On January 21, 2003 , seven people incarcerated in Michigan prisons filed a class action lawsuit against officials in the Michigan Department of Corrections (MDOC), and against Correctional Medical Services, Inc. (CMS), the company contractually obligated to provide medical care to MDOC inmates.  The suit was brought by one woman and six male inmates who claim that they, and possibly as many as 14,000 other inmates, are being seriously harmed by the defendants’ failure to adequately test and treat them for Hepatitis C.  Hepatitis C is often a life threatening disease and a burgeoning public health care crisis that the surgeon general has declared a national epidemic.

What is Hepatitis C?[1]

Hepatitis C, also called “non-A, non-B Hepatitis,” is a blood-borne illness caused by the Hepatitis C virus (or “HCV”).  First discovered in 1988, HCV is now the most common chronic blood-borne viral infection in the United States .  According to conservative estimates, 3.9 million Americans, or 1.8% of the population, have been infected with HCV.[2]  The disease now causes 8,000 to 10,000 deaths each year in the United States , a death rate that is expected to triple in the next two decades.[3]

Until its discovery, the Hepatitis C virus was often transmitted through blood transfusions. [4]  Once blood banks began to screen for HCV in 1990, however, that method of transmission fell off.  Today, HCV is most often passed between intravenous drug users who share needles.  The virus can also be transmitted through sexual contact—sexual transmission is most common among promiscuous people.  Infected mothers also occasionally transmit HCV to fetuses.  Perhaps most frighteningly, 10% of all people infected with HCV show no risk factors for the disease; it is unclear how they contracted it.[5]  Some of these may have contracted the disease through exposure to the blood of infected people—for example, by sharing a toothbrush or razor with an HCV-positive person.[6]

The Hepatitis C virus infects and damages the liver, an organ that takes part in the body’s energy production, detoxification, immune functions and digestion.  A small portion (about 15-25%) of people who contract HCV resolve their infection without further problems.  All others become chronically infected.  Once chronic infection sets in, it is almost never cleared without treatment.  Of people who are chronically infected with the HCV virus, a majority (70%) develop chronic liver disease.  Some chronically infected people eventually develop irreversible cirrhosis of the liver, end-stage liver disease or liver cancer.[7]

Cirrhosis of the Liver: Hepatitis C is one of the leading causes of cirrhosis.  In a person who has cirrhosis of the liver, scar tissue begins to replace normal liver tissue, blocking the flow of blood through the organ and preventing it from working properly.  According to the National Digestive Diseases Information Clearinghouse, cirrhosis may lead to numerous complications, some of which can be deadly.  The complications include: ascites and edema, the accumulation of water in the abdomen and leg; bruising and bleeding; jaundice; itching; gallstones; toxins in the blood or brain, which can dull mental functioning and cause personality changes, coma, and even death; increased sensitivity to medication and its side effects; portal hypertension; varices, a condition characterized by blood from the intestines and spleen backing up into blood vessels in the stomach and esophagus (these vessels may burst); infections in other organs; ascites, when fluid in the abdomen becomes infected with bacteria normally present in the intestines; and kidney dysfunction and failure.  Cirrhosis is the eighth-leading cause of death by disease in the United States , taking about 25,000 lives each year.[8]

Liver Cancer:  Both Hepatitis C itself and cirrhosis of the liver, which is caused by HCV, can lead to liver cancer.  According to the CDC, people who suffer from chronic Hepatitis C infections have a 1-4% chance of developing liver cancer over a period of several decades.  For those who suffer from cirrhosis, however, the rate may be as high as 1-4% per year.[9]  Only about 10% of all liver cancer patients live longer than five years after the disease is diagnosed.[10]

Liver Transplants:  A Hepatitis C infection can eventually damage a person’s liver so badly that it cannot function at all.  The CDC reports that HCV-associated liver disease is the most frequent indication for liver transplantation among adults,[11] accounting for almost half of the approximately 4,000 transplants performed each year.[12]  

Hepatitis C: “An Awakening Giant”

Hepatitis C chronically infects an estimated 170 million people worldwide (three percent of the world’s population), with as many as 180,000 new cases occurring each year.  Health experts agree that Hepatitis C will become an increasingly expensive and deadly disease over the next several decades. 

