Professor Represents Inmate Fighting to Receive Lifesaving Treatment for Hepatitis C

Rutherglen Says Spread of Hepatitis C Becoming a Major Issue for Prisons
George Rutherglen and Nina Goepfert

Professor George Rutherglen and third-year law student Nina Goepfert go over the latest details of the lawsuit.

March 27, 2017

University of Virginia School of Law professor George Rutherglen is providing pro bono legal representation to a seriously ill prisoner in a lawsuit that highlights the challenges of treating inmates for hepatitis C.

The lawsuit accuses Virginia Department of Corrections employees of denying potentially life-saving treatments to Elmo Augustus Reid, a 60-year-old inmate at the Buckingham Correctional Center.

The defendants are Mark Amonette, chief physician of the department; Bernard W. Booker, warden of the correctional center; and Pamela Shipp, health authority for the center.

"They've given him a lot of bad reasons for not treating him," Rutherglen said. "They know his condition might well deteriorate."

Refusal of treatment for serious medical needs is "cruel and unusual punishment" under the Eighth Amendment according to U.S. Supreme Court precedent, but a plaintiff must demonstrate deliberate indifference through sufficiently harmful acts or omissions of care.

Reid was diagnosed with hepatitis B in March 1988, shortly after he was incarcerated, and was discovered to have hepatitis C in 1989. Hepatitis C can destroy the liver if left unchecked. In 2013, Reid was told he had the most serious stage of cirrhosis, and received initial treatment.

In 2015, Reid's liver function was tested again. This time he was told the score was not high enough for him to receive treatment for hepatitis C, per Department of Corrections' guidelines.

A year later, Reid was denied treatment for a different reason: because he was scheduled for a parole hearing within six months. Though that hearing passed, he still has not received treatment.

"His case is peculiar because they've never given him a straight answer about why he's being denied treatment," Rutherglen said. "They keep changing the answer."

Although Rutherglen is representing an individual plaintiff whom he had represented previously on a religious liberty complaint, he said the case is indicative of a wider problem that prisons are dealing with on a state and national level: how to address the expensive treatment needs of a growing population of inmates with hepatitis.

The Centers for Disease Control estimates 12 to 35 percent of imprisoned offenders have chronic hepatitis C. The American Association for the Study of Liver Disease estimates the number to be 30 to 60 percent.

"The Department of Corrections is confronting a health crisis,” Rutherglen said. “This is just the individual tip of a very large iceberg."

The drugs that can cure hepatitis C are still prohibitively priced, and require several months of use before they are effective, he said. Given those realities, Rutherglen said he can understand the dilemma.

"They have a limited budget," he said. "They can only treat a few hundred inmates. But they really have thousands of inmates with hepatitis C. So they wait until the inmates are in acute danger of liver failure, and then they give them the drug. Now, if they wait too long the drug doesn't do any good. Their liver is already damaged."

Third-year law student Nina Goepfert, who is assisting Rutherglen, said the case has provided her insight into motion practice and strategy, and the challenges unique to prison litigation — all great preparation for her legal career.

"I can't think of a more useful experience during my final semester," Goepfert said. "I have to synthesize material I've learned in the classroom and at various internships over the last three years of law school to work effectively on this case, and I have the great fortune of doing so under an expert."

Goepfert, who founded the Virginia Law in Prison Project, has had an interest in prisoners dating back to her undergraduate days. To her, Reid is being punished beyond his sentence.

"The judiciary sentenced our client to years of incarceration, not to die a slow death in prison due to hepatitis C," she said.

Rutherglen is the John Barbee Minor Distinguished Professor of Law and Barron F. Black Research Professor of Law at UVA. He teaches admiralty, civil procedure, employment discrimination and professional responsibility.

Goepfert recently completed a full-time externship for the Office of the New York State Attorney General, and will work for a New York City law firm after she graduates.

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