DocketNumber： 1:88-CV-2185-CAM
Citation Numbers： 716 F. Supp. 601
Judges： Moye
Filed Date： 7/5/1989
Status： Precedential
Modified Date： 1/13/2023
United States District Court, N.D. Georgia, Atlanta Division.
Robert Bruce Hawley, pro se.
John C. Jones, Office of State Atty. Gen., Atlanta, Ga., for David C. Evans, Com'r, Georgia Dept. of Corrections and Georgia Dept. of Corrections.
MOYE, Senior District Judge.
The above-styled action is brought by three prisoners in the Georgia Corrective System who have tested positive for antibodies to the Human Immunodeficiency Virus (hereafter "HIV") which is the precursor to the Acquired Immune Deficiency Syndrome (hereafter "AIDS"). Said action is before this court on cross motions for summary judgment, the plaintiffs' motion for clarification, the plaintiffs' motion to compel discovery, the plaintiffs' motion for reconsideration of this court's order dated April 25, 1989, and the defendants' motion to transfer plaintiffs Hawley and Mitchell from the Augusta Correctional and Medical Institution. For the reasons stated below, the defendants' motion for summary judgment is GRANTED, the defendants' motion to transfer plaintiffs Hawley and Mitchell is GRANTED, the plaintiffs' motion for summary judgment is DENIED, the plaintiffs' motion for clarification is DENIED, the plaintiffs' motion to compel is DENIED *602 and the plaintiffs' motion for reconsideration is DENIED.[1]
The plaintiffs in this action are prisoners in the Georgia Prison System. All three have tested HIV positive. However, plaintiff Mitchell is in a more advanced degree of sickness. The main thrust of the plaintiffs' complaint is a prayer for injunctive relief. They are requesting adequate and up-to-date treatment from the Georgia Department of Corrections, or, in the alternative, the right to be seen by a private physician of their own selection. They are also requesting damages, alleging that the defendants have committed acts and omissions amounting to that deliberate indifference to serious medical needs constituting cruel and unusual punishment under the Eighth Amendment.
The plaintiffs are requesting a wide variety of drugs and medical treatments, many of which are experimental and have not been approved by the Food and Drug Administration (hereafter "FDA"), claiming they have the constitutional right to such treatment either through the prison medical facilities or under the care of private physicians of their own selection. The plaintiffs claim they are financially able to employ such private physicians.
One drug that the plaintiffs are requesting, which was initially denied them by the prison authorities, is Zidovudine, more commonly known as "AZT". AZT has been approved by the FDA and is the only antiviral agent that has been clearly shown to improve immune function in AIDS patients (see attachment "E"). Its availability to the plaintiffs is therefore of central importance to this law suit.
The attitude in the scientific community towards AZT is one of uncertainty. Experts disagree about who should receive the drug, at what stage patients should be treated with it, and proper doseage. This court has received materials that delineate the policies of the Center for Disease Control (hereafter "CDC"), the Georgia Department of Human Resources (hereafter "GDHR"), and the FDA (see attachments "A" through "G", the plaintiffs' motion for summary judgment, and the defendants' supplement to cross motion for summary judgment). There are two things that one can safely conclude about the literature received: 1) the policy for administering AZT and other treatment for HIV and AIDS patients changes frequently and as yet no one in the medical community is sure of what is protocol; and 2) AZT can be highly toxic to some patients and should be used conservatively, if at all.
The Georgia Department of Corrections has a uniform policy under which it currently administers AZT to patients that have symptomatic HIV infection and have an absolute CD4 lymphocyte count of less than 200/mm3 in the peripheral blood, and to patients with a history of cytologically confirmed pneumocystis carinii pneumonia and an absolute CD4 lymphocyte count of less than 200/mm3 in the peripheral blood. The plaintiffs have not disputed that the above is indeed the uniform policy of the Georgia Department of Corrections. At the court's request, not order, the plaintiffs were transferred to Augusta Correctional Medical Institution for testing and were offered treatment with AZT, even though the patients had not met the state standard mentioned above. Two of the patients refused such treatment, one accepted.
