DUMPING HIV-INFECTED PATIENTS FROM PRIVATE PRACTICE Scott H. Isaacman, MS, DO, JD Chicago, Illinois Physicians in private practice believe they have the freedom to accept or exclude patients. While this may be true on an individual basis, discrimination towards a patient subpopulation violates professional principles and the law. Once the doctor-patient relationship is formed, physicians may not unilaterally and arbitrarily withdraw from the relationship based solely on the patient's human immunodeficiency virus (HIV) serostatus. This article reviews civil and human rights laws along with professional position statements on excluding individuals from care because of their serostatus. (J Nati Med Assoc. 1991;83:961-965.) Key words * discrimination * ethics * prejudice * human immunodeficiency virus A recent New York case of possible patient abandonment and discrimination merits the attention of the medical community. The facts, as determined from the court reporter,' are briefly summarized. Dr Daniel Elstein, an orthopedic surgeon, treated a patient for costochondritis and chronic cervical sprain for 4 years. When the patient informed the doctor that he was diagnosed with acquired immunodeficiency syndrome (AIDS), the physician refused to continue providing care for the patient's ongoing orthopedic problems. The patient then filed a complaint with the State Division of Human Rights charging Dr Elstein with violating the New York Human Rights Law.2 Elstein answered the charge by filing a court challenge to the administrative agency's jurisdiction over his practice, claiming that his office was not a place of "public accommodation"-the very same claim used in courts to deny delivery of medical services to persons of color.3 The facts of this case may be unique, but physician4-9 From the John Marshall Law School, Chicago, Illinois. Requests for reprints should be addressed to Dr Scott H. Isaacman, John Marshall Law School, 315 S Plymouth Ct, Chicago, IL 60604. JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
and hospital'0-'3 exclusion and abandonment of persons with human immunodeficiency virus (HIV) or AIDS are not.14'15 While the medical community may wish to believe this conduct is rare, reports of denial of care (New York Times. June 25, 1986:28; July 11, 1987:1; September 10, 1987:B1; November 13, 1987:A14) and surveys of professionals' attitudes16"17 lead to the opposite conclusion. Given the fact that HIV and AIDS patients have a limited life span and must cope with a physically and emotionally devastating disease, those who consult lawyers and file cases represent the tip of the iceberg. Most patients do not have the energy, stamina, or resources to challenge discriminatory practices by healthcare providers. As the number of individuals infected with HIV and AIDS steadily increases and the number of discrimination cases similarly increase, some attention must be devoted to this facet of health-care delivery. Exclusion of persons infected with HIV and AIDS, in many instances, translates into discrimination against the poor'8 and persons of color.'9 Infection with HIV or AIDS does not discriminate against persons of color20 and has a high prevalence in urban areas.21 Recent statistics show a telling effect upon women22 and children of color. 19'23 Discrimination against persons with HIV and AIDS concerns the "of color" community, as demonstrated by the involvement of the NAACP Legal Defense and Educational Fund, Center for Law and Social Justice at Medgar Evers College, National Conference of Black Lawyers, New York Black Women's Health Project, Puerto Rican Legal Defense and Education Fund, and the Asian American Legal Defense and Education Fund as amici curiae.24 This brief article examines whether physicians in private practice can discriminate by reviewing professional position statements, ethical guidelines, and some of the laws that prohibit discrimination. This article does not address appropriate referrals from one physician to another based on the lack of the referring doctor's expertise in managing AIDS. 961
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PHYSICIANS MAY NOT ARBITRARILY UNILATERALLY TERMINATE A DOCTORPATIENT RELATIONSHIP A popular conviction is: "This is a free country, and I can do as I please." There is freedom to act as one chooses, but adverse consequences may result. One may conclude from the language of various professional statements25'26 that doctors may, prior to entering a physician-patient relationship, choose to decline to form such a relationship. Once the relationship has begun, however, unilateral and arbitrary termination by the physician can result in claims of abandonment or patient neglect based on common law27-33 or statute.34 Such conduct also can result in allegations of violation of professional codes. In some states, violation of a professional code is grounds for administrative agency disciplinary action.35 Regarding patient abandonment, professional associations25'26 say that physicians must: * give notice to the patient or his or her guardian, and * allow the patient or his or her guardian time to find a substitute physician in order to withdraw from the relationship. Case law spans a full century with civil suits based on abandonment36 and prior case law exists concerning denial of services based on color37 and handicap.38
DENIAL OF CARE BASED ON HIV STATUS MAY REPRESENT ARBITRARY UNILATERAL TERMINATION OF THE DOCTOR-PATIENT RELATIONSHIP There are several legitimate reasons to end the doctor-patient relationship. For example, when a physician is no longer capable of caring for patients because of physical disability, sexual attraction, or when the patient's illness is beyond the doctor's expertise, there are compelling reasons to transfer care to another physician. When none of these conditions is met and when the patient pays his or her bills, the general rule is that the doctor-patient relationship can be severed only upon mutual agreement of the doctor and the patient or upon the patient's demand. In other words, the physician should have a valid reason in order to terminate the relationship. Is fear or prejudice a valid reason? Society sets the norms for what is and is not valid. Blanket discrimination against a class of persons affronts societal norms that are reflected in both medical codes and the law. Although professional associations support the free choice of physicians in forming the doctor-patient relationship, the "right" to exercise discretion in patient selection is qualified. The 962
