HUMAN RIGHTS - DISABILITY - AIDS - HIV - HEALTH CARE - DISEASE CONTROL
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.
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
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.
Whether the State Human Rights Law (Executive
Law Sect. 296 [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).
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
Elaine W. v. Joint Diseases N. Gen. Hosp., 81 N.Y.2d 211 (N.Y. 1983).
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).
Cited by Court
Law Sect. 296 [a].
Surgeon General's Report on AIDS, U.S. Department of Health and Human Services,
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.
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
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
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
). 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.
Scott M. Davies, '97
H. Marlow Green, '97
Edward M. Lilly, '96
Marc E. Mangum, '97
Anne R. Myers, '97
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