In the United States , many HCV infections occurred through blood transfusions before 1990, when the disease was finally identified and blood banks began screening for HCV.  Death from HCV-caused liver disease often occurs more than 20 years after initial infection, however, so public health experts expect the death rate from Hepatitis C to triple over the next two decades.[13]  Moreover, most people with chronic HCV infections have yet to be diagnosed.  Researchers expect many of these undiagnosed carriers to come to the attention of medical personnel within the next decade.  Doctors at the National Institutes of Health therefore predict a fourfold increase in the number of adults diagnosed with chronic Hepatitis C between 1990 and 2015.[14]

The burgeoning Hepatitis C problem is likely to be very expensive.  The CDC estimated in 1998 that the United States already suffered medical and work-loss costs in excess of $600 million each year (not including the cost of liver transplants).  More importantly, perhaps, the researchers calculated that 8,000-10,000 Americans die each year from the disease.[15]

A recent study published in the American Journal of Public Health, however, predicts that current losses will be dwarfed by the costs the country is likely to experience from HCV-related illness between 2010 and 2019.  The paper reports that during that decade, 165,000 people will die from HCV-caused liver disease and another 27,200 will die from liver cancer related to Hepatitis C.  The researchers also predict that the United States will experience HCV-related medical care costs exceeding $8.9 billion from 2010 through 2019.  In all, the authors of the study calculated that the nation will suffer a societal cost of $21.3 to $54.2 billion, accounting for premature deaths and lost work productivity caused by the disease.  According to the researchers, the “results confirmed that Hepatitis C may be an awakening giant.”[16] 

Because Hepatitis C becomes more expensive to treat when it is not dealt with in its early stages, the best way for the nation to avert some of the costs associated with HCV is to undertake a campaign to diagnose and treat carriers of the virus.  As discussed more fully in Part IV, below, prisons are excellent places to implement such a strategy because a large proportion of Hepatitis C sufferers pass through prisons at some point during their lives.  The United States and Michigan Constitutions also require such humane treatment of inmates.  

Hepatitis C Diagnosis and Treatment

Detecting HCV infection can be a complicated procedure.  Treating it is also difficult, especially for more acute cases.

Diagnosing Hepatitis C

When HCV is present in a patient’s blood stream, it is detectable in several ways.  Within a few weeks of initial exposure, RNA (genetic material) from the virus can usually be detected.  Infected patients also develop antibodies as their bodies attempt to combat HCV; this reaction can be detected by enzyme immunoassay (EIA) tests with increasing levels of accuracy as time goes on.  Finally, within a few months of infection, patients begin to develop liver cell damage—often, but not always, manifested by high serum alanine aminotransferase (ALT) levels.[17]

At a recent conference of experts on Hepatitis C at the National Institutes of Health, the participants identified several methods of testing for the disease, and evaluated their relative merits.  The experts looked at the following options:

  • Testing for serum ALT levels.  Doctors may gain information about HCV by looking for the presence of elevated ALT levels.  This method is the cheapest and least invasive, making it attractive in some ways.  Serum ALT level testing, however, is insensitive and subject to error.  This is due to the fact that some people infected with the Hepatitis C virus do not have elevated ALT levels, and because ALT levels can fluctuate considerably over time.

  • Serologic Assays.  Hepatitis C infection can also be detected by looking for the presence of anti-HCV antibodies in a patient’s blood.  These tests, called EIA tests, are highly sensitive in most cases, and are relatively inexpensive.  False-positive and false-negative results are both very rare, and many medical experts consider a negative EIA test sufficient to rule out a Hepatitis C diagnosis.  The NIH conference participants recommended this method as an initial test for patients with chronic liver disease of some kind.

  • HCV RNA Assays.  Doctors should confirm a possible Hepatitis C diagnosis by doing a test to look for the presence of the virus’ genetic material in the patient’s blood.  Experts recommend that this test always be performed to confirm positive serologic tests, because an HCV RNA test will rule out false-positive results and helps to provide prognostic information for patients that are HCV-positive.[18]

  • Liver Biopsy.  The experts noted that only a liver biopsy can provide certain important information about the severity of a patient’s liver disease, allowing a patient to make a more informed decision about treatment.[19]

The Centers for Disease Control recommend that public health officials perform diagnostic tests for anyone who presents a risk factor for HCV infection. [20]  This would include many among the Michigan prison population.

Treating Hepatitis C

The CDC reports that therapy for Hepatitis C is a rapidly changing area of medical science; new drugs for the treatment of chronic HCV infection are presently being tested.[21]  Nonetheless, it is possible to make several generalizations about treating Hepatitis C.