AMAXs Current Opinions states: 9.12 Physician-Patient Relationship: Respect for Law and Human Rights. The creation of the physicianpatient relationship is contractual in nature. Generally, both the physician and the patient are free to enter into or decline the relationship. A physician may decline to undertake the care of a patient whose medical condition is not within the physician's current competence. However, physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, or any other basis that would constitute illegal discrimination. Furthermore, physicians who are obligated under preexisting contractual arrangements may not decline to accept patients as provided by those arrangements.25
The catch-all phrase, "or any other basis that would constitute illegal discrimination," implicitly includes discrimination based on handicap because of the laws discussed below. The American Osteopathic Association expressly includes discrimination based on handi-
cap.26 The physician's ability to decline to enter a doctorpatient relationship and the physician's duty to respect civil rights laws are not mutually exclusive. The plain meaning of the statements in their entirety is that physicians may exercise discretion in selecting individual patients but may not exclude an entire class of individuals from their practice on the basis of personal distaste. The problem of physician discrimination against persons with HIV and AIDS has been significant enough to merit special mention by several professional associations. The AMA has stated: Ethical Responsibility. A physician may not ethically refuse to treat a patient whose condition is within the physician's current realm of confidence solely because the patient is HIV seropositive. Persons who are seropositive should not be subjected to discrimination based on fear or prejudice. Physicians who are unable to provide the services required by HIV-infected patients should make referrals to those physicians or facilities equipped to provide such services.39
Several other professional associations, including the American Academy of Orthopaedic Surgeons (AAOS), issued position statements addressing denial of services to persons with HIV and AIDS. The AAOS stated: E. Responsibilities Toward All Patients. Orthopaedic surgeons, like all physicians, accept a moral and ethical responsibility for providing care to all patients with compassion and dignity. The orthopaedic surgeon JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
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should take whatever precautions she or he deems appropriate when treating an HIV-positive patient or one who is suspected of being HIV-positive.
RegardlessofHIVstatus,allpatientsshouldhaveaccessto qualityorthopaediccare.Treatmentconsiderationsshould provideforajudiciousbalancebetweenthewell-beingofall
patients,includingHIV-positivepatients,andtheprotection ofthepublichealthaswellasorthopaedicsurgeonsandtheir
staffs.40 Unequal treatment of persons belonging to subpopulations has a long and ugly history in this country. Civil rights laws,41 enacted to combat such mistreatment, have found application both in public and private settings.42 Almost all states have statutes prohibiting private sector discrimination against handicapped persons.43 Some states include refusing to provide professional services because of race, color, religion, and national origin in the statutory definition of professional misconduct.44 The Rehabilitation Act of 1973 was one of the first major federal statutes to address discrimination against the handicapped. The Arline45 decision, which ruled that a person with tuberculosis was considered handicapped and could use the statute as a basis for legally challenging employment termination, marked the application of handicap law toward persons with infectious diseases. The Civil Rights Restoration Act of 1987,46 reemphasized the intended broad interpretation of the statute and the definition of handicapped (Table 1). The law applies to health-care facilities47 and has been applied to health-care facilities.48-52 In addition, the recently enacted Americans With Disabilities Act53 expressly includes professional offices54 in the definition of private entities considered as places of public accommodation (Table 2). Similarly, several states and several major cities enacted human rights or civil rights statutes that expressly prohibit discrimination based on handicap or perceived handicap55 60 (Table 3). Just as courts have applied the federal law to health-care facilities, state courts and administrative agencies are beginning to apply civil rights laws to doctors.7-9'6166 These laws make clear that the human and civil rights statutes, which prohibit ordinary businesses from discriminating against groups of people, apply with equal force to the practice of medicine.
BALANCING FREEDOM OF CHOICE WITH PROHIBITED DISCRIMINATION When the professional statements are viewed in their entirety, it is clear that the "freedom of choice" physicians may exercise is to be interpreted narrowly and within existing legal constraints. Freedom of choice JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
TABLE 1. FEDERAL LAW PROHIBITING DISCRIMINATION 29 U.S.C.S. sec. 794 (1989). No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance... (b) "Program or activity" defined For the purposes of this section, the term "program or activity" means all of the operations of... (3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietor-
ship(ii) which is principally engaged in the business of
providing education, health care,.... 29 U.S.C.S. sec. 706(8)(B) (1989). ... the term "individual with handicaps" means, . . any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.
