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Physicians are held to professional expectations dictating that the failure to provide standard healthcare is malpractice. There is no difference between failing to provide a service and performing a liable medical mistake.
A recent study revealed that out of the top three reasons why OBGYN physicians are sued for malpractice, two of them are related to inaction: 1) delays in intervention when there are signs of fetal distress and 2) the improper management of pregnancy including failing to test for fetal abnormalities when indicated, failure to address complications of pregnancy, and the failure to address abnormal findings. As a family medicine physician, I have been warned countless of times that one of the most common lawsuits relates to not identifying cases of skin cancer. In each of the instances, an inaction that results in a patient not receiving standard care is considered malpractice.
Given that not providing standard of care is malpractice, Mumia has been a victim of malpractice at the hands of the prison health system in two major areas:
•Even though Hepatitis C treatment is not always required, the failure to provide it for Mr. Abu-Jamal would be medical negligence. By even the most conservative standards, he meets criteria for treatment.
•Failing to treat his elevated blood sugars until he was unconscious is clear malpractice and gross negligence.
Unfortunately, Mr. Abu-Jamal’s case is not an isolated incident. Across the country inmates are not only being denied necessary Hepatitis C treatment, but they are also being denied other basic healthcare needs.
In Part A of this piece we will explore Mr. Abu-Jamal’s case for seeking Hepatitis C treatment, as well as the nationwide negligence in Hepatitis C treatment in prisons.
The discussion of Hepatitis C treatment seems complicated at first glance. In the past, in addition to being costly, treatments for Hepatitis C also took months, typically had very uncomfortable side effects, and had a poor success rate. Additionally the sense of urgency to treat can be ambiguous. On one hand it is one of the highest causes of cirrhosis, or liver failure, in the United States. On the other hand, it can take decades to cause this damage. Because of these nuances, treatment was not previously universally recommended by physicians or sought after by patients.
However, the landscape has change dramatically in the past few years. There are now new medications that have far fewer side effects, much shorter treatment times, and over 90% cure rates. In fact, this was so revolutionary that these new medications were recently added to the World Health Organization’s essential medicines list. Medications on this list are considered “the minimum medicine needs for a basic health-care system.”
Unfortunately, like many new medications, they are incredibly expensive. One of the most popular medications is call Harvoni. For the full, 12-week course of treatment, it costs nearly $100,000. Whether medications should be allowed to be so expensive is a debate for another day, but the bottom-line is that treating Hepatitis C has moved from an issue of patient preference to cost. While increasing healthcare costs is an unfortunate truth for all Americans except the very rich, it is exceedingly pronounced in the prison system.
However, all this is a distracting and irrelevant context in the case of Abu-Jamal. The decision to treat or not to treat is debatable for patients with early Hepatitis C who do not have signs of significant liver disease or signs that Hepatitis C is affecting other areas of their body. In contrast, everybody agrees that when Hepatitis C is that severe, treatment is absolutely indicated. In Abu-Jamal’s case, there is evidence of both liver damage and damage to parts of his body outside the liver in the form of the debilitating skin condition that he has developed.
Additionally, regardless of the decision to treat, everyone who has positive testing for hepatitis workup deserves a full investigation of the severity of his or her infection. In Abu-Jamal’s case, it was first discovered that he had been exposed to Hepatitis C in 2012. The standard of care after that is to test for a continued active infection and then evaluate damage to the liver. None of that was done until his March 2015 hospitalization for unrelated issues, when an ultrasound suggested damage to his liver.
Cirrhosis, or liver failure, is a debilitating medical condition that leads to frequent hospitalization, kidney failure, delirium, and bleeding. It causes a slow and painful death. If Abu-Jamal does not receive Hepatitis C treatment, he will ultimately die a death more miserable than his original death sentence. By medical malpractice standards, there is no difference between sentencing someone to death and withholding a life-saving treatment.
Tragically, Abu-Jamal’s case is not an isolated one as chronic Hepatitis C is very common among patients who are in jail or prison. In 2013 there were 6.9 million people were under correctional supervision. The CDC estimates that anywhere between 13% and 25% of people in correctional facilities have Hepatitis C, many of them unaware of their infection. In comparison, in the entire US population there are estimated 2.7 million cases, which is 0.84%. That’s fifteen to thirty times higher.
Chronic Hepatitis C is not only rampant in prison and jail populations, but it is also vastly undertreated. In 2013 there was a class-action lawsuit filed against Pennsylvania’s Department of Corrections (the prison system that Abu-Jamal is held in) to challenge the Hepatitis C treatment protocol that was in place. Under that, and the current protocol, multiple plaintiffs with advanced liver disease have been denied treatment. In May of 2015 another class-action lawsuit was filed, again for denying Hepatitis C treatment to prisoners. This time it was against the Minnesota Department of Corrections (DOC). Shortly after that case was filed, another class-action lawsuit was filed against the Massachusetts DOC for denying Hepatitis C treatment.
Furthermore it has been found that treating Hepatitis C in prisons is feasible and just as effective as in the non-incarcerated population. Additionally, although Hepatitis C treatment is expensive, it’s been found to be cost-effective in the long term. Complications of cirrhosis rack up medical costs far greater than the Hepatitis C treatment itself. It is thought that prison healthcare systems, which are already tight on funds, frequently do not see the return on this prevention, as most patients will be released. However, a study released in 2008 found that in fact, except for certain segments of the population, treatment for Hepatitis C was still cost-effective.
The final nail in the coffin is that the Department of Corrections for other states are successfully treating Hepatitis C. Dr. Mark Beiter, a physician in Washington state correctional facilities from 2009-2013 reported that “we didn’t have a lot of money… [but] anyone with stage 3 fibrosis or above would get treatment for Hepatitis C.” He also notes that the prison went out of their way to facilitate the completion of the treatment, “If [a patient] went on Hepatitis C treatment they had a hold placed on them and couldn’t be moved unless the medical team [approved it].”
In 2008 the Connecticut DOC released a study that found that under their protocol 49% of patients sought Hepatitis C treatment were given it. Of those that were denied treatment, 40% were due to release being sooner than the duration of the treatment and 22% were due to other medical reasons.
The mantra that DOCs like Massachusetts, Pennsylvania, and Minnesota repeat is that the financial and logistical barriers to Hepatitis C treatment in prisons are too great. However, DOCs such as Washington and Connecticut prove them wrong. It’s not that they can’t provide Hepatitis C treatment; it’s that they won’t.
***In Part B of this piece we will explore the failure to treat Mr. Abu-Jamal’s diabetes that led to serious complications as well as the lack of basic healthcare across the country in prison and jail settings.