Mid-Atlantic Health Law TOPICS
Dentist Who Refused to Treat AIDS Patient Loses Again
Earlier in 1998, the United States Supreme Court ruled, in a case involving dental services, that an individual who is HIV positive, but who has no symptoms of AIDS, is disabled and protected against discrimination under the Americans with Disabilities Act (ADA).
In this case, Sidney Abbott disclosed her HIV positive status to a dentist from whom she had sought treatment. The dentist refused to fill her cavity in his office, but offered to provide treatment in a hospital if Ms. Abbott paid the hospital charges. Abbott declined and sued under the ADA, claiming the dentist's refusal to provide services in his office was unlawful discrimination based on her disability, asymptomatic HIV.
A. Supreme Court Decision
On appeal to the Supreme Court, in Bragdon v. Abbott, Dr. Bragdon argued that (1) Ms. Abbott's asymptomatic HIV did not qualify as a disability under the ADA, and (2) the ADA permitted him to treat Ms. Abbott in a hospital because treating her in his dental office constituted a direct threat to his, and possibly others', health or safety.
The ADA defines a disability to include a "physical or mental impairment that substantially limits one or more of the life activities of such individual." Thus, to obtain the ADA's protections, Ms. Abbott had to establish that her asymptomatic HIV infection was an "impairment" that "substantially limits ... [a] major life activit[y]."
The Supreme Court had little trouble in finding that infection with HIV impairs an individual's hemic and lymphatic systems. The more difficult question was whether asymptomatic HIV significantly limited one or more major life activities.
Ms. Abbott claimed the ability to reproduce as a "major life activity," and claimed that HIV had significantly limited her ability to bear children. The Court agreed, finding that HIV infected women who try to reproduce (1) impose a significant risk of infecting their male partners, and (2) impose a significant risk of infecting their offspring.
In reaching its conclusion, the Court accepted as true Ms. Abbott's unchallenged assertion that she decided not to have children because of her HIV status. It is unclear whether the outcome of the case would have been different if Ms. Abbott had decided against having children for a different reason.
The Court also addressed the "direct threat" defense raised by Dr. Bragdon. The ADA does not require a place of public accommodation, such as a dental office, to provide service to an individual with a disability if doing so creates a direct threat to the health or safety of the service provider or others.
Here, Dr. Bragdon contended that filling Ms. Abbott's cavity in his office created a significant risk of transmitting the virus. He argued that treating Ms. Abbott in a hospital setting would be safer. The Court did not resolve this issue on the facts in the record, but it provided guidance on how the issue should be resolved.
The Court stated that a "direct threat" defense should (1) be determined from the perspective of the individual who refuses the accommodation, and (2) the assessment of the risk must be based on medical or other objective evidence.
In determining the reasonableness of the fear of transmission of HIV during dental procedures performed in an office, the Court noted that "special weight and authority" should be given to public health authorities, like the Centers for Disease Control. The Court concluded, however, that the record had not been fully developed on that issue, and sent the case back to a lower court for further consideration.
B. Subsequent Findings
After such further consideration, on December 29, 1998, the appropriate lower court determined that treating Ms. Abbott in Dr. Bragdon's office did not create a direct threat to Dr. Bragdon's or his staff's health or safety. Therefore, such court concluded that Dr. Bragdon's denial of in-office treatment violated the ADA.
The Supreme Court decision in Bragdon v. Abbott is significant in that it establishes that individuals with asymptomatic HIV are generally protected against discrimination under the ADA. Although the case is about places of public accommodation, its legal principles also should apply to employment, because the ADA prohibits discrimination not only by places of public accommodation, but also by most employers, that is, those with fifteen or more employees.
The Fourth Circuit, which sets federal law in Maryland and Virginia (among other states), had earlier ruled that asymptomatic HIV was not a disability, because it neither constituted an impairment nor substantially limited a major life activity. As a result of Bragdon v. Abbott, that ruling is no longer good law.
Accordingly, now the nationwide standard is that persons with asymptomatic HIV are protected under the ADA, and that they may not be discriminated against by most employers or by places of public accommodation unless there is a direct health threat.
March 21, 1999