relates to selection of individual patients and does not allow carte blanche exclusion of subpopulations. Inclusion of antidiscrimination provisions makes this point clear. Additional statements that specifically address HIV and AIDS discrimination in professional practice leave little doubt that such conduct is unethical. As the first page of the AMA Council on Ethical and Judicial Affairs' Current Opinions makes clear: "[un]ethical conduct involving moral principles, values and duties calls for disciplinary action such as censure, suspension, or expulsion from medical society membership."26 What remains unclear is why professional societies have done little else beside issue position statements. When the profession fails to regulate itself the courts and the legislatures step in to fill the gap-and they are stepping. The lawful practice of medicine depends on the state's issuance of a license. This license can be subjected to disciplinary action and the practice of medicine can be regulated by government agencies in the furtherance of legitimate health and welfare concerns. States use this legal principle with mandatory Medicare assignment. With the pervasive involvement of government in the state's issuance of licenses, the federal government and third party payers in reimbursements, federal and state funding of medical educational institutions and hospitals, and numerous other regulations, private practice can hardly be considered private. Physicians may feel free to 963
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TABLE 2. AMERICANS WITH DISABILITIES ACT Sec. 301 Public Accommodation. The following private entities are considered public accommodations for purposes of this title, if the operations affect commerce... (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; Sec. 302 Prohibition of Discrimination by Public Accommodations. (a) General Rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. (b) Construction. (1) General Prohibition. (A) Activities. (i) Denial of Participation. It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through..., to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an en-
tity...
(2) Specific Prohibitions. (A) Discrimination. For purposes of subsection (a), discrimination includes (i) the imposition of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations of an entity, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered. P.L. 101-336, 104 Stat 355-6 USCCAN (1990).
exclude whomever they please from practice, but administrative agencies and courts are obliged to hold physicians accountable for violating the law. Acknowledgment The author thanks James Smith of the AIDS Legal Council of Chicago and John Hammell of the American Civil Liberties Union for information concerning health-care discrimination cases in the Chicago metropolitan area.
Literature Cited 1. Elstein v State Division of Human Rights, 555 NYS2d 516 (NYAD 4 Dept 1990). 2. Section 290 of New York Executive Law (McKinney 1990). 964
TABLE 3. STATE LAWS PROHIBITING DISCRIMINATION Mont Code Ann 50-5-105 (1989). Discrimination Prohibited. (1) All phases of the operation of a health care facility shall be without discrimination against anyone on the basis of race, creed, religion, color, national origin, sex, age, marital status, physical or mental handicap, or political ideas. (2) (a) A health care facility may not refuse to admit a person to the facility solely because the person has an HIV-related condition... (3) A person who operates a facility may not discriminate among the patients of licensed physicians. The free and confidential professional relationship between a licensed physician shall continue and remain unaffected. New York Executive Law sec 290 et seq (McKinney 1 990). 290. Purposes of article.. .[T]o assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundations of a free democratic state and threatens the.. .safety and general welfare of the state and its inhabitants. . .to eliminate and prevent discrimination in employment, in places of public accommodation, .... 292. Definitions 9. The term "place of public accommodation, resort or amusement" shall include, ...wholesale and retail stores and establishments dealing with goods or services of any kind, dispensaries, clinics, hospitals, .... 21. The term "disability" means (a) a physical, mental or medical impairment... .which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment... 3. Rice v Rinaldo, 1 19 NE2d 657 (Ohio App 1951). 4. Elstein v State Division of Human Rights, 555 NYS2d 516 (NYAD 4 Dept 1990). 5. Hurwitz v New York City Commission on Human Rights, 553 NYS2d 323 (NYAD 1 Dept 1990). 6. Sattler v New York City Commission on Human Rights, 554 NYS2d 763 (Sup Ct WC 1990). 7. 'Discrimination' case concludes in settlement. ADA News. 1989;20(14):1 ,1 1,15. 8. Robertson v Chen, No. 1 989SP0061 (Illinois Dept Human Rights, filed Dec 16, 1988). 9. G.S. vBaksh, ALS No.2810 (Illinois Dept Human Rights,
