Lawyer offers insights on treating HIV/AIDS patients

In the Courts. By Tanya Albert, amednews staff. Sept. 9, 2002.

IN THE COURTS

Analyzing the impact of recent court decisions on physicians

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This month, In the Courts talks to lawyer Daniel Bruner about what physicians need to know about the legalities of treating patients with HIV/AIDS. New medications are helping people with HIV/AIDS live longer and legal experts believe physicians will encounter a host of new situations as a result.

Bruner is the associate director for litigation and advocacy at the Whitman-Walker Clinic Legal Services in Washington, D.C. The clinic has historically provided medical and social services to the gay and lesbian community and has provided pro bono legal services for 15 years.

Bruner has counseled and represented patients with HIV/AIDS who have encountered discrimination from physicians, dentists and hospitals. Here's what he had to say:

Question: What are the laws that apply to HIV discrimination by physicians?

Answer: The Americans with Disabilities Act, and the laws of many states and some municipalities and counties, prohibit discrimination based on "disability" (or "handicap") by "public accommodations." HIV infection is recognized by most courts and state and local human rights commissions to be covered by these laws. The ADA and many state and local disability discrimination laws define a "public accommodation" to include medical clinics and doctors' offices as well as hospitals.

In addition, the federal Rehabilitation Act prohibits anyone who receives "federal financial assistance" from discrimination based on disability. The courts have ruled that physicians, clinics and hospitals that participate in Medicare, Medicaid or any other federal (or joint federal-state) health care program are covered by the nondiscrimination requirement of the Rehabilitation Act.

Q: What are the legal precedents that physicians need to know about?

A: Probably the single most important case is Abbott v. Bragdon. Although the case involved a dentist who refused to fill a cavity for an HIV-positive woman, the precedent applies to physicians as well.

The dentist argued that Abbott was not covered by the ADA because her asymptomatic HIV infection was not a "disability." The Supreme Court ruled that Abbott was disabled under the law. Dr. Bragdon also argued that under the statute he was not obligated to provide service to a patient who posed a "direct threat" to others, and that there was a significant risk that he or his staff might contract HIV while filling Abbott's cavity. The courts rejected this argument as well.

The Supreme Court emphasized that the "direct threat" defense does not permit discrimination whenever any level of risk exists, but only if the risk is significant. The existence of a direct threat must be demonstrated by objective, scientific evidence available at the time the decision to deny treatment was made.

In a case last year, the 1st U.S. Circuit Court of Appeals held that an obstetrician did not discriminate against a pregnant HIV-positive patient when he decided not to continue to provide prenatal care or to deliver her child, and instead referred her to an HIV specialist. The obstetrician argued that he did not have expertise in treating an HIV pregnancy; the former patient argued that an HIV specialist was not necessary. Both submitted testimony from experts.

The Court of Appeals held that if there is room for a reasonable difference in medical judgment as to what is best for the patient, then it is not appropriate for the courts to get involved. On the other hand, if a doctor's judgment that a patient needs an HIV specialist lacks any reasonable medical basis, then the doctor may be liable for discrimination.

The court explained that a refusal to treat would be discriminatory if the doctor's explanation was so unreasonable that it was a pretext for discrimination or if the doctor was relying on unreasonable stereotypes about persons with the disability.

Q: In light of these decisions, if I am a physician trying to decide whether I should refer an HIV patient, what criteria should I use to decide so I am not accused of being discriminatory?

A: I would recommend that the physician follow two basic principles. First, a decision not to perform a specific procedure on, or provide a treatment for a patient with HIV/AIDS, or to refer the patient to a specialist, should be based on the physician's informed judgment about what is best for the patient. Concern about the risk of contracting HIV from the patient is not a legitimate basis for referring a patient or denying treatment.

Second, if the physician is concerned a procedure might be risky for the patient -- e.g., because the patient may be at higher risk of complications because of a weakened immune system -- then the physician should assess the patient's individual condition, and consult the patient's HIV specialist if he or she has one, rather than rely on generalizations that may not actually apply to this specific patient. The disability discrimination laws require an individualized assessment before concluding a person with a disability is not qualified for a service because of her disability.

Q: What if the procedure sought is elective, such as plastic surgery?

A: The anti-discrimination laws do not recognize a distinction between "medically necessary" and "elective" medical procedures. The laws prohibit discrimination in providing any service that a physician provides to others.

Q: Have there been test cases that demonstrate what could happen if an HIV patient seeking an organ transplant is denied? If not, how do you believe courts may interpret that issue?

A: Liver transplantation is a particularly "hot issue" because of the growing numbers of patients co-infected with HIV and HCV or HBV. The "conventional wisdom" has been that HIV infection is a contraindication for a liver or other organ transplant. However, the assumption that patients with HIV do not do well after an organ transplant has been challenged by recently published evidence. Last November, the Massachusetts Division of Medical Assistance Board of Hearings and Appeals ordered a Medicaid managed care organization, Neighborhood Health Plan, to cover a liver transplant for a woman with HIV and HCV. The board rejected the argument that liver transplants on patients with HIV are experimental.

Q: Is an HIV patient required to let the physician know his or her status?

A: I am not aware of any state laws that require patients to disclose an HIV diagnosis to a physician when seeking care, or which authorize a physician to terminate services if this information is withheld. Since universal precautions should be used with all patients to prevent exposure to bloodborne pathogens, knowledge of a patient's HIV status should not be necessary to protect medical staff. Nevertheless, it is, of course, a good idea for patients to be forthcoming with their doctors about their medical history and current medical conditions. Unfortunately, a number of persons with HIV are reluctant to disclose their status when they seek care for conditions that are unrelated (or which they believe to be unrelated) to HIV, because they have encountered discrimination in the past.

Q: What do you predict will happen in the legal arena over the next five years?

A: As treatments for HIV hopefully continue to improve, and increasing numbers of persons with HIV and even AIDS live longer and enjoy a higher quality of life, I anticipate that they will experience many of the same medical problems as persons without HIV who have the same risk characteristics, such as age, family background, occupation, diet, tobacco use, and exercise or lack of exercise. For instance, as they age many persons with HIV/AIDS will begin to experience cardiac problems. In addition, increasing numbers of persons with HIV/AIDS will seek the same elective medical procedures (including cosmetic surgery and hair transplants) as persons without HIV. I believe that the courts and state and local human rights agencies will continue to rule that an HIV or AIDS diagnosis should not be a reason to deny such medical services except when a specific patient's medical condition makes a specific procedure dangerous or otherwise inadvisable for her.

Albert is a staff writer covering legal issues.