhosis, most of these complications can occur before cirrhosis. [Id.]. Further, if these complications go untreated, some can cause death. [Id.]. At least half of all persons diagnosed with chronic HCV will develop cirrhosis or liver cancer, and between 70 and 90 percent will develop chronic liver disease. [Id.]. Each day without treatment increases a person's likelihood of developing chronic liver disease, fibrosis, cirrhosis, liver cancer, and death from liver failure. [Id.].

         At least 10 to 15 percent of the population under the supervision, care, and custody of the MDOC are infected with HCV. [Id. at p. 11]. As of January 2015, the MDOC reported that it was treating 0.11 percent of HCV-positive inmates under its supervision, or 5 inmates out of 4, 736 inmates with known HCV infections. [Id.].

         B. Standard of Care for HCV

         For many years, there was no effective and safe treatment for HCV. [Id.]. The standard treatment, which included the use of interferon and ribavirin medications, failed to cure most patients and was associated with adverse side effects, including psychiatric and autoimmune disorders. [Id. at p. 12]. However, over the past four years, the Federal Drug Administration (“FDA”) has approved eight new medications, called direct-acting antiviral drugs (“DAA drugs”), which work faster, cause fewer side effects, and are more effective. [Id.]. Over 90 percent of patients treated with a DAA drug are cured. [Id. at p. 14].

         The CDC encourages health professionals to follow the evidence-based standard of care developed by the Infectious Diseases Society of America (“IDSA”) and the American Association for the Study of Liver Diseases (“AASLD”), which constitutes the medical standard of care. [Id.]. On July 6, 2016, these organizations updated the standard of care to recommend treating all persons with chronic HCV with DAA drugs. [Id. at p. 15]. Benefits of treatment include an immediate decrease in liver inflammation, reduction in the progression of liver fibrosis and improvement in cirrhosis, a 70 percent reduction in the risk of liver cancer, and a 90 percent reduction in the risk of liver-related mortality. [Id.]. Studies show that a delay in DAA drug treatment for HCV decreases the benefits associated with cure. [Id.].

         C. Methods for Determining Progression of Fibrosis/Cirrhosis

         Health care providers use several methods to determine the advancement of an HCV-positive person's cirrhosis or fibrosis, including liver biopsy and APRI (AST to Platelet Ratio Index). [Id. at p. 16]. APRI is the use of a blood sample to determine the ratio of a certain enzyme in the blood, aspartate aminotransferase (AST), with (1) the usual amount of AST in the blood of a healthy person and (2) the number of platelets in the affected person's blood. [Id.]. When an APRI score is very high, it has good diagnostic utility in predicting severe fibrosis or cirrhosis, but low and mid-range scores miss many people who have significant fibrosis or cirrhosis. [Id.]. For example, in more than 90 percent of cases, an APRI score of at least 2.0 indicates that a person has cirrhosis. [Id. at p. 17]. However, more than half of all people with cirrhosis will not have an APRI score of at least 2.0. [Id.].

         If a person has already been diagnosed with cirrhosis through some other means, such as liver biopsy, an APRI score is irrelevant and not necessary for measuring the progression of fibrosis. [Id.]. In addition, because the levels of AST and ALT in one's blood fluctuate from day to day, a decreased or normalized level does not mean the condition has improved, and even a series of normal readings over time may fail to accurately show the level of fibrosis or cirrhosis. [Id.]. Furthermore, the elevation levels of AST and ALT often fail to show an individual's current level of fibrosis or cirrhosis, and they often fail to predict the consequences of not treating that individual. [Id.]. Although ALT is found predominately in the liver and not all over the body like AST, and ALT is a more specific indicator of liver inflammation than AST, an APRI score relies only on AST without taking ALT into account. [Doc. 30');">30, p. 17]. For all of these reasons, using an APRI score alone to determine the severity of a person's fibrosis or cirrhosis is not adequate or appropriate. [Id.].

         D. Defendants' HCV Treatment Policy within the MDOC

         Plaintiffs allege that Defendants Precythe, MDOC, and Corizon, LLC have the following policies or customs, all of which are contrary to the prevailing standard of care: (1) not providing DAA drug treatment to all inmates with HCV, or even all inmates with chronic HCV; (2) using an APRI score, which measures the progression of fibrosis or cirrhosis, to determine whether a person should be treated; (3) relying exclusively on APRI score to determine the stage of fibrosis or cirrhosis, rather than using other more accurate methods of determining its progression through liver biopsies, FIB-4, or FibroScan; (4) failing to consider providing treatment to HCV-positive inmates unless they have an APRI score above 2.0 that persists for several months, even though more than half of persons with cirrhosis will not have an APRI score at or above 2.0, and they know that AST levels are transient; (5) disregarding independent diagnoses of cirrhosis or significant hepatitis fibrosis in making their treatment decisions; and (6) basing treatment decisions on cost, rather than on need for treatment. [Id. at p. 17-18]. Plaintiffs further allege that these policies or customs have caused, and continue to cause, unnecessary pain and an unreasonable risk of serious damage to the health of HCV-positive inmates. [Id. at p. 18].