Sept 26, 1988). 10. Doe v Shasta Hospital, Cooperating Attorney Update, JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
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Lambda Legal Defense and Education Fund, Inc. (September/ October 1989). 11. Doe v Howard University Hospital, Cooperating Attorney Update, Lambda Legal Defense and Education Fund, Inc. (September/October 1989). 12. Doe v Centinela Hospital, No. CV 87-2514 (USDC CA June 30, 1988). 13. Doe v Lankenau Hospital, No. 88-8007 (USDC ED Pa, filed October 18, 1988). 14. AIDS Legal Council of Chicago and the Chicago ACLU chapter recorded over fifty cases during 1989-90. 15. ACLU AIDS Project Report. Epidemic of Fear: A Survey of AIDS Discrimination in the 1980s and Policy Recommendations for the 1990s. New York, NY: American Civil Liberties Union; 1990:31-32. 16. Bresolin LB, Rinaldi RC, Henning JJ, et al. Attitudes of US primary care physicians about HIV disease and AIDS. AIDS Care. 1990;2:117-125. 17. Kelly JA, St Lawrence JS, Smith S, et al. Stigmatization of AIDS patients by physicians. Am J Public Health. 1987;77:789-791. 18. Kruger LE, Wood RW, Diehr PH, Maxwell CL. Poverty and HIV seropositivity: the poor are more likely to be infected. AIDS. 1990;4:811-814. 19. Gayle JA, Selik RM, Chu SY. Surveillance for AIDS and HIV infection among black and Hispanic children and women of childbearing age, 1981-1989. MMWR. 1990;39(supp SS-3):23. 20. Nickens H. AIDS among blacks in the 1990s. J Natl Med Assoc. 1990;82:239-242. 21. Stoneburner RL, Chiasson MA, Weisfuse IB, Thomas PA. The epidemic of AIDS and HIV-1 infection among heterosexuals in New York City. AIDS. 1990;4:99-106. 22. AIDS in women-United States. MMWR. 1990;39:845846. 23. National Institute of Health. The New Face of AIDS: A Maternal and Pediatric Epidemic. Washington, DC: Government Printing Office; 1990. US Dept of Health and Human Services. 24. Hurwitz v New York City Commission on Human Rights, No. 7204/88 (Nov 8,1989). 25. Council on Ethical and Judicial Affairs of the American Medical Association. Current Opinions. Chicago, III: American Medical Association; 1989: ix, 1, 33, 35. 26. AOA Yearbook and Directory 1990. Chicago, III: American Osteopathic Association; 1990:481. 27. Magana v Elie, 108 III App 3d 1028, 439 NE2d 1319
(1982). 28. Katsetos v Nolan, 107 Conn 637, 368 A2d 172 (1976). 29. Lee v Dewbre, 362 SW2d 900 (Tex Civ App 1962). 30. McGulpir v Bessmer; 241 Iowa 1119, 43 NW2d 121
(1950). 31. Meiselman v Crown Heights Hospital, 285 NY 389, 34 NE2d 367 (1941). 32. Medical Malpractice. American Law Reports 2d 1958;57:432-464. 33. Physicians, Surgeons, and Other Healers sec 234-232. American Jurisprudence 2d. 1981 ;61 :365-369. 34. III Rev Stat ch 111, sec 4400-22(16) (1989). 35. Ohio Rev Code Ann sec 4731.22(18) (Page 1990).
JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
36. Becker v Janiski, 15 NYS 675. 37. Washington v Blampin, 38 Cal Rptr 235 (App 2d 1964). 38. Lyons v Grether, 239 SE2d 103 (Va 1977). 39. American Medical Association. HIV Policy for the '90s, (Report X: AMA HIV Update) Report of the Board of Trustees. Chicago, III: American Medical Association; 1989:17 (Interim 1989 House of Delegates Meeting). 40. AAOS Task Force on AIDS and Orthopaedic Surgery. Recommendations for the Prevention of Human Immunodeficiency Virus (HIV) Transmission in the Practice of Orthopaedic Surgery. Park Ridge, III: American Academy of Orthopaedic Surgeons. 1989:17. 41. 42 USC sec 1981, 1983, 1985, 2000 (1988). 42. Roberts v United States Jaycees, 468 US 610 (1984). 43. Wasson RR AIDS discrimination under federal, state, and local law after Arline. Fla St U L Rev 1987;15:221-278. 44. NY Educ Law sec 6509(6) (McKinney 1985). 45. School Board of Nassau County v Arline, 480 US 273 (1987). 46. Civil Rights Restoration Act of 1987, Public Law 100-259, 102 Stat 28 (1988). 47. 29 USC sec 794(b)(3)(A)(ii) (1989 Supp). 48. Frazier v Northwest Mississippi Regional Medical Center, 765 F2d 1278 (5th Cir 1985). 49. United States v Baylor University Medical Center, 736 F2d 1039 (5th Cir 1984). 50. United States v University Hospital of SUNY Stony Brook, 575 F Supp 607 (EDNY 1983), aff'd 729 F.2d 144 (2d Cir 1984). 51. Bemard B vBlue Cross and Blue Shield, 528 F Supp 125 (SDNY 1981), aff'd 679 F2d 7 (2d Cir 1982). 52. United States v Cabrini Medical Center, 497 F Supp 95 (SDNY 1980), rev'd on other grounds 639 F2d 908 (2d Cir 1981). 53. Americans With Disabilities Act of 1990, Public Law 101-336, 104 Stat 327 USCCAN (1990). 54. Title III-Public Accommodations and Services Operated by Private Entities. sec 301 (7)(F), 104 Stat 354 USCCAN (1 990). 55. Cal Civil Code Ann sec 51 et seq (West 1990). 56. III Rev Stat ch 68, sec 1 -101 et seq (1987) and 56111 Adm Code 2500 (1986). 57. NY Executive Law sec 290 et seq (McKinney 1990). 58. Montana Code Ann. 49-1-102 et seq and 50-5-105
(1989).
