Does the Eighth Amendment require Florida prison officials to treat all inmates with chronic Hepatitis-C with direct acting antiviral drugs?  The Eleventh Circuit says no in Hoffer v. Secretary, Florida Department of Corrections, 973 F.3d 1263 (11th Cir. 2020). The FDOC had a treatment plan of only providing inmates in the advanced stages of chronic Hepatitis-C or with certain conditions (such as HIV)  with the expensive, state-of-the-art “direct acting antiviral” (DAA) drugs,[1] but still monitored all chronic Hepatitis-C positive inmates.  In the original case, the district court found that the FDOC did have to use DAA for all Hepatitis-C patients. The Eleventh Circuit disagreed however, finding that the FDOC’s treatment provided the “minimally adequate care” as required by the Eighth Amendment and thus plaintiffs’ Eighth Amendment claim failed as a matter of law.

Claiming Deliberate Indifference

In May 2017, three chronic Hepatitis-C inmates incarcerated in Florida prisons sued the Secretary of the Florida Department of Corrections on behalf of a putative class in the United States District Court for the Northern District of Florida. Among other claims, the plaintiffs alleged, pursuant to 42 U.S.C. § 1983, that the FDOC’s treatment was deliberately indifferent to inmates’ serious medical needs in violation of the Eighth Amendment. Importantly, the plaintiffs sought a class-wide injunction requiring the FDOC to “develop and adhere to a plan to provide direct-acting antiviral medication to all FDOC prisoners with chronic HCV, consistent with the standard of care.” Ultimately, the district court granted plaintiff’s summary judgment and entered a permanent injunction requiring the FDOC to provide DAA to all inmates with chronic Hepatitis-C. The district court found that the only reason why the FDOC elected not to provide DAA to all chronic Hepatitis-C inmates was cost and this was per se deliberate indifference.

The Eleventh Circuit[2]

The Eleventh Circuit reversed the district court’s decision, vacated the injunction, and remanded the case. First, the court focused on the fact that the FDOC was providing “some medical care” and treatment to inmates who were not in advanced stages of Hepatitis-C, but just not the care these inmates preferred. The Court highlighted that there is a range of treatment options that will satisfy the Eighth Amendment. The Court stated: “The long and short of it is that diagnosing, monitoring, and managing conditions—even where a complete cure may be available—will often meet the “minimally adequate medical care” standard that the Eighth Amendment imposes.” Moreover, the Court characterized this case as a mere difference of opinion as to the proper treatment between the plaintiffs’ and defendant’s experts, thus emphasizing that a difference of opinion as to proper treatment does not constitute deliberate indifference.

The Court also found that the lower court’s ruling was incorrect on two points: (1) the judge accepted the plaintiffs’ argument that cost was the only reason behind the FDOC’s decision not to provide DAA to all chronic Hepatitis-C inmates and (2) he stated that the FDOC had not provided any medical basis for declining to treat all chronic Hepatitis-C inmates with DAAs.  Regarding cost, the Eleventh Circuit stated that the Eighth Amendment does not prohibit prison officials from considering cost in determining what type (or level) of medical care inmates should receive. However, cost can never be an absolute defense to what the Constitution otherwise requires. In other words, “if a particular course of treatment is indeed essential to ‘minimally adequate care,’ prison authorities can’t plead poverty as an excuse for refusing to provide it.”  The Court found that the cost defense was not an issue in this case as the Eighth Amendment does not require the FDOC to provide all chronic Hepatitis-C inmates with DAAs.

Regarding the FDOC not providing a medical basis for its treatment plan, the Eleventh Circuit also found that the district court improperly flipped the burden of proof as the inmates bore the burden of proving all aspects of their Eighth Amendment claim, and also that the district court misconstrued the testimony of the FDOC’s medical expert.   Given these findings, the Eleventh Circuit: (1) found that the plaintiffs’ Eighth Amendment claim failed as a matter of law; (2) reversed the district court’s decision inasmuch as it requires DAA treatment for all chronic Hepatitis-C inmates; (3) vacated that portion of the injunction; and (4) remanded with instructions to grant summary judgment for FDOC on that issue.

This case is important because inmates often base their deliberate indifference claims on the theory that they are being denied a particular course of treatment because it is too costly. However, according to the Eleventh Circuit, medical providers and prison officials considering cost is not per se deliberate indifference. The Eleventh Circuit is allowing medical providers and prison officials to consider costs along with other factors in determining the appropriate course of treatment. Moreover, the Court is showing deference to medical decisions made by trained medical personnel and declining to second guess those decisions.

[1] In 2017, the FDOC estimated that the cost per inmate was $25,000 to $37,000 per inmate for a 12-week course of DAA.

[2] Judges Newsome, Martin, and Baldock from the 10th Circuit were on the panel. Judge Martin dissented.