US Court of Appeals (1st Circuit) Revives Inmate’s Damage Claim for Denial of HIV Meds

A unanimous three judge panel of the U.S. Court of Appeals for the 1st Circuit, based in Boston, has revived a claim by a state prison inmate that his constitutional rights were violated when he was deprived of HIV medication for an extended period of time in custody.  Ruling in Leavitt v. Correctional Medical Services, Inc., 2011 Westlaw 2557009 ((June 29, 2011), the court partially reversed a decision by U.S. District Judge John A. Woodcock, Jr., of the U.S. District Court in Maine, that had granted summary judgment on behalf of all defendants in the case.  The court of appeals found that Leavitt's complaint against Alfred Cichon, a physician assistant who was responsible for health care at the York County Jail while Leavitt was confined there, should be allowed to proceed.

It was unclear to the court whether Leavitt's status at the York County Jail was as a pretrial detainee or a convicted criminal, thus it was uncertain whether his claim rested on the 14th Amendment Due Process Clause (pretrial detainee) or the 8th Amendment (convicted prisoner subject to punishment).  Either way, however, the court held, the standard was actually the same: could it be claimed based on Leavitt's factual allegations that the defendants were deliberately indifferent to his serious medical condition when he was deprived of HIV meds while confined in the county jail and, subsequently, the state prison?

The story set out in the court's opinion is lengthy and complicated.  The essence of it is that when Leavitt was placed in the county jail, he had a medical intake with Cichon during which Leavitt stated that he was HIV+ and had been taking medications which he wanted to continue taking.  According to Leavitt, Chicon said that the county jail did not provide HIV meds because it was too expensive.  Although Chicon did order blood tests on Leavitt, he made no effort to provide medications for him, and, of course, prisons do not allow inmates to bring their own medications or have them sent from external sources.  As a result, Leavitt was deprived of his HIV meds for his entire 167-day stay at the York County Jail.

He was then sent to the Maine State Prison, where he was deprived of antiretroviral therapy for almost seventeen more months, even though he informed prison health officials upon his arrival that he was HIV+ and in need of treatment.  Various prison health officials employed by the notorious Correctional Medical Services, Inc., the state prison's health care subcontractor, allegedly set in motion various procedures to get Leavitt his meds, but the description of what happened sounds like a sequence of incompetence, neglect, dropping the ball, failing to follow through, until his condition got so bad that somebody was finally alarmed into taking action and he got his meds. 

Unfortunately for Leavitt and anybody else who is HIV-positive and confined in prison, under the ridiculous interpretation of the 8th Amendment by the U.S. Supreme Court, prison officials and health care workers are totally immune from liability for malpractice, incompetence, and negligence in the provision of health care to prisoners.  In order to establish liability, a prisoner has to demonstrate that there was deliberate indifference to his serious medical condition.  Feckless bumbling is not enough, even though it leads to serious medical complications for the inmate.

In this case, that meant that CMS, its employees, and the Maine State Prison were all let off from liability, the court of appeals sustaining Judge Woodcock's grant of summary judgment as to them.

But Mr. Cichon was not so lucky.  He was a shareholder of the company that had the contract to provide health care at York County Jail while Leavitt was confined there, and with his own license as a physician's assistant he provided the on-site service, under which he was supposed to refer inmates to the hospital in case they needed a doctor's services.  (According to the court, Cichon was disciplined for providing medical treatment without a license on occasion, and had his physician's assistant license suspended at various times for failing to meet standards.)  As a shareholder, he had the incentive to avoid expenses of providing HIV meds, since all costs of providing health care to inmates were supposed to be covered under his contract with the jail.  And if, as Leavitt alleged, Cichon denied meds to save money even though he knew that Leavitt was HIV+ and had been taking anti-retrovirals before his incarceration, his conduct may have fallen within the "deliberate indifference" rule.

The court's opinion is particular significant because it reviews in some detail the evidence that has accumulated about the dangers of interrupting anti-retroviral treatment for those who were undergoing such treatment.  Not only can it result in the development of drug resistance, but it can cause significant detriment to the individual over the long term, even if eventual restoration of treatment has a short-term effect of reviving their immune response.  In the case of Leavitt, the interruption of treatment led him to become symptomatic, including development of oral thrush and various other symptoms of immune depression, but his immune system bounced back when treatment was belatedly resumed.  Based on this, the defendants argued that he had not suffered any serious consequence from the interruption of medication.   The court found this assertion contestible, based both on the symptoms Leavitt experienced during his forced drug hiatus as well as statistical evidence that long-term prognosis is significantly harmed by such treatment interruptions.  The court's findings as to this can be very useful for others who find themselves in similar situations.

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