59. 1989 Wis Act 201 (1990). 60. Wash Rev Code sec 72.24 (1987). 61. Estate of Campanella v Hurwitz, No. 87-203 PA (NYC Comm Human Rights July 31, 1991). 62. Barton v New York City Commission on Human Rights, No. 01134/88, (Sup Ct NY Cty July 11, 1988). 63. Samper v University of Rochester, 535 NYS2d 281 (SCAD 4 Dept 1988). 64. Sharma v Axelrod, 515 NYS2d 1019 (SCAD 4 Dept 1987). 65. Leach v Drummond Medical Group, 192 Cal Rptr 650 (App 5th 1983). 66. Rochester Hospital Service Corp v Division of Human Rights, 401 NYS2d 413 (SCMC 1977).
965
and hospital'0-'3 exclusion and abandonment of persons with human immunodeficiency virus (HIV) or AIDS are not.14'15 While the medical community may wish to believe this conduct is rare, reports of denial of care (New York Times. June 25, 1986:28; July 11, 1987:1; September 10, 1987:B1; November 13, 1987:A14) and surveys of professionals' attitudes16"17 lead to the opposite conclusion. Given the fact that HIV and AIDS patients have a limited life span and must cope with a physically and emotionally devastating disease, those who consult lawyers and file cases represent the tip of the iceberg. Most patients do not have the energy, stamina, or resources to challenge discriminatory practices by healthcare providers. As the number of individuals infected with HIV and AIDS steadily increases and the number of discrimination cases similarly increase, some attention must be devoted to this facet of health-care delivery. Exclusion of persons infected with HIV and AIDS, in many instances, translates into discrimination against the poor'8 and persons of color.'9 Infection with HIV or AIDS does not discriminate against persons of color20 and has a high prevalence in urban areas.21 Recent statistics show a telling effect upon women22 and children of color. 19'23 Discrimination against persons with HIV and AIDS concerns the "of color" community, as demonstrated by the involvement of the NAACP Legal Defense and Educational Fund, Center for Law and Social Justice at Medgar Evers College, National Conference of Black Lawyers, New York Black Women's Health Project, Puerto Rican Legal Defense and Education Fund, and the Asian American Legal Defense and Education Fund as amici curiae.24 This brief article examines whether physicians in private practice can discriminate by reviewing professional position statements, ethical guidelines, and some of the laws that prohibit discrimination. This article does not address appropriate referrals from one physician to another based on the lack of the referring doctor's expertise in managing AIDS. 961
DUMPING HIV PATIENTS
PHYSICIANS MAY NOT ARBITRARILY UNILATERALLY TERMINATE A DOCTORPATIENT RELATIONSHIP A popular conviction is: "This is a free country, and I can do as I please." There is freedom to act as one chooses, but adverse consequences may result. One may conclude from the language of various professional statements25'26 that doctors may, prior to entering a physician-patient relationship, choose to decline to form such a relationship. Once the relationship has begun, however, unilateral and arbitrary termination by the physician can result in claims of abandonment or patient neglect based on common law27-33 or statute.34 Such conduct also can result in allegations of violation of professional codes. In some states, violation of a professional code is grounds for administrative agency disciplinary action.35 Regarding patient abandonment, professional associations25'26 say that physicians must: * give notice to the patient or his or her guardian, and * allow the patient or his or her guardian time to find a substitute physician in order to withdraw from the relationship. Case law spans a full century with civil suits based on abandonment36 and prior case law exists concerning denial of services based on color37 and handicap.38
DENIAL OF CARE BASED ON HIV STATUS MAY REPRESENT ARBITRARY UNILATERAL TERMINATION OF THE DOCTOR-PATIENT RELATIONSHIP There are several legitimate reasons to end the doctor-patient relationship. For example, when a physician is no longer capable of caring for patients because of physical disability, sexual attraction, or when the patient's illness is beyond the doctor's expertise, there are compelling reasons to transfer care to another physician. When none of these conditions is met and when the patient pays his or her bills, the general rule is that the doctor-patient relationship can be severed only upon mutual agreement of the doctor and the patient or upon the patient's demand. In other words, the physician should have a valid reason in order to terminate the relationship. Is fear or prejudice a valid reason? Society sets the norms for what is and is not valid. Blanket discrimination against a class of persons affronts societal norms that are reflected in both medical codes and the law. Although professional associations support the free choice of physicians in forming the doctor-patient relationship, the "right" to exercise discretion in patient selection is qualified. The 962
AMAXs Current Opinions states: 9.12 Physician-Patient Relationship: Respect for Law and Human Rights. The creation of the physicianpatient relationship is contractual in nature. Generally, both the physician and the patient are free to enter into or decline the relationship. A physician may decline to undertake the care of a patient whose medical condition is not within the physician's current competence. However, physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, or any other basis that would constitute illegal discrimination. Furthermore, physicians who are obligated under preexisting contractual arrangements may not decline to accept patients as provided by those arrangements.25
The catch-all phrase, "or any other basis that would constitute illegal discrimination," implicitly includes discrimination based on handicap because of the laws discussed below. The American Osteopathic Association expressly includes discrimination based on handi-
