Disability Act umbrella covers asymptomatic HIV
Courts less sympathetic to health care workers
AIDS activists recently won a landmark discrimination case involving an HIV-positive woman who was denied treatment at a dental office. But legal experts say the Americans With Disabilities Act has not been as protective for HIV-positive health care workers.
In early March, the 1st U.S. Circuit Court of Appeals in Boston upheld a lower court’s decision that Maine dentist Randon Bragdon violated the Americans with Disabilities Act by refusing to treat an HIV-infected yet symptomless woman in his office. Although 1,276 HIV-positive people have made claims of discrimination under the ADA since 1992, this is the first time in which a federal appeals court had ruled that the ADA applies to an HIV-positive person who has not developed AIDS.1
"This is a very welcomed decision because we need to end the debate and say very clearly that from a legal and ethical point of view every type of HIV infection is covered under the ADA," says Lawrence Gostin, JD, professor of law at Georgetown University in Washington, DC. "Failure to do so would mean that you could compulsorily test people, discriminate against them in employment, in public services and accommodations, and they would have no redress."
Dentist offered to treat at hospital
Sidney Abbott, the 34-year-old patient in the case, sued the Bangor dentist for discrimination after he refused to fill her cavity. Abbott had no symptoms of HIV but confided on a patient information form that she was HIV-positive. After she confirmed that she was infected, Bragdon offered to treat her at a hospital at her expense. Abbott refused the offer and filed an administrative complaint with the Maine Human Rights Commission. Although the commission decided in favor of Abbott, the commission was unable to resolve the case and Abbott filed suit in U.S. District Court. (See related story in AIDS Alert, September 1995, p. 118.)
Boston-based Gay and Lesbian Advocates, which helped defend Abbott, calls the court’s decision a major civil rights victory for HIV-positive people and argues that if the court had ruled in favor of Bragdon, "any doctor or nurse in the country could have refused health care to anyone with HIV."
Sanford Kuvin, MD, a Palm Beach, FL, infectious disease specialist and board member of Americans for a Sound AIDS Policy, criticizes the court’s decision, calling it a "a civil rights victory which has subverted public health." Bragdon, he points out, did not refuse to treat Abbott but wanted to treat her in a hospital operating room, which would have lowered the risk of transmission.
Kuvin, who was an expert witness for Bragdon, warns that the decision, which Bragdon is appealing, would impair the clinical decision-making process for physicians and dentists.
"Adhering to the ADA law as defined by the court is removing the element of clinical judgment for the practicing dentist," he warns. "Therefore, he has no clinical judgment to give any more and has to follow blindly what is dictated by law, even if there is a direct threat to himself and others."
The issue of direct threat has been at the core of several other HIV discrimination cases in the past year. Judges in at least two other cases ruled that treating HIV-positive patients posed a small but real threat to health care providers, Kuvin says.
Despite the court’s finding that Bragdon’s refusal to treat Abbott in his office violates the ADA, the judge notes that "we are not blind to the difficulty of the choices that the ADA compels health-care professionals, such as Dr. Bragdon, to make. We also recognize that cases of this kind are necessarily fact-sensitive; had the patient required more invasive treatment or had the dentist proffered stronger evidence of a direct threat, the result may well have differed."
The judge concludes by cautioning future courts "not to read our words more broadly than the context admits; our decision today eschews a blanket rule and instead demands case-by-case inquiry into a service provider’s responsibilities to treat HIV-positive patients."
Workers at greater risk than patients
One of the weaknesses of Bragdon's defense was that he was unable to cite a confirmed case in which a patient transmitted the virus to a dentist. Kuvin, however, points to the recent report of a French surgeon who was believed to have been infected by an HIV-positive patient and went on to transmit the virus to another patient during surgery.
"We know that the risk [of HIV transmission] is two to three times greater for the health care worker than for the patient," he adds.
The Abbott case, which received support from the U.S. Justice Department’s Civil Rights Division, is significant in that it went against other court rulings that held that a person must have actual impairment of bodily function in order to receive ADA coverage, Gostin says. Congress intended the act to include asymptomatic as well as symptomatic HIV-positive people, he adds.
While the case clarifies the scope of the ADA, the law still contains a major loophole when it comes to protecting the insurance coverage of HIV-positive patients because they can base coverage on the cost of treating the disease, says Gostin.
"Essentially it says employers and insurers can act according to their own actuarial guidelines. So my fear is that ADA isn’t going to work out well in dealing with things like managed care organizations’ pre-existing condition coverage, except for the most gross kinds of cases," he says.
Although insurers use actuarial data to set coverage costs or exclusions for other costly conditions, such as heart disease and cancer, they have not been known to discriminate against those patients the way they have against AIDS patients, he adds.
The ADA also is not working well for health care workers who have lost their jobs because of HIV infection, says Gostin. Historically, the courts have been sympathetic to discrimination claims in most professions, but not when it comes to HIV-infected health care workers.
Courts have not listened to data’
"The courts have been very reluctant to defend health care professionals with HIV under ADA," he says. "Courts have not really listened to the epidemiological data showing that it is a very remote risk."
The French surgeon case underscores just how low the risk is. An investigation of his practice identified 3,004 patients on whom he had performed at least one invasive procedure. Only one case of transmission was found after testing nearly one-third of those patients.
"The fact that this is only the second health care worker in the history of the HIV epidemic who has been documented to have transmitted to a patient supports our assessment that the risk of this is very small," says David Bell, MD, chief of the HIV infections branch in the CDC hospital infections program.
Nonetheless, the report coincides with renewed interest in reviewing the CDC’s 1991 guidelines on health care workers infected with HIV and hepatitis. The CDC’s Hospital Infection Control Practices Advisory Committee has requested the agency to consider updating the guidelines, which were drafted following the report of the first case of provider-to-patient HIV transmission involving a Florida dentist and six patients. Although the French surgeon case has led to strong debate in France over guidelines for infected health care workers, U.S. health officials are reluctant to discuss the implications of the case until the findings are published in a peer-reviewed journal. (See related story in AIDS Alert, March 1997, p. 31.)
Since 1991, the CDC has recommended that health care workers who perform invasive procedures know their HIV status, and local expert review panels determine whether they can continue practicing. Even if the CDC doesn’t add more restrictive measures to practicing HIV-positive health care workers, infected health care workers will have difficulty convincing courts that their risk of infecting patients is low, Gostin says.
In the most recent case filed under the ADA, an HIV-positive operating room nurse at Riverside Regional Medical Center in Newport News, VA, is seeking $300,000 in damages and back pay. The suit, filed in December 1996 in the U.S. District Court for the Eastern District of Virginia, claims that the nurse was fired shortly after he was diagnosed with HIV infection in 1994.
The suit claims that hospital officials did not help the nurse find another job. In a written release, hospital officials state that its action "was designed to protect our patients from exposure to transmittable disease, was in conformity with the Americans With Disabilities Act, and has taken into account guidelines established by the CDC."
So far, no nurse has been linked to occupational transmission of HIV. Of the 51 documented cases of health care workers infected by HIV-positive patients, 20 have been nurses.
Reference
1. Sidney Abbott, et al v. Randon Bragdon, No. 96-1643, Appeal from the United States District Court for the District of Maine (March 5, 1997).
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