The CDC recommends that all HCV-positive patients be evaluated for chronic liver disease.  In patients with fairly severe symptoms or progressed disease, experts recommend antiviral drug therapy.  The most commonly used drug is alpha-interferon.  Clinical trials have found that interferon has some success in normalizing serum ALT levels and suppressing the amount of detectable HCV RNA in patients’ blood streams.  Between 15-25% of people treated with the drug have a sustained response to the treatment—that is, they show improvements in ALT levels or other indicators of HCV infection for more than one year.  The remaining people either show no response to interferon at all, or relapse when treatment is stopped.[22]

The FDA has also approved a new drug therapy for Hepatitis C that involves the use of interferon and another drug, ribavirin, in combination.  This new therapy was more successful than interferon alone in clinical trials, boosting patients’ sustained-response rate to 40-50%.  A group of experts at the NIH conference recommend that doctors employ the combination treatment. [23]

The drug therapies have several drawbacks, including flu-like symptoms, fatigue, bone marrow suppression and neuropsychiatric effects such as apathy, irritability and depression.[24]   The drug therapies are usually not effective for patients with acute Hepatitis C or those with serious complications like cirrhosis,[25] so drug intervention early in the disease is medically advisable.

Cirrhosis, which can be caused by HCV infection, cannot be reversed.  Drug treatments can halt or delay further liver deterioration in Hepatitis C patients if combined with a healthy diet and abstinence from alcohol and drugs.  Cirrhosis itself also has many dangerous side-effects, each of which has its own symptoms and requires its own treatment, often with drug therapy, and sometimes including surgery.[26]

Complications from cirrhosis may become so severe, or the liver may become so damaged by scarring, that the patient requires a liver transplant.  According to the United Network of Organ Sharing, in 1996 a transplant patient faced about $314,600 in costs in the first year of treatment, and $21,900 each year thereafter.[27]  Of course, by treating the disease early in its progression, the need for more-expensive treatments like transplantation may be avoided.

Hepatitis C in Prison

Hepatitis C is a major problem in U.S. prisons; the prevalence of the disease in inmates is many times higher than in the population in general.  Because of the burgeoning social problem with HCV infection, and because prisons represent the frontline of the Hepatitis C battle, medical experts recommend that prison systems undertake programs to diagnose and treat prisoners. 

The Prevalence of HCV Infection Among Prisoners

A recent report to Congress by the National Commission on Correctional Health Care found a 17.0-18.6 percent prevalence of Hepatitis C infection among U.S. prisoners.  That would be 9 to 10 times higher than the prevalence in the population in general.  The Commission stated, however, that the estimate is likely to be quite low, given that studies conducted in individual prisons have found infection rates of 30-40%.[28]  These higher figures are confirmed by the CDC, which reports that between 15 and 40% of prisoners may be infected.[29]  Studies in California prisons show that over 41% of all prisoners in that state are infected with Hepatitis C.[30]  Other states have rates almost as bad.[31]

There does not appear to be any specific data on the prevalence of Hepatitis C in Michigan ’s prisons.  If Michigan conforms with the national estimate of a 15-40% prevalence, however, MDOC prisons likely contain at least 7,275 people infected with HCV, and may house more than 19,400.

Some researchers suggest that the high prevalence of HCV infection among prisoners derives from the confluence of two circumstances: Hepatitis C is very common among injection drug users, and a large proportion of prison inmates have a history of injection drug use.[32]  No matter what the cause, though, prisons clearly represent a major locus of HCV incidence.  A large percentage of all people infected with HCV pass through prisons at some point.  The National Commission on Correctional Health Care estimates that 1.3-1.4 million people released from prison in 1997 were infected with Hepatitis C.  This would mean that 29-32% of all people in the U.S. infected with the virus served time in a correctional facility during that year.[33]  As many as 68% of people infected with HCV may have served time at some point.[34]

Public Health Experts Recommend Testing and Treatment for Prisoners

The fact that so many people infected with HCV pass through prisons has prompted many public health experts to recommend that prisons institute proactive programs to test prisoners for HCV and treat those who suffer from the disease.  As one set of researchers put it, “Correctional facilities are critical settings in which to provide interventions for the prevention and treatment of infectious diseases.  Such interventions stand to benefit not only the inmates and their families and partners, but also the public health of the communities to which the vast majority of inmates return.”[35]

