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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”


   


 
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.