Dentist Randon Bragdon says he exercised professional judgment.  His patient, Sidney Abbott, says Dr. Bragdon discriminated against her because she was HIV positive.  Now a judge in Boston, in the First Circuit Court of Appeals, will decide whether Bragdon violated the Americans with Disabilities Act when he refused to provide general dental care to Abbott in his office, offering her alternative treatment in the local hospital instead.


    Sidney Abbott was HIV positive for eight years and asymptomatic when she called Dr. Randon Bragdon’s office in Bangor, Maine to schedule an appointment.  When she arrived at his office, Abbott filled out a registration and health record form.  She stated on the form that she was HIV-positive. 


    Bragdon examined Abbott and diagnosed a cavity.  He told Abbott he had a long-standing policy of not treating patients with infectious disease in his office.  He offered to treat her cavity in a nearby hospital operating room, although this procedure would cost about five times as much as an office procedure. She declined this offer.

    Abbott sued Bragdon under the Americans with Disabilities Act.  A person who sues under this federal law must show that she has a disability, and that she was discriminated against because of this disability by a person who owned or operated a place of public accommodation.  Unlike a medical malpractice suit, a patient does not have to show that she suffered damages.


    This case presents several issues to the Circuit Court that have only been decided by lower-level federal courts.  For example, Bragdon asserts that Abbott’s condition -- HIV-positive but asymptomatic -- does not meet the federal definition of disability.  District courts in this case and in others like it have previously said that it does.  However, this court’s ruling will carry more weight than the earlier decisions.


    And, more importantly from his standpoint, Bragdon feels this case falls into an explicit exception under the ADA.  The law allows an entity to discriminate when an individual poses a direct threat to the health or safety of others.  Congress defines a direct threat as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures . . ..”  Bragdon feels that performing invasive dental procedures on HIV patients in his office creates a significant risk to the health and safety of his staff, and that this risk cannot be eliminated.  The American Dental Association and other medical professional groups disagree.  They endorse adherence to universal precautions, as set forth by the Center for Disease Control.  They have adopted the position that performance of procedures in an office setting with universal precautions does not pose a direct threat to the health and safety of dentists and staff.

    The lower court judge who heard Abbot v. Bragdon decided in the patient’s favor and ordered Bragdon not to discriminate against HIV-positive patients in the future.  This remedy, an injunction ordering a provider to cease discriminating, has been applied in many of the ADA cases against providers.  However, judges can craft other appropriate remedies in these suits.  Some judges have ordered providers to post signs declaring a commitment to treat all kinds of patients, or to post the telephone number of the Department of Justice for discrimination complaints, or to take classes on the implementation and efficacy of universal precautions. 


    Patients have another option if they do not want to bring a lawsuit themselves.  They can contact the U.S. Department of Justice to ask them to investigate and handle complaints regarding possible ADA violations.  If the Department of Justice decides to bring a lawsuit against a provider, they will ask a court to ban future discrimination and they can ask for fines to be paid to the government and awards of money to be paid to patients. 


    Many cases in which a patient claims that a provider has violated the Americans with Disabilities Act allege other, related violations as well.  A 1995 Pennsylvania case was fairly typical.  In Sharrow v. Bailey, an HIV-positive patient sued the orthopedic surgeon who had planned to operate on infected hardware in the patient’s leg.  The surgeon wanted protective suits for the whole surgical team, but the hospital denied the request and Dr. Bailey did not operate.  A day later another surgeon from the same hospital performed the surgery. 


    Sharrow, the patient, sued Bailey and the hospital for violating the ADA and the Federal Rehabilitation Act, a separate law which prohibits federally-supported entities from discriminating against handicapped individuals. Federal Rehab Act sanctions can include fines, punitive damage awards, and even termination of federal funding.  Under Pennsylvania law, Sharrow also sued Bailey for medical malpractice and infliction of emotional distress, and he sued the hospital for failing to train their staff adequately in the proper treatment of HIV-positive patients. 

    All the claims were brought as one case.  After a court ruling allowing most of these claims to go forward, the defendants settled with the patient out-of-court.


    Unless the First Circuit Court of Appeals takes a new tack, the lesson from these and other cases brought against dentists and physicians under the ADA is that providers are basically expected to provide the same kind of care to a patient with a disability as they would to one without.  Providers can refer patients to specialists for treatment, as long as they would refer individuals without disability in the same way.  The courts and the American Dental Association have not recognized a dental “specialty” of treating HIV-positive and AIDS patients up to this point, and they have found most referrals of this type to be a basic denial of care.  If a dentist knows of a colleague who is developing a sort of specialty in this area, it might be appropriate to offer to refer a patient, as long as the dentist clearly communicates that the patient is also welcome to stay with the original practice. 


    Adherence to universl precautions is necessary for the practice of medicine in today’s society.  A claim of inability to comply with these standards in an office setting will probably not be a viable defense against an ADA claim.



    Howe v. Hull, 873 F.Supp. 72 (1994).  Plaintiff verdict  of $500,000 for representative of deceased AIDS patient who was refused admission at a hospital while suffering an allergic reaction to medication.  $was for Federal Rehab Act violations.  Injunction against discriminating in the future for ADA violations.  EMTALA and infliction of emotional distress claims were unsuccessful. Earlier citation: 873 F.Supp. 70 (1994).


    Abbott v. Bragdon, 912 F.Supp. 580 (1995).  Summary Judgment for plaintiff HIV-positive dental patient whose DMD diagnosed cavity and offered to treat it in local hospital operating room instead of in the dentist’s office.  Is on appeal to First Circuit Court of Appeals, with special questions re whether asymptomatic HIV-positive status qualifies as a disability under ADA and whether DMD can refuse to treat on the basis of direct threat to himself and his employees.  Earlier cites for this case 893 F.Supp. 99 (1995) and 882 F.Supp. 181 (1995).


    Sharrow v. Bailey, 910 F.Supp. 187 (1995).  HIV-positive patient sues orthopedic surgeon who refused to do surgery without “space-suits” for himself and surgical team.  Hospital would not provide them.  Another surgeon performed the surgery the next day and patient fully recovered from original infection.  Attny for the case says the defendant surgeon and hospital settled and that the hospital now provides “space-suits” for surgery on request.  Advice of plaintiffs attorney to MD’s was understand your hospital policy and make sure you agree with it or, at least, hammer out difficulties before they arise in the context of treating individual patients.  He said he filed suit and let them shred each other.


    U.S. v. Morvant, 898 F.Supp. 1157 (1995).  Department of Justice sued dentist for referring two AIDS patients to another dentist whom he said specialized in treating AIDS patients, although she denied this was her specialty, as she was a general practitioner. Ct. did not recognize AIDS “specialty” in dentistry.  Summary judgment for U.S. on ADA and later award of $80,000 compensatory damages to individual patients.  No fines to dentist however.  Earlier citations: 1994 U.S. Dist. LEXIS 13074 (1994) allows dentist to question witnesses about their sexuality and HIV status as it might go to bias at trial.  843 F.Supp 1092 (1994) allows DMD to be personally liable even though incorporated.

    HIV Infection and Americans with Disabilities Act

    by Attorney Frank E. Reardon

    January 1997

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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