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Court: HIV infection a disability




 

Justices rule that anti-bias law covers even those without AIDS symptoms In a case with sweeping ramifications for HIV patients and others with disabilities, the U.S. Supreme Court ruled Thursday that HIV-infected people are protected by the Americans With Disabilities Act, even if they suffer no symptoms of AIDS.

It was the first AIDS-related ruling by the Supreme Court and only the second involving the 8-year-old disabilities act.

"This ruling has incredibly important ramifications, not only for people with HIV but with all people with disabilities," said Benjamin Schatz, spokesman for the San Francisco-based Gay and Lesbian Medical Association, which has more than 2,000 physician members in all 50 states.

In another AIDS-related discrimination case, the state Supreme Court allowed Wednesday a suit by a bank employee with HIV who quit Wells Fargo when the bank stopped letting him telecommute one day a week.

Tony Varona, chief counsel for the Human Rights Campaign in Washington, D.C., said Thursday's 5-4 ruling by the U.S. high court sent a clear message to health care providers that "discrimination against people living with HIV is scientifically unjustified and forbidden under law."

In New York, Tracey Conaty, spokeswoman for the National Gay and Lesbian Task Force, said, "The task force is thrilled with this decision, because what we've long known is that people with AIDS and HIV are discriminated against and deserve redress.

"This will go a long way toward ensuring they get redress and hopefully will act as a deterrent against discrimination."

Thursday, the justices ruled in a Maine case in which a dentist refused to fill an HIV-infected woman's tooth in his office. The lower court had ruled in favor of the patient, Sidney Abbott, but the case was appealed on the question of whether asymptomatic HIV infection constituted a disability.

Saying it does, Thursday's ruling set aside the lower court decision that dentist Randon Bragdon violated the ADA. The Supreme Court ordered the appeals court to reconsider the case in the context of the justices' conclusion.

The ruling emphasized that it does not "foreclose the possibility that the Court of Appeals may reach the same conclusion it did earlier."

The ruling could have an effect on a similar lawsuit in San Francisco in which an HIV patient is suing UC-San Francisco for allegedly refusing to perform surgery on him because of his HIV status.

Writing for the majority in the Maine case, Justice Anthony M. Kennedy said, "HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.

"(The dentist) had the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession."

In deciding whether a health care provider has violated the ADA, Kennedy wrote, "courts should assess the objective reasonableness of the views of health care professions without deferring to their individual judgments."

Bush signed the ADA

The ADA, signed by President Bush in 1990, prohibits discrimination against the disabled in jobs, housing and public accommodations, including medical offices.

Bragdon argued that the possibility of HIV transmission from Abbott to him merited his refusal of treatment, despite the fact that public health authorities, including the U.S. Centers for Disease Control and Prevention and the American Dental Association, have determined that people with HIV may be treated safely with standard precautions.

When he found a cavity near Abbott's gum line, he told her that his infectious disease policy was that he would not fill the cavity in his office but he would treat her only at a hospital at her expense. She sued, contending that the contagious and fatal nature of AIDS limited her ability to have sexual relations and bear children.

A U.S. District judge and the First Circuit Court of Appeals agreed. The ADA allows disabled people to be treated differently if they pose a direct threat to the health or safety of others, but public health authorities say there is no documented case of a dentist contracting the AIDS virus from a patient.

Bragdon's attorneys argued he should be permitted to use his own judgment on how to safely treat such patients; they also argued that having sex and bearing children should not be considered major life activities under the ADA, similar to seeing, hearing and walking.

Abbott's lawyers said that if HIV-infected people did not have clear protection under the law, many would hide their condition, a point with which GLMA's Schatz heartily agreed.

"The real fear in the (gay and lesbian) community was that the Supreme Court would rule the other way," he said, "which would create a climate of discrimination against people with HIV, which in turn creates the exact climate in which HIV is most easily spread."

Added HRC's Varona: "Many people who submit to voluntary HIV testing do so comforted by the knowledge that all persons with HIV infections are protected from discrimination under the ADA."

How justices voted

Kennedy was joined in the majority by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Dissenting in part were Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor.

Rehnquist, writing for the minority except O'Connor, said decisions on whether the ADA covers asymptomatic HIV-infected individuals should be case by case. He said he didn't believe Abbott had shown her infection substantially limited a major life activity. O'Connor agreed in a separate dissent.

The same issue, although not tied to the ADA, is the key to a suit by Guerneville HIV patient Stephen Iacovino against UCSF orthopedic surgeon Dr. Franklin Hoagland.

In that case, Iacovino v. UC Regents, in San Francisco Superior Court, Iacovino charges that Hoagland discriminated against him by not performing surgery. Hoagland claims surgery would have put Iacovino at high risk of post-operative infection.

The suit does not make outright ADA claims but says Iacovino was discriminated against under the state Unruh Civil Rights Act.

Iacovino said his avascular necrosis of the right shoulder was so painful that he was taking daily doses of morphine and could not lift his arm. Physical therapy had not helped and his physicians recommended shoulder replacement. After being rejected by Hoagland, Iacovino had the procedure performed in Hawaii.



 


Copyright © 1998 -The Bangkok Pos, Publisher. All rights reserved to San Francisco Examiner. All rights reserved. Reproduced with permission. Reproduction of this article (other than one copy for personal reference) must be cleared through the San Francisco Examiner, Permissions Desk, 110 Fifth Street, P.O. Box 7260, San Franciso, CA 94120.San Francisco Examiner

Information in this article was accurate in June 25, 1998. The state of the art may have changed since the publication date. This material is designed to support, not replace, the relationship that exists between you and your doctor. Always discuss treatment options with a doctor who specializes in treating HIV.