The Georgia Department of Correction's AZT policy is not significantly dissimilar to the standards of the FDA, the CDC and the GDHR. There are some differences, for instance, in the interpretation of the word "symptomatic" (compare attachments "F" and "G"). However, such differences are to be expected because, as already mentioned, what is acceptable with AZT treatment is not immutable, but rather something *603 that is indeterminate and ever-changing.
To state a claim of constitutional magnitude for the denial of medical care and treatment, the plaintiffs must show that the defendants were deliberately indifferent to their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251, 260 (1976). In light of the facts of the instant case, it can hardly be said that the Georgia Department of Corrections has been "deliberately indifferent" to the serious medical needs of the plaintiffs. Its policy for treatment of HIV positive patients is similar to that of other reputable national and local agencies. Although its policy differs in some ways from the standards of other reputable agencies, the court in this case is not empowered to delve into the particulars and intricacies of modern medicine or to make narrow distinctions on debatable interpretations of what should be acceptable in the medical community. This court's powers are not enlarged by reason of the growing public awareness of the impact of AIDS on the national community. What this court can and must decide is whether the Department of Correction's medical policy is constitutionally acceptable. In the judgment of this court the applicable medical policy substantially conforms to currently acceptable medical practice. Therefore the plaintiffs do not state a claim of constitutional magnitude.
Far from their actions being "repugnant to the conscience of mankind" pursuant to the Estelle v. Gamble standard, the defendants have demonstrated they are willing to pursue the modern medical practice relating to the treatment of HIV patients consistent with their roles as custodians of unwilling prisoners. The medical care provided a prisoner is not required to be "perfect, the best obtainable, or even very good." Brown v. Beck, 481 F.Supp. 723, 726 (S.D.Ga.1980). The Supreme Court in Estelle v. Gamble specifically states that not "every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment". 429 U.S. at 105, 97 S.Ct. at 291. Clearly, negligence is not enough.[2] Negligence, without deliberately indifferent or wanton conduct, is not cruel and unusual punishment. Negligence by a prison medical officer may constitute actionable medical malpractice. 429 U.S. at 108, 97 S.Ct. at 293. However, that is not the nature of this law suit.
The plaintiffs are also asserting the right to: 1) a private physician; and 2) through and by that physician (or, in the alternative, through and by the medical facilities at the Georgia Department of Corrections) experimental and novel forms of treatment of which there appears to be some evidence of remedial, or at least therapeutical, value. This court holds that the plaintiffs are not entitled, as a matter of constitutional right, to either.
The treatment of patients in prison is "traditionally the exclusive prerogative of the state". Ort v. Pinchback, 786 F.2d 1105 (11th Cir.1986); Morrison v. Washington County, Ala., 700 F.2d 678 (11th Cir.1983). Some states have statutes allowing prisoners to bring in private physicians. Georgia does not have such a statutenor is Georgia constitutionally required to have such a statute. This court holds that reasonably restricting visits from private physicians is reasonably related to the legitimate concerns of institutional security. Newman v. State of Alabama, 559 F.2d 283 (5th Cir.1977) modified, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) cert. denied, 438 U.S. *604 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978) (Prison visitation regulations should be left to prison authorities, widely adapted to individual circumstances.) This does not mean that a prison may restrict access to a private physician in all circumstances. However, as long as Georgia's prison system is providing adequate medical care, the issue of whether or not to permit a prisoner to hire a private physician remains the "exclusive prerogative" of the state of Georgia. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3rd Cir.1979) (Where prison authorities prevent an inmate from receiving recommended treatment for serious medical needs, or deny access to a physician capable of evaluating need for such recommended treatment, constitutional standards have been violated.); West v. Keve, 571 F.2d 158 (3rd Cir. 1978).
