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North Shore Univ. Hosp. v. Rosa, 86 N.Y.2d 413 (October 24, 1995).

HUMAN RIGHTS - DISABILITY - AIDS - HIV - HEALTH CARE - DISEASE CONTROL GUIDELINES

DENTAL CLINIC'S USE OF HEIGHTENED PRECAUTIONARY MEASURES DESIGNED TO PREVENT THE SPREAD OF HIV DOES NOT VIOLATE NEW YORK STATE HUMAN RIGHTS LAW BECAUSE THE PROTOCOL COMPORTED WITH MEDICAL KNOWLEDGE AT THE TIME.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY

SUMMARY

On December 6, 1985, David Martell filed a complaint with the New York State Division of Human Rights (DHR) alleging that because he was perceived as a member of a group with a high risk of carrying HIV, he had been denied equal privileges at a public hospital's dental clinic. On one of complainant's visits to the clinic he was treated in accordance with the clinic's "strict isolation technique" under its infectious disease protocol. This technique required marking the examination room with a small letter "x," draping the room with plastic, and outfitting staff with masks, additional gloves, goggles, caps and full body garments. The Commissioner of DHR determined that the complainant had been subjected to discrimination and, as a result, had suffered mental anguish. The Commissioner ordered the respondent to "cease and desist" discriminating on the basis of actual or perceived disability and to compensate complainant in the amount of $25,000. The Appellate Division annulled the Commissioner's determination and dismissed the complaint holding that the complainant had been denied neither the treatment he required nor any accommodations. Furthermore, the Appellate Division held the respondent's protocol to be reasonable because it was based upon prevailing medical consensus at the time.

ANALYSIS

ISSUE

Whether the State Human Rights Law (Executive Law Sect. 296 [2][a]) was violated when a medical facility used heightened precautionary protocol while treating a patient perceived to be at risk for carrying HIV (the AIDS virus).

DISPOSITION

Judgment of the Appellate Division affirmed, with costs. Respondent hospital established that its decision to treat complainant under its disease protocol was based on prevailing medical knowledge and therefore was not a pretext for discrimination.

CASES CITED

Key
  • Elaine W. v. Joint Diseases N. Gen. Hosp., 81 N.Y.2d 211 (N.Y. 1983).
Cited
  • St. Mary's Honor Ctr. v. Hicks, __ U.S. __, 113 S.Ct. 2742 (1993).
  • Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
  • McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
  • Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 (N.Y. 1985).
  • Maloff v. City Comm'n on Human Rights, 46 N.Y.2d 908 (N.Y. 1979).

OTHER SOURCES

Cited by Court
  • Executive Law Sect. 296 [2][a].
  • Surgeon General's Report on AIDS, U.S. Department of Health and Human Services, 1987.
  • Preventing the Transmission of Hepatitis B, AIDS, and Herpes in Dentistry, U.S. Department of Health and Human Services, 1985.
  • Infection Control in the Dental Office, 97 Journal of the American Dental Association, 637, October 1978.
Related Sources
  • State v. Clausen, 491 N.W.2d 662 (Minn. Ct. App. 1992).
  • Kerins v. Hartley, 27 Cal.App.4th 1062 (Cal. Ct. App. 1994).
  • Bieling v. Battle, 434 S.E.2d 719 (Ga. Ct. App. 1993).
  • Faya v. Almarez, 620 A.2d 327 (Md. 1991).
  • Elstein v. State Div. of Human Rights, 161 A.D.2d 1157 (N.Y. App. Div. 4th Dept. 1990).
  • Susan Moriarty Miltko, The Need for Professional Discretion: Health Professionals Under the Americans with Disabilities Act, 89 Nw. U. L. Rev. 1731 (1995).
  • Marjorie H. Lawyer, HIV and Dentistry, 29 Val. U. L. Rev. 297 (1994).
  • CDC National AIDS Clearinghouse

