July 7, 2020

COVID-19 and Deliberate Indifference

For instance, the New York Times identified 2,182 cases connected to the Marion Correctional Institution in Ohio as of April 30, 2020. This type of outbreak is likely to repeat itself. The disparate impact of COVID-19 on correctional facilities raises the specter of increased litigation.

While many Americans enjoy the comfort and seclusion of their own home and the discretion to obtain medical attention when they see fit, many prisoners live in crowded conditions and cannot choose their doctor. But the Eighth Amendment prohibits cruel and unusual punishment. This prohibition creates a duty to ensure a prisoner’s safety. Government officials breach that duty when they are deliberately indifferent to a substantial risk of serious harm to those in their custody. If there is proof of deliberate indifference, prisoners can seek damages (including attorney’s fees and punitive damages) in federal court pursuant to 42 U.S.C. § 1983.

The COVID-19 pandemic is likely to lead to an uptick in claims alleging deliberate indifference to serious medical needs in correctional facilities. Lessons learned from cases addressing another virus, Hepatitis C (HCV), may serve as a guide. COVID-19 and viral hepatitis are not the same thing, but they do share some characteristics. For instance, both can require hospitalization and may lead to death. And while the method of transmission differs, they are both contagious and have infected large swaths of the population – especially in correctional facilities. Even though there is no known cure for COVID-19 at this time, these two viruses are also similar in the context of the Eighth Amendment because correctional facilities and their staff have a finite ability to address and combat them. As a result, the approach used to address Hepatitis-C deliberate indifference cases may inform future cases related to COVID-19.

Even before its discovery in 1989, Hepatitis C spread through America’s prison and jail population without a curative treatment. It can lead to cirrhosis and liver failure, which can cause death. Interferon treatment entered the fray in 1991, but it lead to a cure in only 6% of patients. New reported cases declined by more than 80% by 1996 as testing and preventative measures became more widespread. Improvements in interferon therapy (by combining it with ribavirin, for instance) result in better outcomes, but only lead to cure in roughly 40% of patients. It was not until 2014 that the Hepatitis C treatment landscape drastically improved with the development of Harvoni and other anti-viral drugs that lead to a cure in nearly all patients.

While a cure for Hepatitis C is great news, it is not cheap. Harvoni can cost more than $90,000 for a 12-week treatment. To address this issue in Michigan, the Department of Corrections developed a system to prioritize treatment for patients with the most dire need. Several prisoners took issue with the limited supply of curative treatment and alleged deliberate indifference. The approach taken by courts in addressing these claims may shed light on how to address allegations of deliberate indifference to COVID-19 in correctional facilities.

Read the full article in the June-July 2020 edition of Detroit Lawyer on pages 14-15.

Kevin A. McQuillan concentrates his practice on litigation, appellate matters, and malpractice defense. He also represents medical providers and hospitals in medical malpractice and professional licensing matters. Kevin has successfully sought dismissal before trial on more than two dozen occasions in the past five years. Moreover, his appellate advocacy led to multiple published opinions favorable to his clients.

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