The same can be said for the experimental drugs the plaintiffs are requesting. As long as Georgia's prison system is abiding by reasonable medical practices, the issue of whether to permit a prisoner to be treated with experimental drugs (many of which have not been approved by the FDA) is the "exclusive prerogative" of the state of Georgia. Moreover, jail authorities have a legitimate security concern in limiting the exposure of inmates to drugs. 612 F.2d at 761. It should also be noted that a prisoner's claim of inadequate medical treatment which reflects a mere disagreement with prison authorities over proper medical treatment, which is exactly the case at hand, does not state a claim of constitutional magnitude. Ferranti v. Moran, 618 F.2d 888 (1st Cir.1980); Massey v. Hutto, 545 F.2d 45 (8th Cir.1976).
This court holds that pursuant to Fed.R. Civ.P. 56(c) there are no genuine issues of material fact in the instant case. Therefore, as a matter of law, this court holds that the defendants' motion for summary judgment is GRANTED and the plaintiffs' motion for summary judgment is DENIED. As a result, the plaintiffs' motion for clarification, the plaintiffs' motion to compel, and the plaintiffs' motion for reconsideration are DENIED as this order has rendered said motions moot. Likewise, the defendants' motion to transfer plaintiffs Hawley and Mitchell from the Augusta Correctional and Medical Institution is GRANTED.
The clerk is directed to enter judgment against the plaintiffs and for the defendants. There is no award of costs in this action.
SO ORDERED.
Attn: Stephen L. Cole, Law Clerk
Dear Judge Moye:
In response to your inquiries concerning monitoring, treating, and immunizing inmates who are positive for antibodies to the Human Immunodeficiency Virus (HIV), the following information is offered.
The Federal Bureau of Prisons has established a policy that requires HIV antibody positive inmates to be evaluated by a physician at least once each month. These evaluations may or may not include a determination of T-4 count. The decision to monitor T-4 counts is a clinical decision made by the attending physician. Discussions with my colleagues have revealed that T-4 counts may generally be monitored every three to six months.
AZT treatments are provided at nearly all of our institutions. The decision to initiate AZT treatment is, again, a clinical decision. All Bureau of Prison physicians must, however, adhere to the treatment indications for AZT as outlined by the Food and Drug *605 Administration. The FDA recommends the use of AZT:
"for the management of certain adult patients with symptomatic HIV infection (AIDS and advanced ARC) who have a history of cytologically confirmed Pneumocystis carinii pneumonia (PCP) or an absolute CD4 (T-4 helper/inducer) lymphocyte count of less than 200/mm3 in the peripheral blood."
The Centers for Disease Control has been consulted with regard to immunizing HIV antibody positive patients. The following is a summary of their recommendations.
Immunization Asymptomatic patient Symptomatic patient DTP yes yes OPV no no IPV yes yes MMR yes yes HbCV yes yes Pneumococcal yes yes Influenza no yes Hepatitis B yes yes PPD yes yes
The Federal Bureau of Prisons strives to follow guidelines established by CDC in rendering care to inmates. The above guidelines, however, are not established within the written policies of the Bureau of Prisons. The only reference to immunization of HIV antibody positive inmates concerns pregnant females and states in the Health Services Manual:
Pursuant to current immunization guidelines and unless medically contraindicated, all sentenced female inmates of childbearing age (50 and below unless medically incapable of childbearing) should be offered and encouraged vaccination against measles, mumps, and rubella. Medical contraindications include existing pregnancy (perform pregnancy test if there is any doubt) or planned pregnancy within three months. All inmates who are to receive this live virus immunization, shall be tested for HIV antibodies prior to immunization. Those who are HIV antibody positive shall not receive the live virus immunization. Those immunized should be cautioned against becoming pregnant during the ensuing three months. Prior episodes of one or more of the three diseases does not constitute a contraindication.
If you have additional questions or concerns, please do not hesitate contacting me.
Sincerely,
(s) [Signature] Kenneth P. Moritsugu, M.D., M.P.H. Assistant Surgeon General Medical Director
*606
222 MMWR April 7, 1989
ACIP: General Recommendations - Continued
FEBRILE ILLNESS
The decision to administer or delay vaccination because of a current or recent
febrile illness depends largely on the severity of symptoms and on the etiology of the
disease.