COMMENTARY

1. Court's Reasoning
The court found that although the complainant established a prima facie case of discrimination, Respondent hospital successfully rebutted the presumption of discrimination by demonstrating legitimate, non-discriminatory reasons for its "strict isolation technique." In determining whether the protective protocol used by Respondent against HIV and other infectious diseases was discriminatory, the court looked to the prevailing state of medical knowledge at the time the alleged discrimination took place. As a result, the reasons proffered by respondent hospital for heightened precautions were not a mere pretext for discrimination.
2. Other Jurisdictions
Courts are consistent in treating the current state of medical knowledge as a benchmark in determining the duties owed by both patients and health care providers. See Kerins v. Hartley, 27 Cal.App.4th 1062, (Cal. Ct. App. 1994) (statistically insignificant chance that patient contracted AIDS from surgeon during 1986 operation precluded recovery of emotional distress damages for fear of AIDS); Bieling v. Battle, 434 S.E.2d 719 (Ga. Ct. App. 1993) (physician not required to guard against the possibility of AIDS from blood transfusion during surgery in 1982); Faya v. Almaraz, 620 A.2d 327 (Md. 1991) (patient is allowed to recover for emotional distress due to fear of developing AIDS for the time between learning of the doctor's HIV positive status and receipt of fear-relieving information such as proof of non-exposure or a negative result on an HIV test, citing Surgeon General's Report on AIDS 10 (1987) that the only fluids that can transmit HIV are blood, semen, breast milk and vaginal fluid).

A Minnesota case quite similar to North Shore reached the opposite result. In State v. Clausen, 491 N.W.2d 662 (Minn. Ct. App. 1992), a dentist was held to have violated the Minnesota Human Rights Act by refusing to treat an asymptomatic HIV positive patient and referring him to a University of Minnesota clinic that the dentist knew had studied the appropriate methods of treating HIV positive patients. Moreover, the dentist's proffered reasons for the referral were held to be a mere pretext for discrimination. The principle reason for the discrepancy in the result of Clausen and that reached in New York is the difference in the state of medical knowledge at the time of the alleged discriminatory treatment. Although the patient in North Shore sought treatment in 1985, the actions at issue in Clausen occurred in 1990. Thus, the prevailing medical opinions in 1990 indicated that there was no reason for a dentist using universal precaution procedures (generally the use of protective clothing for health care workers and disinfection of all equipment) to deny treatment to HIV positive patients, while the more elaborate procedures followed in North Shore go beyond this level of care.

3. Comparison to Federal Law
The laws of New York provide more comprehensive protections to people who are suspected of or actually are suffering from the affects of HIV. 38 U.S.C. § 7333(a) provides that those "who are infected with the human immunodeficiency virus shall not be discriminated against in admission or treatment" by any health care facility associated with the Veterans Health Administration; but there does not seem to be a similar restriction on private health care providers. 42 U.S.C. § 300ee-3(a), however, seeks to prevent the sort of misunderstanding Martell encountered by providing for grants to "assist in the payment of the costs of projects to train such providers concerning appropriate infection control procedures to reduce the transmission [of the virus]" and the necessary provisions of "care and treatment to individuals with such syndrome or related illnesses."
4. Implications
Due to the current state of medical knowledge, practices such as those employed in North Shore are unlikely to be upheld in the future and are equally unlikely to be in use at this time. Nonetheless, use of these techniques in private medical practice may be permissible. See Elstein v. State Div. of Human Rights, 161 A.D.2d 1157 (4th Dept. 1990) (unanswered question whether private physician's office is public accommodation under Executive Law Sect. 292[9]). Absent a showing of greater risk of infection through contact with saliva than is currently believed, current dental practices are likely to involve protective clothing for health care workers and disinfection of dental equipment.
5. Relevant Law Review Articles
The interplay between HIV and the law is quite broad despite being relatively new. For more information concerning the standards health care professionals follow when treating HIV patients see Susan Moriarty Miltko, The Need for Professional Discretion: Health Professionals Under the Americans with Disabilities Act, 89 Nw. U. L. Rev. 1731 (1995). Miltko discusses the evolution of medical practice techniques from strict isolation, double gloving, and selective scheduling to the current ADA requirements which make these practices illegal. Miltko argues that a strict interpretation of the ADA guidelines may limit the flexibility health professionals need to treat patients and counter the spread of infectious diseases; however, a broad interpretation of the ADA guidelines would implement a professional discretion standard, allowing a more flexible approach to treating HIV patients. For more information regarding HIV and the practice of dentistry see Marjorie H. Lawyer, HIV and Dentistry, 29 Val. U. L. Rev. 297 (1994). Lawyer analyzes the competing interests of both dentist and patient, and argues that current guidelines and practices are a piecemeal reaction to a growing problem which needs to be reevaluated to develop a comprehensive approach to the special risks and circumstances in dental practice.

Prepared By:

  • Scott M. Davies, '97
  • H. Marlow Green, '97
  • Edward M. Lilly, '96
  • Marc E. Mangum, '97
  • Anne R. Myers, '97
If you have views about the Court's decision or this LII commentary on it that you would like to share, the LII editors would be pleased to hear from you via an e-mail message to: editors@lii.law.cornell.edu