cap.26 The physician's ability to decline to enter a doctorpatient relationship and the physician's duty to respect civil rights laws are not mutually exclusive. The plain meaning of the statements in their entirety is that physicians may exercise discretion in selecting individual patients but may not exclude an entire class of individuals from their practice on the basis of personal distaste. The problem of physician discrimination against persons with HIV and AIDS has been significant enough to merit special mention by several professional associations. The AMA has stated: Ethical Responsibility. A physician may not ethically refuse to treat a patient whose condition is within the physician's current realm of confidence solely because the patient is HIV seropositive. Persons who are seropositive should not be subjected to discrimination based on fear or prejudice. Physicians who are unable to provide the services required by HIV-infected patients should make referrals to those physicians or facilities equipped to provide such services.39
Several other professional associations, including the American Academy of Orthopaedic Surgeons (AAOS), issued position statements addressing denial of services to persons with HIV and AIDS. The AAOS stated: E. Responsibilities Toward All Patients. Orthopaedic surgeons, like all physicians, accept a moral and ethical responsibility for providing care to all patients with compassion and dignity. The orthopaedic surgeon JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
DUMPING HIV PATIENTS
should take whatever precautions she or he deems appropriate when treating an HIV-positive patient or one who is suspected of being HIV-positive.
RegardlessofHIVstatus,allpatientsshouldhaveaccessto qualityorthopaediccare.Treatmentconsiderationsshould provideforajudiciousbalancebetweenthewell-beingofall
patients,includingHIV-positivepatients,andtheprotection ofthepublichealthaswellasorthopaedicsurgeonsandtheir
staffs.40 Unequal treatment of persons belonging to subpopulations has a long and ugly history in this country. Civil rights laws,41 enacted to combat such mistreatment, have found application both in public and private settings.42 Almost all states have statutes prohibiting private sector discrimination against handicapped persons.43 Some states include refusing to provide professional services because of race, color, religion, and national origin in the statutory definition of professional misconduct.44 The Rehabilitation Act of 1973 was one of the first major federal statutes to address discrimination against the handicapped. The Arline45 decision, which ruled that a person with tuberculosis was considered handicapped and could use the statute as a basis for legally challenging employment termination, marked the application of handicap law toward persons with infectious diseases. The Civil Rights Restoration Act of 1987,46 reemphasized the intended broad interpretation of the statute and the definition of handicapped (Table 1). The law applies to health-care facilities47 and has been applied to health-care facilities.48-52 In addition, the recently enacted Americans With Disabilities Act53 expressly includes professional offices54 in the definition of private entities considered as places of public accommodation (Table 2). Similarly, several states and several major cities enacted human rights or civil rights statutes that expressly prohibit discrimination based on handicap or perceived handicap55 60 (Table 3). Just as courts have applied the federal law to health-care facilities, state courts and administrative agencies are beginning to apply civil rights laws to doctors.7-9'6166 These laws make clear that the human and civil rights statutes, which prohibit ordinary businesses from discriminating against groups of people, apply with equal force to the practice of medicine.
BALANCING FREEDOM OF CHOICE WITH PROHIBITED DISCRIMINATION When the professional statements are viewed in their entirety, it is clear that the "freedom of choice" physicians may exercise is to be interpreted narrowly and within existing legal constraints. Freedom of choice JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
TABLE 1. FEDERAL LAW PROHIBITING DISCRIMINATION 29 U.S.C.S. sec. 794 (1989). No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance... (b) "Program or activity" defined For the purposes of this section, the term "program or activity" means all of the operations of... (3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietor-
ship(ii) which is principally engaged in the business of
providing education, health care,.... 29 U.S.C.S. sec. 706(8)(B) (1989). ... the term "individual with handicaps" means, . . any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.
relates to selection of individual patients and does not allow carte blanche exclusion of subpopulations. Inclusion of antidiscrimination provisions makes this point clear. Additional statements that specifically address HIV and AIDS discrimination in professional practice leave little doubt that such conduct is unethical. As the first page of the AMA Council on Ethical and Judicial Affairs' Current Opinions makes clear: "[un]ethical conduct involving moral principles, values and duties calls for disciplinary action such as censure, suspension, or expulsion from medical society membership."26 What remains unclear is why professional societies have done little else beside issue position statements. When the profession fails to regulate itself the courts and the legislatures step in to fill the gap-and they are stepping. The lawful practice of medicine depends on the state's issuance of a license. This license can be subjected to disciplinary action and the practice of medicine can be regulated by government agencies in the furtherance of legitimate health and welfare concerns. States use this legal principle with mandatory Medicare assignment. With the pervasive involvement of government in the state's issuance of licenses, the federal government and third party payers in reimbursements, federal and state funding of medical educational institutions and hospitals, and numerous other regulations, private practice can hardly be considered private. Physicians may feel free to 963
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TABLE 2. AMERICANS WITH DISABILITIES ACT Sec. 301 Public Accommodation. The following private entities are considered public accommodations for purposes of this title, if the operations affect commerce... (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; Sec. 302 Prohibition of Discrimination by Public Accommodations. (a) General Rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. (b) Construction. (1) General Prohibition. (A) Activities. (i) Denial of Participation. It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through..., to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an en-
tity...
