Judge: Inmate should get treatment
Magistrate says denial in hepatitis case based on cost
By MARK SCHAVER, The
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
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
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
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
"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
"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