In 1994, Sidney Abbott filed a lawsuit against Randon Bragdon, D.M.D., in which she claimed he violated her rights under the Americans with Disabilities Act ("ADA") by refusing to perform certain invasive dental procedures on her in his office. Ms. Abbott is infected with HIV and was asymptomatic at the time.
As reported in prior issues of this newsletter, Dr. Bragdon defended against Ms. Abbott's claims at least in part on the basis that providing in-office dental care to an HIV-infected patient would subject him and others to a significant risk of contracting HIV. The First Circuit Court of Appeals rejected this argument, and the United States Supreme Court denied a request to review this issue. No further appeals remain available to Dr. Bragdon. Issues relating to the potential entitlement of Ms. Abbott's attorneys to fees remain in litigation.
The Bragdon case established the following under the ADA:
- Individuals with HIV can be covered under the ADA even though they lack symptoms. However, any individual plaintiff must demonstrate that HIV "substantially limits" that person in one or more major life activities. In Dr. Bragdon's case the Court ruled that Ms. Abbott was substantially limited in what it ruled was a major life activity, the ability to reproduce.
- Dentists and other similarly situated health care providers must make a determination on a case-by-case basis as to whether or not a particular situation poses a significant risk to the health care provider and others. This is a fact-based analysis and it has not yet been clearly established where the line will be drawn in terms of the degree of exposure. This issue was basically left undecided by the Bragdon litigation.
- The United States Supreme Court, in its original ruling, gave life to the idea that the phrase "major life activities" in the ADA can be interpreted broadly. The Court ruled against Dr. Bragdon's argument that such activities are intended to relate to issues involving independent living and economic self-sufficiency.
- The Court essentially limited the breadth of the "direct threat" defense when it stated that "few, if any, activities in life are risk-free." This issue remains alive for further litigation but the Court has given some indication that the threshold for a defendant to demonstrate that he or she will be exposed to a direct threat is relatively high.
- The Court also gave new life to the previously expressed view that federal agencies who are charged with implementing the ADA should be given deference if there is ambiguity about the meaning of the law. However, in other cases the Court has chosen to ignore this deference and therefore it is not a hard and fast rule.
- The Court clearly confirmed that an individual's good faith belief that a significant risk exists is not enough. The individual must be able to demonstrate through independent experts that an objective person relying on the most up-to-date information could reasonably conclude there is a significant risk.
Many basic issues raised by the Bragdon case remain undecided, but are likely to be dealt with by the Supreme Court in the coming years. One narrow issue that has not yet been decided is whether HIV-positive individuals can legitimately be excluded from health care, employment, or public accommodations on the basis of the direct threat defense. It is anticipated that at least two cases will be appealed to the Supreme Court in the coming term involving that issue. In the first, a karate school was not obligated under the ADA to enroll an HIV-positive student for classes based on the danger of spreading the virus to others if he cut himself and bled into the wound or mouth of another student. (Montalvo v. Radcliffe, __ F.3d __, 1999 WL 65624). In the second case, the State of Alabama did not have to integrate HIV-positive prisoners with others because of the significant risk of the communication of HIV disease, even in such activities as floral design or computer programming classes. (Onishea v. Hopper, __ F.3d __, 1999 WL 190763 (en banc)).
This newsletter will provide updates in the event these cases are heard by the Supreme Court.
Final Word:
Rudman & Winchell remains an active participant in ADA litigation by serving as counselor to parties involved in potential disputes and by analyzing new proposals to modify the ADA.