Although a moderate or severe febrile illness is reason to postpone immunizations,
minor illnesses such as mild upper-respiratory infections (URI) with or without
low-grade fever are not contraindications for vaccination. In persons whose compliance
with medical care cannot be assured, it is particularly important to take every
opportunity to provide appropriate vaccinations.
Children with moderate or severe febrile illnesses can be vaccinated as soon as the
child has recovered. This precaution to wait avoids superimposing adverse effects of
the vaccine on the underlying illness or mistakenly attributing a manifestation of the
underlying illness to the vaccine.
Routine physical examinations or measuring temperatures are not prerequisites
for vaccinating infants and children who appear to be in good health. Asking the
parent or guardian if the child is ill, postponing vaccination in those with moderate or
severe febrile illnesses, and immunizing those without contraindications to vaccination
are appropriate procedures in childhood immunization programs.
VACCINATION DURING PREGNANCY
Because of a theoretical risk to the developing fetus, pregnant women or women
likely to become pregnant within 3 months after vaccination should not be given live,
attenuated-virus vaccines. With some of these vaccines particularly rubella, measles,
and mumps pregnancy is a contraindication. Both yellow fever vaccine and
OPV, however, can be given to pregnant women who are at substantial risk of
exposure to natural infection. When a vaccine is to be given during pregnancy,
waiting until the second or third trimester is a reasonable precaution to minimize
concern over teratogenicity. Although there are theoretical risks, there is no evidence
TABLE 7. Recommendations for routine immunization of HIV-infected children
United States
--------------------------------------------------------------------------------------
Known HIV infection
Vaccine Asymptomatic Symptomatic
--------------------------------------------------------------------------------------
DTP[*] Yes Yes
OPV[] No No
IPV[§] Yes Yes
MMR[*] Yes Yes[**]
HbCV[] Yes Yes
Pneumococcal Yes Yes
Influenza No[§§] Yes
--------------------------------------------------------------------------------------
Comes now Kenneth P. Moritsugu, M.D., M.P.H. and on his oath states:
1. I am the Medical Director of the Federal Bureau of Prisons and an Assistant Surgeon General of the U.S. Public Health Service.
2. I am responsible for the development and implementation of the HIV policy for the Bureau of Prisons. This policy provides basic guidelines regarding HIV testing, treatment, and education. Policy revisions are often necessary in light of frequent developments in the care and treatment of HIV infected individuals. Moreover, the varied aspects of treatment are also undergoing continual change, which our policy reflects. Therefore, our policy does not offer the most current or exhaustive information regarding HIV testing, treatment or education.
3. Attached is a true copy of the Bureau of Prisons' Operations Memorandum, 99-88 (6100), Human Immunodeficiency Virus.[*]
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Executed on March 29, 1989.
(s) Kenneth P. Moritsugu Kenneth P. Moritsugu, M.D., M.P.H. Medical Director Federal Bureau of PrisonsDear Judge Moye:
Persons with Human Immunodeficiency Virus (HIV) infection vary from being completely well to very ill. The usual course is one to ten plus years of asymptomatic disease (average 8 years), during which the person tests positive for antibodies to the virus and can transmit the disease to others by sexual intercourse, blood injections or from mother to child. Eventually illness begins and when full blown AIDS (as defined by the Centers for Disease Control) is present, average life expectancy is approximately 18 months.
The infection progresses to illness with great variability. The current medical approach emphasizes early diagnosis and treatment even before symptoms appear.
In general, all persons who are HIV positive should have a baseline medical evaluation consisting of a complete history and physical examination and certain laboratory tests (see enclosed materials) including a CD4(T4) lymphocyte count. If these procedures show no evidence of illness or immune deficiency, these studies should be repeated at 6-12 month intervals. The person should be extensively counseled at this initial visit and subsequently as to the nature of his or her illness, methods of transmission to others, and the importance of a healthy life-style in preventing progression of the infection.
At the present time there is only one FDA approved drug active against the HIV virus, this is called Zidovudine or AZT (trade name Retrovir). The average monthly cost of treating with Zidovudine is $600-800 per month for the drug plus blood tests and clinical evaluation every two weeks.
