In 1987, the Centers for Disease Control and Prevention (CDC), in its Recommendations for Prevention of HIV Transmission in Health-Care Settings, warned dentists that ordinary precautions (i.e., the gloves, masks, instrument manipulation techniques, and so forth used on every patient to help prevent disease transmission) should be the minimum precautions for all dental procedures during which bleeding occurs or the potential for bleeding exists. In 1991, researchers from Stanford University School of Medicine recommended that dentists consider as one such additional precaution the use of high efficiency filtration masks when drilling cavities on persons known to be infected with HIV. In 1991, OSHA rejected a contention by the American Dental Association that the HIV risk to dentists is lower than the general population. OSHA found instead that a published report in the New England Journal of Medicine suggested that the risk to dentists from accidental HIV transmission is "significant." Based on surveys of the incidence of needlestick and other sharps injuries among dentists, and the likelihood of HIV infection after such accidents, the mathematical risk to dentists is about the same as the risk to dental and surgical patients, and court after court has found that the risk to patients from HIV-infected health care providers performing invasive procedures with sharp instruments, although small, is significant. Therefore, in September 1994 when Sidney Abbott came into Dr. Bragdon's dental office at the urging of AIDS activists, and told Dr. Bragdon she was HIV positive, Dr. Bragdon offered to fill her cavity, but said he would only do it in a hospital-like setting where he could take added precautions both for his sake and hers.
Now, more than four years after Ms. Abbott sued him under the ADA, Dr. Bragdon is still persevering in his attempt to put his case to a jury. Four members of the United States Supreme Court wrote last June that Dr. Bragdon "clearly" presented enough scientific evidence to have his day in court. However, three other members of the Supreme Court were not sure, and they joined with two who opposed Dr. Bragdon in sending the case back to a Boston appeals court. That court, not surprisingly, recently ruled again against Dr. Bragdon, as it did nearly two years ago. In so doing, it refused to discuss Dr. Bragdon's evidence, instead insisting that somehow Dr. Bragdon should have known from the 1987 CDC guidelines that universal precautions are the maximum precautions allowable.
Dr. Bragdon, who is represented in the case by Rudman & Winchell, LLC, is now in the process of preparing a petition to ask the United States Supreme Court to review his case again. Dr. Bragdon's hope is that the four members of the Court who already said they agree with him will try to convince one of their three colleagues, who previously expressed no opinion, to join them in ordering a trial. If Dr. Bragdon succeeds, he will finally have his day in court. If he does not, Ms. Abbott's attorneys will attempt to recover over $250,000 dollars in fees and expenses from him, all as a result of his belief that he had a right as a dentist to minimize risks to both his and his patients' health.