         Contrary to the proper and necessary medical procedures and the standard of care, Defendants have repeatedly denied requests by Plaintiffs Postawko, Baker, and Jamerson, as well as by other members of the putative class, for DAA drug treatment for their HCV infections. [Id. at p. 19]. It is the policy of Defendants to classify inmates with known HCV infection as “Chronic Care Clinic Offenders.” [Id.]. Rather than receiving treatment, these inmates receive a blood draw every six months and, at times, minimal counseling. [Id.]. Defendants also have a policy or custom of permitting “Chronic Care Clinic” visits with HCV-positive inmates to be conducted by video so that there cannot be a visual and physical inspection of the liver, which is contrary to the prevailing standard of care. [Id.].

         E. Plaintiffs Postawko, Baker, and Jamerson's Claims

         Plaintiff Michael Postawko became infected with HCV while under the care and supervision of the MDOC in or around 2012. [Id. at p. 20]. Every Defendant treater who Postawko has seen at the MDOC or who has reviewed his HCV-related complaints has refused to treat Postawko with DAA drugs, contrary to the prevailing standard of care. [Id.]. Postawko has symptoms consistent with HCV, including extreme fatigue to the point that brushing his teeth causes intense aching in his arm muscles; fever; abdominal pain; severe headaches; almost constant joint pain; and dark urine with what appear to be traces of blood. [Id.]. Postawko receives two medications for his severe headaches, sumatriptan and propranolol HCL, which are only about 60 percent effective. [Id.]. Postawko has not received any HCV treatment. [Id.].

         In 2005, Plaintiff Christopher Baker was diagnosed with HCV, and in 2007, he underwent a liver biopsy and was diagnosed with cirrhosis. [Id. at p. 21]. In 2008, Baker was sentenced to ten years in the MDOC. [Id.]. In 2009, the MDOC began treating Baker with the then-prevailing treatment, interferon and ribavirin, which appeared to be working. [Id.]. However, after five months of treatment, the MDOC, through a provider named Dr. McKinney, informed Baker that the MDOC was no longer treating HCV-positive inmates with those drugs and discontinued Baker's course of treatment. [Id.].

         Since early 2010, Baker has received no further treatment for HCV and has received no treatment at any time with a DAA drug. [Id.]. Each treater who Baker has seen at the MDOC or who has denied his HCV-related complaints, including Defendant Adrienne Hardy, has refused to treat him with DAA drugs, contrary to the prevailing standard of care. [Id.].

         On March 2, 2016, while Baker was incarcerated at JCCC, an Informal Resolution Request response to Baker indicates that he was “placed on a spreadsheet” because he had an APRI score above 1.0, without regard to his pre-incarceration cirrhosis diagnosis, which was made based on a liver biopsy. [Id.]. Baker did not receive any treatment as a result of either his independent cirrhosis diagnosis or his placement on a spreadsheet. [Id.]. In July 2016, Baker was transferred from JCCC to Algoa Correctional Center where he no longer even appears on a list for treatment. [Id.]. Baker has symptoms consistent with HCV, including nausea, severe joint pain, fatigue, back and chest pain, tenderness in his liver area, and dark urine. [Id. at p. 22].

         Plaintiff Michael Jamerson became infected with HCV while incarcerated at the MDOC. [Id.]. Jamerson has repeatedly requested treatment with DAA drugs. [Id.]. Although Jamerson is enrolled in the Chronic Care Clinic, he has not received any treatment with any DAA drug. [Id.]. Every medical provider Jamerson has seen at the MDOC or who has directed his course of treatment, has refused to treat him with DAA drugs, contrary to the standard of care. [Id.]. Jamerson has symptoms consistent with HCV, including fatigue; muscle and joint pain; stomach, liver, and chest pain; and tenderness in his liver area. [Id.].

         Plaintiffs bring claims under the Eighth Amendment and the ADA, individually and on behalf of a putative class. Plaintiffs bring two claims on behalf of a putative class:

• Count I for prospective relief for deprivation of their Eighth Amendment rights against Precythe, in her official capacity, and Corizon, LLC; and
• Count II for prospective relief for violation of the ADA against the MDOC.

         In addition, Plaintiffs Postawko, Baker, and Jamerson bring the following individual claims:

• Count III brought by Postawko for damages for deprivation of his Eighth Amendment rights against Precythe, in her official capacity; Corizon, ...

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