The experts who convened at the NIH in the Summer of 2002 recommended that prison officials implement programs to “prevent, diagnose, and treat HCV infection” among inmates.[36]  The National Commission on Correctional Health Care, too, recommended to Congress that prisons improve education of inmates about Hepatitis C and its spread through injection drug use and provide antiviral treatments for infected prisoners.[37]  Even the Federal Bureau of Prisons recommends screening of at-risk prisoners and prescribes various treatment guidelines for federal prisons.[38] 

Current Policy in Michigan Prisons

The Michigan Department of Corrections (MDOC) is not doing enough to diagnose and treat prisoners who carry Hepatitis C.  This failure, if it continues, will mean that numerous inmates suffer unnecessarily, and will contribute to a growing public-health crisis outside the prison walls.

Every prisoner’s blood is drawn and analyzed when he or she enters the MDOC system.  Blood samples are used to establish prisoners’ ALT levels at the time of their admittance.  MDOC Guidelines for HCV Treatment, however, state that MDOC will only test prisoners for HCV infection if they: (1) received blood products before 1990, or (2) were intravenous drug users, but then only when the prisoner has increased ALT levels as determined by the blood draw.[39]  That policy is clearly insufficient to catch many of the HCV infections that pass through prisons each year. 

The Federal Bureau of Prisons, based on medical evidence from the CDC and NIH, among other sources, recommends testing of all inmates that demonstrate elevated ALT levels of unknown etiology or signs and symptoms of hepatitis or any of the following:

  • History of ever injecting illicit drugs

  • Recipient of blood transfusion or organ transplant before 1992

  • Recipient of clotting factor transfusion prior to 1987

  • Receiving chronic hemodialysis: screen ALT levels monthly and anti-HCV antibodies semiannually

  • Percutaneous exposures to HCV-positive blood

  • History of tattoos or body piercings received while in jail or prison.[40]

MDOC’s guidelines fall well short of this standard. Even if it followed its own policy to the letter, the Department would not test any prisoners who fall into many of these categories. Also, it would test only a small proportion of intravenous drug users, the population of individuals most likely to be carrying HCV. Finally, it would not test many prisoners who have elevated ALT levels, nor would it re-screen at-risk prisoners after their initial blood draw to get later ALT level readings. All of these steps are necessary to properly screen for and diagnose HCV infection.

Moreover, even when it provides Hepatitis C testing, MDOC has in the past failed to inform some inmates of their HCV positive status. The Department has also often failed to provide further testing to determine the severity of the disease and other important facts to prisoners that test positive for the virus. The effectiveness of the limited testing MDOC does perform is therefore further restricted by the Department’s failure to take elementary follow-up steps.

Furthermore, despite the recommendations of the National Commission on Correctional Health Care and the Centers for Disease Control, MDOC does not provide education about Hepatitis C to inmates.  Prisoners do not learn about the risk factors for HCV, nor are they informed of its prevalence within the prison system. 

The CDC notes that prisons are an important front on which Hepatitis C infection can be addressed through education:

To identify persons who should be counseled and tested for HCV, health care professionals in primary care, specialty, and public health settings should routinely question patients about risk factors for infection, including history of injecting drug use. Current injection drug users are often not seen in primary care or other traditional health care settings. However, targeted outreach in other settings may be particularly effective in reaching this population. These settings include correctional institutions…[41]  

MDOC’s lack of testing thus represents an important missed opportunity for intervention in a growing public health problem.

The Department’s failures are very dangerous for prisoners and imperil the community outside the prison walls.  Prisoners who are infected with untreated Hepatitis C are at an increased risk of developing harmful, and potentially life threatening, complications from HCV, including cirrhosis and cancer.  Furthermore, people infected with the virus who are unaware of their HCV positive status are more likely to unknowingly transmit the disease to others within the prison system and, once they are released (the great majority of prisoners are eventually released), in the general population.  

The Eighth Amendment and Prison Medical Care

The Eighth Amendment to the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In 1976, in Estelle v. Gamble, the Supreme Court ruled that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’” and is thus “proscribed by the Eighth Amendment.”[42]  According to the court, the government has an obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.  In the worst cases, such a failure may actually produce physical “torture or a lingering death” … the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose ... The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency.[43]  

Courts have subsequently ruled that medical deprivations that pose a “substantial risk of serious harm” implicate prisoners’ Eighth Amendment rights.  If a prison official has a “sufficiently culpable state of mind”—that is, if he or she knows of and disregards an excessive risk to inmate health or safety—the official has violated the prisoner’s constitutionally-guaranteed rights.[44]

The Eighth Amendment duties of state officials apply to any person acting “under color of state law.”[45]  A “physician who is under contract with the State to provide medical services to inmates at a state-prison hospital, even on a part time basis, acts under color of state law … when he treats an inmate.”[46]  Thus, private individuals or corporations that contract with the state to provide medical care to prison inmates must also follow the strictures of the Eighth Amendment.