(2) Specific Prohibitions. (A) Discrimination. For purposes of subsection (a), discrimination includes (i) the imposition of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations of an entity, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered. P.L. 101-336, 104 Stat 355-6 USCCAN (1990).
exclude whomever they please from practice, but administrative agencies and courts are obliged to hold physicians accountable for violating the law. Acknowledgment The author thanks James Smith of the AIDS Legal Council of Chicago and John Hammell of the American Civil Liberties Union for information concerning health-care discrimination cases in the Chicago metropolitan area.
Literature Cited 1. Elstein v State Division of Human Rights, 555 NYS2d 516 (NYAD 4 Dept 1990). 2. Section 290 of New York Executive Law (McKinney 1990). 964
TABLE 3. STATE LAWS PROHIBITING DISCRIMINATION Mont Code Ann 50-5-105 (1989). Discrimination Prohibited. (1) All phases of the operation of a health care facility shall be without discrimination against anyone on the basis of race, creed, religion, color, national origin, sex, age, marital status, physical or mental handicap, or political ideas. (2) (a) A health care facility may not refuse to admit a person to the facility solely because the person has an HIV-related condition... (3) A person who operates a facility may not discriminate among the patients of licensed physicians. The free and confidential professional relationship between a licensed physician shall continue and remain unaffected. New York Executive Law sec 290 et seq (McKinney 1 990). 290. Purposes of article.. .[T]o assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundations of a free democratic state and threatens the.. .safety and general welfare of the state and its inhabitants. . .to eliminate and prevent discrimination in employment, in places of public accommodation, .... 292. Definitions 9. The term "place of public accommodation, resort or amusement" shall include, ...wholesale and retail stores and establishments dealing with goods or services of any kind, dispensaries, clinics, hospitals, .... 21. The term "disability" means (a) a physical, mental or medical impairment... .which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment... 3. Rice v Rinaldo, 1 19 NE2d 657 (Ohio App 1951). 4. Elstein v State Division of Human Rights, 555 NYS2d 516 (NYAD 4 Dept 1990). 5. Hurwitz v New York City Commission on Human Rights, 553 NYS2d 323 (NYAD 1 Dept 1990). 6. Sattler v New York City Commission on Human Rights, 554 NYS2d 763 (Sup Ct WC 1990). 7. 'Discrimination' case concludes in settlement. ADA News. 1989;20(14):1 ,1 1,15. 8. Robertson v Chen, No. 1 989SP0061 (Illinois Dept Human Rights, filed Dec 16, 1988). 9. G.S. vBaksh, ALS No.2810 (Illinois Dept Human Rights,
Sept 26, 1988). 10. Doe v Shasta Hospital, Cooperating Attorney Update, JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 83, NO. 11
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Lambda Legal Defense and Education Fund, Inc. (September/ October 1989). 11. Doe v Howard University Hospital, Cooperating Attorney Update, Lambda Legal Defense and Education Fund, Inc. (September/October 1989). 12. Doe v Centinela Hospital, No. CV 87-2514 (USDC CA June 30, 1988). 13. Doe v Lankenau Hospital, No. 88-8007 (USDC ED Pa, filed October 18, 1988). 14. AIDS Legal Council of Chicago and the Chicago ACLU chapter recorded over fifty cases during 1989-90. 15. ACLU AIDS Project Report. Epidemic of Fear: A Survey of AIDS Discrimination in the 1980s and Policy Recommendations for the 1990s. New York, NY: American Civil Liberties Union; 1990:31-32. 16. Bresolin LB, Rinaldi RC, Henning JJ, et al. Attitudes of US primary care physicians about HIV disease and AIDS. AIDS Care. 1990;2:117-125. 17. Kelly JA, St Lawrence JS, Smith S, et al. Stigmatization of AIDS patients by physicians. Am J Public Health. 1987;77:789-791. 18. Kruger LE, Wood RW, Diehr PH, Maxwell CL. Poverty and HIV seropositivity: the poor are more likely to be infected. AIDS. 1990;4:811-814. 