Federal Appeals Court
Rules In Landmark Case That Health Care Workers Cannot Refuse To
Treat People With HIV
by Bennet Klein,
Esq., AIDS Law Project Director, Gay & Lesbian Advocates &
Defenders (GLAD)
http://www.debtaylor.com/fho/039707.html
(Boston, MA) In the first
case of its kind to reach a federal appeals court, the United
States Court of Appeals for the First Circuit [on March 6] set a
new precedent that it is illegal under the federal Americans
with Disabilities Act (ADA) for a dentist to refuse to treat a
patient with HIV based on the fear of transmission from a
patient to a dentist. The decision is also the first federal
appellate ruling to establish that people with HIV who do not
have symptoms are protected from discrimination under the ADA in
employment, public services, and public accommodations. The
Court ruled against a dentist in Bangor, Maine, Randon Bragdon,
D.M.D., who had a written policy of refusing to treat any
patient with HIV, the virus that causes AIDS.
"This ruling is an important
victory for men, women and children everywhere who face
discrimination because of their HIV status," said Bennett H.
Klein, director of the AIDS Law Project for Gay & Lesbian
Advocates & Defenders (GLAD) in Boston, which represented the
plaintiff in the case along with David G. Webbert, Esq. of
Augusta, Maine. Added Klein, "this victory is the first
appellate decision in the country to reject the argument that a
doctor can refuse to treat a patient with HIV or AIDS because of
the irrational fear of transmission of HIV from a patient to a
doctor or other patients. The Court sent a clear signal to
doctors and dentists that discrimination against the nearly one
million Americans living with HIV will not be tolerated and is
scientifically unjustified."
GLAD's cooperating attorney
David G. Webbert of Johnson, Webbert & Laubenstein in Augusta,
Maine, states that, "This victory has enormous implications for
people with HIV. People with HIV have experienced widespread
discrimination in access to health care. If Dr. Bragdon's
position in this case had prevailed, then any doctor or nurse
could refuse to draw blood or insert an intravenous line for any
patient with HIV."
The Court established two
legal precedents in this case: First, the Court held that a
dentist's fear of potential HIV transmission from the patient to
the dentist is irrational and not based on scientific evidence
and therefore not a basis for exemption from the ADA's
discrimination provisions. Second, the Court ruled that the ADA,
which prohibits discrimination against disabled people in places
of public accommodation (including dental and medical
offices)--as well as in employment and public services--protects
people who are HIV-positive, but who do not yet have an AIDS
diagnosis.
The case was brought by New
England's Gay & Lesbian Advocates & Defenders (GLAD), a public
interest law firm, and joined by the U.S. Department of Justice,
against a Bangor, ME dentist who has a written policy of
refusing to treat anyone who is HIV-positive.
The case is Sidney Abbott v.
Randon Bragdon, D.M.D., Docket No. 96-1644. GLAD represents
Sidney Abbott, a Maine resident who went to Dr. Bragdon with
tooth pain caused by a cavity. Dr. Bragdon examined Ms. Abbott
and determined that her cavity needed filling; he refused,
however, to fill the cavity in his office soley because Ms.
Abbott disclosed that she has HIV.
GLAD sued Dr. Bragdon on Ms.
Abbott's behalf for refusing to treat her, claiming disability
discrimination under the federal ADA. The Civil Rights Division
of the Justice Department intervened in the case in support of
GLAD. GLAD argued that public health authorities, including the
United States Center for Disease Control and Prevention and the
American Dental Association, have determined that people with
HIV may be treated safely with the use of standard infection
control procedures known as "universal precautions," which are
utilized for all patients. Indeed, there has never been a single
documented case of HIV transmission from patient to dentist in
nearly three billion dental procedures, and it is much more
likely that Dr. Bragdon would be struck by lightning than that
he would contract HIV from a patient, assuming he follows
universal precautions--which he claims to do.
Although Dr. Bragdon offered
to fill Ms. Abbott's cavity in a hospital surgical operatory if
she paid the hospital charges, Dr. Bragdon has never had
hospital privileges, and evidence in the case demonstrated that
a hospital setting would not provide any safety feature to
prevent HIV transmission other than the standard universal
precautions which are routinely used in private dental offices.
In addition, Ms. Abbott would have to travel, pay more, and be
exposed unnecessarily to bacteria and viruses in a hospital
setting. So, there would be no added safety for the dentist and
added danger, inconvenience and cost for the dentist.
In December, 1995, a federal
trial judge in Bangor, ME agreed with GLAD and ruled that Dr.
Bragdon's fears about HIV transmission were based on mere
"speculation" and "conjecture." The trial court ordered Dr.
Bragdon to comply with the ADA.
Today's Appeals Court ruling
upholds the trial court's decision. The Court of Appeals
rejected Dr. Bragdon's claim that performing dental procedures
created a significant risk of HIV transmission.
GLAD is New England's
leading legal rights organization for lesbians, gay men,
bisexuals, and people living with HIV and AIDS. Its mission is
to achieve full equality and justice for all individuals in
these groups, primarily through impact litigation and education.
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