At this time the official indications for administering Zidovudine are "for the management of certain adult patients with symptomatic HIV infection (AIDS and advanced ARC) who have a history of cytologically confirmed Pneumocystis carinii pneumonia (PCP) or an absolute CD4 (T4 *608 helper/inducer) lymphocyte count of less than 200/mm3 in the peripheral blood before therapy is begun."
In practice, the great majority of infectious disease specialist in Georgia are beginning Zidovudine (AZT) in any patient, symptomatic or not, whose CD4 cell count is less than 200/mm3 in the blood.
Enclosed are clinical guidelines published jointly by the Medical Association of Georgia and the Georgia Department of Human Resources that discuss the former in more detail.[*] Also enclosed are the FDA approved product information about Zidovudine.
Please call me if I can be of further assistance.
Sincerely,
(s) Joseph A. Wilber Jospeh A. Wilber, M.D. Medical Consultant Office of Infectious Disease AIDS ProgramJAW:cga
Enclosures
*609
*610
*611
Dear Judge Moye:
The use of AZT in treating HIV infection is constantly being updated as experience grows. At the recent 5th International Conference on AIDS & HIV Infection, in Montreal, several scientific papers reported that the earlier AZT was started for treatment of HIV patients with T4 cell counts of 200/ml or less, the greater the reduction in *612 mortality, especially in the first two (2) years after treatment was begun. Also, several promising new drugs, close relatives of AZT chemically, are being studied and should be available in six to twelve months.
If I may provide you with any further information, please contact me.
Sincerely,
(s) Joseph A. Wilber Joseph A. Wilber, M.D. Medical Consultant Office of Infectious DiseaseMany drugs are being investigated for their ability to prevent HIV replication and restore immune function, but many problems must be overcome before effective therapy is achieved. Viral eradication is difficult because HIV genetic material is integrated into the host chromosomal DNA. In addition, HIV infects cells of the central nervous system, providing a reservoir of continued infection if antiviral agents do not cross the blood-brain barrier.
Only one antiviral agent has been clearly shown to improve immune function in AIDS patients. Zidovudine is a competitive inhibitor of reverse transcriptase, the enzyme that copies the viral RNA molecule into DNA. This inhibition prevents viral replication and protects the infected cell. A preliminary study in 1985 showed that the drug may be of benefit: 17 of 25 patients on Zidovudine had increases in the number of T-helper lymphocytes, and six of 16 patients who were anergic at entry developed positive skin tests.46 Subsequent to this, a randomized, placebo-controlled trial of Zidovudine therapy was begun in 280 patients with either a successfully treated episode of P. carinii pneumonia or a history of AIDS-Related Complex.47 The trial began in February, 1986. By September, 1986, 19 deaths had occurred in the placebo group and one death in the Zidovudine group. In addition to the difference in mortality rates, patients in the Zidovudine group showed several clinical and immunologic improvements, including a reduction in the number of opportunistic infections. In another clinical trial, Zidovudine treatment was associated with significant neurologic improvement in patients with AIDS Dementia Complex or peripheral neuropathy.48
Zidovudine causes significant toxicity in some patients. Macrocytic anemia was the most commonly observed toxic effect in the previously mentioned study, necessitating transfusion in 25% of patients. Preliminary data suggest that patients with more advanced cases of AIDS are more likely to experience severe anemia and neutropenia after long-term treatment with Zidovudine.49 A newly recognized long-term toxic effect, presented at the Fourth International AIDS Conference at Stockholm, Sweden, in June, 1988, was a syndrome of myalgias associated with an elevation of the CPK.
Whether Zidovudine will be effective for all patients with AIDS is unknown. Burroughs Wellcome and the National Institutes of Health are now conducting studies of Zidovudine in pediatric AIDS patients, adults with Kaposi's sarcoma, and asymptomatic persons with HIV infection. It is clear that Zidovudine is not a cure for AIDS and may cause serious side effects. Its use should be limited to physicians who routinely treat patients with AIDS.