* Student, University of Michigan Law School and Gerald R. Ford School of Public Policy.

[1] This report provides only general information gathered from public documents and medical literature, and is not designed or intended to replace the advice of a licensed physician.

[2] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”  Summer, 200.

[3] National Foundation for Infectious Diseases, “Hepatitis C Fact Sheet.”  Available at http://www.nfid.org/factsheets/hepc.html.

[4] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.” 

[5] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”  MMWR, October 16, 1998 , Vol 47, p. 1.

[6] Worman, Howard J., “Hepatitis C,” (2002), available at http://cpmcnet.columbia.edu/dept/gi/hepC.html.

[7] Ibid; Centers for Disease Control, “National Hepatitis C Prevention Strategy.” 

[8] National Digestive Diseases Information Clearinghouse, “Cirrhosis of the Liver.”  Apr., 2000.  NIH Pub. No. 00-1134, available at http://www.niddk.nih.gov/health/digest/pubs/cirrhosi/cirrhosi.htm.

[9] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[10] American Society of Clinical Oncology website, http://www.oncology.com.

[11] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[12] National Foundation for Infectious Diseases, “Hepatitis C Fact Sheet.”

[13] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[14] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002,” June 10-12, 2002 (revision made Sept. 12, 2002 ).

[15] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[16] Wong, John B., Geraldine N. McQuillan, John G. McHutchison, Thierry Poynard, “Estimating Future Hepatitis C Morbidity, Mortality, and Costs in the United States .”  American Journal of Public Health, Vol. 90, Issue 10, Oct. 2000, p. 1562.

[17] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.” Issued June 10-12, 2002 (revision made September 12, 2002 ).

[18] Herrine, S.  “Approach to the Patient with Chronic Hepatitis C Infection,” Annals of Internal Medicine, May 21, 2002 ; 135: 747-757.

[19] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.”

[20] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[21] Ibid.

[22] Ibid.

[23] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.”

[24] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[25] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002”;  Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[26] National Digestive Diseases Information Clearinghouse, “Cirrhosis of the Liver.”

[27] Cited by California Pacific Medical Center , “Financial Matters: Liver Transplant Costs.”  Available at http://www.cpmc.org/advanced/liver/patients/topics/finance.html.

[28] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress,” Vol. 1, March 2002.

[29] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[30] Ruiz, J.D., and J. Mikanda, “Seroprevalence of HIV, Hepatitis B, Hepatitis C, and Risk Behaviors

Among Inmates Entering the California Correctional System,” California Department of Health Services,

Office of AIDS, HIV/AIDS Epidemiology Office, March 1996.

[31] Maryland : 38%; Rhode Island : 33%; Washington: 30-40%.  See Hammett, Theodore M., Patricia Harmon and William Rhodes, “The Burden of Infectious Disease Among Inmates and Releasees from Correctional Facilities.”  Printed in National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress,” Vol. 2, March 2002.

[32] Ibid.

[33] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress.”

[34] Hammett, Harmon and Rhodes , “The Burden of Infectious Disease Among Inmates and Releasees from Correctional Facilities.”

[35] Ibid.

[36] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.” 

[37] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress.”

[38] Federal Bureau of Prisons, Treatment Guidelines for Viral Hepatitis.

[39] Michigan Department of Corrections’ HCV Treatment Guidelines, issued March 29, 1999 .

[40] Federal Bureau of Prisons, Treatment Guidelines for Viral Hepatitis.

[41] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.” 

[42] 429 U.S. 97, 104.

[43] Ibid. at 103.

[44] See Farmer v. Brennan, 511 U.S. 825 (1994); Napier v. Madison Cty., 238 F.3d 739 (6th Cir. 2001); Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000).

[45] Doe v. Wiggington, 21 F.3d 733, 738 (6th Cir. 1994).

[46] West v. Atkins, 487 U.S. 42, 48 (1988).