19. Gayle JA, Selik RM, Chu SY. Surveillance for AIDS and HIV infection among black and Hispanic children and women of childbearing age, 1981-1989. MMWR. 1990;39(supp SS-3):23. 20. Nickens H. AIDS among blacks in the 1990s. J Natl Med Assoc. 1990;82:239-242. 21. Stoneburner RL, Chiasson MA, Weisfuse IB, Thomas PA. The epidemic of AIDS and HIV-1 infection among heterosexuals in New York City. AIDS. 1990;4:99-106. 22. AIDS in women-United States. MMWR. 1990;39:845846. 23. National Institute of Health. The New Face of AIDS: A Maternal and Pediatric Epidemic. Washington, DC: Government Printing Office; 1990. US Dept of Health and Human Services. 24. Hurwitz v New York City Commission on Human Rights, No. 7204/88 (Nov 8,1989). 25. Council on Ethical and Judicial Affairs of the American Medical Association. Current Opinions. Chicago, III: American Medical Association; 1989: ix, 1, 33, 35. 26. AOA Yearbook and Directory 1990. Chicago, III: American Osteopathic Association; 1990:481. 27. Magana v Elie, 108 III App 3d 1028, 439 NE2d 1319
(1982). 28. Katsetos v Nolan, 107 Conn 637, 368 A2d 172 (1976). 29. Lee v Dewbre, 362 SW2d 900 (Tex Civ App 1962). 30. McGulpir v Bessmer; 241 Iowa 1119, 43 NW2d 121
(1950). 31. Meiselman v Crown Heights Hospital, 285 NY 389, 34 NE2d 367 (1941). 32. Medical Malpractice. American Law Reports 2d 1958;57:432-464. 33. Physicians, Surgeons, and Other Healers sec 234-232. American Jurisprudence 2d. 1981 ;61 :365-369. 34. III Rev Stat ch 111, sec 4400-22(16) (1989). 35. Ohio Rev Code Ann sec 4731.22(18) (Page 1990).
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36. Becker v Janiski, 15 NYS 675. 37. Washington v Blampin, 38 Cal Rptr 235 (App 2d 1964). 38. Lyons v Grether, 239 SE2d 103 (Va 1977). 39. American Medical Association. HIV Policy for the '90s, (Report X: AMA HIV Update) Report of the Board of Trustees. Chicago, III: American Medical Association; 1989:17 (Interim 1989 House of Delegates Meeting). 40. AAOS Task Force on AIDS and Orthopaedic Surgery. Recommendations for the Prevention of Human Immunodeficiency Virus (HIV) Transmission in the Practice of Orthopaedic Surgery. Park Ridge, III: American Academy of Orthopaedic Surgeons. 1989:17. 41. 42 USC sec 1981, 1983, 1985, 2000 (1988). 42. Roberts v United States Jaycees, 468 US 610 (1984). 43. Wasson RR AIDS discrimination under federal, state, and local law after Arline. Fla St U L Rev 1987;15:221-278. 44. NY Educ Law sec 6509(6) (McKinney 1985). 45. School Board of Nassau County v Arline, 480 US 273 (1987). 46. Civil Rights Restoration Act of 1987, Public Law 100-259, 102 Stat 28 (1988). 47. 29 USC sec 794(b)(3)(A)(ii) (1989 Supp). 48. Frazier v Northwest Mississippi Regional Medical Center, 765 F2d 1278 (5th Cir 1985). 49. United States v Baylor University Medical Center, 736 F2d 1039 (5th Cir 1984). 50. United States v University Hospital of SUNY Stony Brook, 575 F Supp 607 (EDNY 1983), aff'd 729 F.2d 144 (2d Cir 1984). 51. Bemard B vBlue Cross and Blue Shield, 528 F Supp 125 (SDNY 1981), aff'd 679 F2d 7 (2d Cir 1982). 52. United States v Cabrini Medical Center, 497 F Supp 95 (SDNY 1980), rev'd on other grounds 639 F2d 908 (2d Cir 1981). 53. Americans With Disabilities Act of 1990, Public Law 101-336, 104 Stat 327 USCCAN (1990). 54. Title III-Public Accommodations and Services Operated by Private Entities. sec 301 (7)(F), 104 Stat 354 USCCAN (1 990). 55. Cal Civil Code Ann sec 51 et seq (West 1990). 56. III Rev Stat ch 68, sec 1 -101 et seq (1987) and 56111 Adm Code 2500 (1986). 57. NY Executive Law sec 290 et seq (McKinney 1990). 58. Montana Code Ann. 49-1-102 et seq and 50-5-105
(1989).
59. 1989 Wis Act 201 (1990). 60. Wash Rev Code sec 72.24 (1987). 61. Estate of Campanella v Hurwitz, No. 87-203 PA (NYC Comm Human Rights July 31, 1991). 62. Barton v New York City Commission on Human Rights, No. 01134/88, (Sup Ct NY Cty July 11, 1988). 63. Samper v University of Rochester, 535 NYS2d 281 (SCAD 4 Dept 1988). 64. Sharma v Axelrod, 515 NYS2d 1019 (SCAD 4 Dept 1987). 65. Leach v Drummond Medical Group, 192 Cal Rptr 650 (App 5th 1983). 66. Rochester Hospital Service Corp v Division of Human Rights, 401 NYS2d 413 (SCMC 1977).
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