Prisoner Has No Eighth Amendment Right to Protease Inhibitors

By T. Howard Stone, J.D., LL.M.
Assistant Professor and Research Director,
Program on Legal & Ethical Issues in Correctional Health
Institute for the Medical Humanities, University of Texas Medical Branch

In yet another case demonstrating the remarkable and uncritical discretion accorded to prison officials in making health-related decisions, the Tenth Circuit Court of Appeals recently affirmed a lower court decision dismissing a prisoner's Eighth Amendment claim over prison officials' failure to provide the prisoner with protease inhibitor treatment for his HIV condition. Perkins v. Kansas Department of Corrections, 165 F.3d 803 (10th Cir. 1999). In this case, however, the stakes are especially high for all parties involved, including the prisoner-patient, prison officials, and prison-based health professionals. While clearly the prisoner's life, health and well-being are at stake, both prison officials and prison-based health professionals are loath to have health care decisions micro-managed by persons outside prison, be they courts, legislators or other interested persons. HIV and AIDS-related health care can be prohibitively expensive, and with fixed resources, providing prisoners with HIV and AIDS-related care has often come at the expense of providing health services to prisoners with other conditions. With such high stakes, it is not clear that these health care decisions should continue to escape court scrutiny.

Under the Eighth Amendment of the U.S. Constitution—which prohibits the infliction of cruel and unusual punishments upon persons convicted of crimes—prison officials may not be deliberately indifferent to the health care needs of prisoners. Estelle v. Gamble, 429 U.S. 97 (1976) ("Estelle"). Prisoners who claim an Eighth Amendment violation as to health care needs must demonstrate both an objective serious medical need as well as prison officials' subjective culpable state of mind in denying the prisoner medical care. Negligence will not suffice to raise an Eighth Amendment claim. HIV/AIDS among prisoners has been consistently identified by courts as a serious medical need; the crucial test for an Eighth Amendment claim has therefore been whether prison officials knew about a prisoner's HIV/AIDS condition and whether they disregarded the prisoner's need for health care.

Unfortunately, paucity is the most fitting description of the Tenth Circuit court's analysis of this prisoner's Eighth Amendment claim, and no new insight is gained into how an Eighth Amendment claim should proceed with respect to one of the most challenging and deadly diseases to confront prisoners and prison officials. In little more than two paragraphs, the court blithely repeated the Estelle admonishment that mere disagreement with a prescribed course of treatment for the prisoner's alleged medical condition does not support an Eighth Amendment claim. The court also observed that prison officials were treating the prisoner, allegedly suffering from AIDS, with AZT and 3TC (two common nucleosides used in the treatment of HIV-related conditions). We can only assume that the court was satisfied that the prisoner's medical need was not ignored by prison officials, and that the court was satisfied as well with the course of treatment offered to the prisoner.

Yet given the complexity of HIV/AIDS care (which is, of course, vastly unlike setting a broken finger or prescribing analgesics for a head ache), the high rate of prevalence of the disease among prison populations (the rate of AIDS among prisoners is six times the rate of AIDS among non-prison populations), and perhaps the perverse disincentive to provide appropriate HIV/AIDS care due to its high cost, it may be prudent for courts to occasionally eschew the traditional discretion accorded to prison officials, especially when lives hang in the balance. Most importantly, however, it should have been recognized by this court that the standard of care for persons with symptomatic HIV-related conditions is, in fact, the provision of a combination of three drugs, not two, as prison officials were providing the prisoner in this case; moreover, one of the three drugs used must be a protease inhibitor, exactly what the prisoner in this case was claiming. Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report: Report of the NIH Panel to Define Principles of Therapy of HIV Infection and Guidelines for the Use of Antiretroviral Agents in HIV-Infected Adults and Adolescents (1998). The court's failure to acknowledge this fundamental aspect of HIV/AIDS care is simply irresponsible. To suggest that the prisoner's claim is simply a disagreement about the course of his treatment, one best pursued if at all as a negligence claim, ignores the fact that malpractice claims by prisoners are impracticable to pursue, given the need for expensive expert witnesses and the poor resources of prisoners. Most tragic of all, the court's decision helps to ensure that for prisoners who suffer from HIV/AIDS, a sentence of incarceration may very well turn out to be a sentence of death.

03/16/99