There is no other effective anti-viral agent available. Several other modalities of treatment are currently under investigation, and many other modalities are being pursued by the "underground."
It is hoped that clinical research on all agents will be rapid and productive. Some of this research may necessarily come from *613 community research initiatives. These should be carefully developed and conducted.
Dear Judge Moye:
In response to the question: "Can a patient have symptomatic Human Immunodeficiency Virus (HIV) infection and not have Acquired Immune Deficiency Syndrome (AIDS)?" The answer is yes. AIDS is a carefully defined end stage in the spectrum of disease produced by HIV used mainly for epidemologic and public health purposes. Certain indicator infectious diseases (eg. Pneumocystis Carinii pneumonia, Cryptococcal menigitis, Toxoplasma Gondii encephelitis or certain indicator malignancies (Kaposi's sarcoma, Primary brain lymphoma) are required to make the diagnosis of AIDS.
Many patients with HIV are symptomatic (i.e. ill) for months or years before the criteria for AIDS are met. Other non-specific symptomatic illnesses occur commonly in patients with HIV infection, (eg. recurrent herpes genitalia, oral candida infections, many different skin disorders, nonspecific fevers, diarrhea and weight loss) but are not diagnostic of AIDS and are also seen in patients without HIV infection.
Sincerely,
(s) Joseph A. Wilber Joseph A. Wilber, M.D. Medical Consultant Office of Infectious Disease AIDS ProgramComes now before me the undersigned officer duly authorized to administer oaths, L. Newton Turk, M.D., who, after being duly sworn states as follows:
My name is L. Newton Turk, M.D. and I am the Medical Director for the Georgia Department of Corrections. I am over the age of majority and competent to testify in this matter.
Consistent with the Physician's Desk Reference and directives from manufacturer (Burroughs Wellcome), AZT is offered to anyone who is symptomatic HIV infected and whose T-Lymphocytes are 200 or below. This will include the ARC's or all the AIDS. We would not offer this to everyone whose T-Lymphocytes are below 200 but only to those who have had symptoms and have fallen into the category known as ARC and AIDS.
Those patients who have the HIV virus but have no symptomatic HIV infection will not be offered AZT. For example, if a patient has the HIV virus but shows no signs of illness or shows only minor signs of illness such as night sweats or a body rash, AZT will not be offered to that patient.
This is a general statement concerning the policy of administration of AZT and certain other complicating factors, such as pregnancy or a pre-existing serious disease, may alter the above.
*614 Further, affiant sayeth not. This the 5th Day of July, 1989.
(s) L. Newton Turk M.D. L. Newton Turk, M.D.Sworn to and subscribed before me this 5th Day of July, 1989.
(s) [Signature]
Notary Public
[1] In the original complaint, plaintiff Hawley included an equal protection claim against the government. Plaintiffs failed to plead any facts, nor have they cited any law to support such a claim. The cross motions for summary judgment do not address the issue. Therefore this court holds that the equal protection claim has been abandoned. In any event, this court is not aware of any evidence that would support such a claim.
[2] The court does not imply that the defendants might have been negligent. On the contrary, the court finds that the defendants' actions in this case have been reasonable and acceptable in light of the current state of knowledge as to the proper medication for HIV patients.
[*] DTP = Diphtheria and Tetanus Toxoids and Pertussis Vaccine, Adsorbed. DTP may be used up to the seventh birthday.
[] OPV = Poliovirus Vaccine Live Oral, Trivalent: contains poliovirus types 1, 2, and 3.
[§] IPV = Poliovirus Vaccine Inactivated: contains poliovirus types 1, 2, and 3.
[*] MMR = Measles, Mumps, and Rubella Virus Vaccine, Live.
[**] Should be considered.
[] HbCV = Vaccine composed of Haemophilus influenzae b polysaccharide antigen conjugated to a protein carrier.
[§§] Not contraindicated.
[*] Editor's Note: Operations Memorandum not submitted by the Court for publication.
[*] Editors Note: Clinical guidelines not submitted by the Court for publication.