Friday, January 28, 2000
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Judge: Inmate should get treatment Magistrate says denial in hepatitis case based on cost
By MARK SCHAVER, The Courier-Journal

C-J Photo: Travis Doster
 
A federal magistrate harshly criticized the Kentucky Department of Corrections yesterday for denying medical treatment to a prisoner with life-threatening hepatitis C.
"Money, not medicine, was the driving force behind the department's decision," Magistrate Judge C. Cleveland Gambill wrote in an 88-page finding of facts about the case.
Gambill said he doubts inmate Michael Paulley will survive without treatment and should get it as soon as possible.
Gambill recommended to U.S. District Judge John G. Heyburn II, who is in charge of the case, that he order the Corrections Department to let Paulley get treatment. Heyburn must issue the final decision, although judges often defer to their magistrates.
The $18,000 treatment would cost the department nothing; Paulley is an Army veteran and his benefits would pay for it.
The Corrections Department, however, won't let him go to the Veterans Affairs Medical Center in Louisville for treatment or give the drugs to him at the Luther Luckett Correctional Complex in Oldham County. The state says that because Paulley has cirrhosis of the liver, the treatment would do more harm than good.
It also says Paulley doesn't qualify under criteria it drafted for treating inmates with hepatitis C. Gambill, however, said these reasons are a pretext for denying Paulley the drugs. Gambill said the department doesn't want to pay for treating all inmates with the disease.
He said the department has an unwritten policy of denying all inmates treatment for hepatitis C, which can damage the liver and infects an estimated 5,000 of the state's 15,000 inmates.
Paulley, who is serving a 20-year sentence for burglary and being a persistent felon, sued the Corrections Department in U.S. District Court last year. He wants to force the department to treat him with drugs recommended by Dr. Bennet Cecil of the Veterans Affairs Medical Center.
Paulley is also demanding unspecified damages for the violation of his civil rights, but that wasn't part of yesterday's ruling.
Gambill said the department's fears about the cost of treating inmates with hepatitis C -- which the state has estimated could hit $75 million, more than three times its medical budget -- are overstated. Only 22 inmates know they are infected, and most will never know, he said.
"The probability that a measurable fraction of Kentucky's infected prisoners will demand treatment is exceedingly small," he wrote.
Carol Czirr, a spokeswoman for the Corrections Department, declined to comment because officials have not yet seen the recommendation.
One of Paulley's attorneys, Alan S. Rubin, said both sides will have 10 days to respond to Gambill's recommendation, and then it will be up to Heyburn to rule. Rubin said he didn't know how long that will take.
Cecil, who has become an activist on behalf of prisoners with hepatitis C since treating Paulley, said he was proud of Gambill's ruling.
"This will make it much easier for people in prison to get treatment that they need," Cecil said.
One person who fared especially poorly in Gambill's opinion was the state prison system's new medical director, Dr. Richard Kimbler, who was not involved in the original decision to deny Paulley treatment. Kimbler was the department's only witness at a hearing before Gambill in December on Paulley's request for an injunction ordering the department to give him treatment.
Gambill said he was bewildered by the way the department presented its defense, and he said Kimbler's "credibility is highly suspect." He said Kimbler hadn't even reviewed Paulley's entire medical record before testifying.
"Dr. Kimbler unfortunately was so repeatedly evasive and biased in his testimony at the injunction hearing that the Magistrate Judge attaches no weight to that testimony," he wrote.
Gambill said Kimbler's testimony about Paulley's history of depression and his past refusals to take other medication -- two reasons the department offered for denying Paulley treatment -- were also misleading.
"This decision to permit Paulley to face the unnecessary risk of a premature death was made for purely administrative reasons," Gambill wrote.
Gambill praised Cecil, who he said was the most experienced doctor in Louisville treating hepatitis C.
"Dr. Cecil certainly is not the wild-eyed radical that the department has unfairly attempted to portray him as being in this case," he wrote. "To the contrary, Dr. Cecil is highly credible and highly compassionate."