Department of Health and Human Services; Public Health Service, Office of the Assistant Secretary for Health Office of PHS HIV/AIDS Coordination::Director: James R. Allen, M.D., M.P.H., Project Officer: Iris Gelberg. This project was developed and prepared under PHS Contracts #89-AF-477762OID and #89-AF-477763OID - Washington, DC, 1990
Larry Gostin, Lane Porter, and Hazel Sandomire
The views and opinions expressed on the following are solely those of the authors and do not necessarily constitute an endorsement, real or implied, by the U.S. Department of Health and Human Services.
The human immunodeficiency virus (HIV) epidemic of this decade has pervaded the social fabric of our society in many profound ways. Sharp differences of perception in public health, ethics, and civil liberties have created the largest body of legal cases attributable to a single disease in the history of American jurisprudence.
AIDS litigation impacts powerfully upon many of the major social institutions of our nation--schools, health care, the blood supply, the judiciary, prisons, financing, and insurance. AIDS litigation has an equal impact upon our most cherished ethical, legal, and constitutional principles, such as privacy, confidentiality and the "right to know," freedom of speech and association, and liberty of the subject. AIDS litigation even reaches into our most intimate relationships, sparking cases within the family and against sexual partners.
This survey is written under a contract with the National AIDS Program Office of the United States Public Health Service. The report is presented in two volumes: Trends in AIDS Litigation and AIDS Litigation Project: A National Survey of Federal, State, and Local Cases Before Courts and Human Rights Commissions. Trends in AIDS Litigation describes the methodology used to collect case materials and the criteria used to select cases for inclusion. The rest of the volume summarizes trends in litigation across the country. AIDS Litigation Project: A National Survey of Federal, State, and Local Cases Before Courts and Human Rights Commissions includes the description of methodology, a subject matter outline, a discussion of how the cases have been organized, and the actual case summaries. A table of cases and an alphabetical index are also included to help locate specific cases within the text.
We have identified and summarized cases involving HIV or AIDS as of June 1, 1989. This survey includes decided, settled, pending, and filed cases at the Federal, State, and local levels. It includes not only court cases but also complaints filed with State and local human rights commissions and related administrative agencies. (See "Methodology" section. For a review of legislative trends, see Gostin, 1989d.)
We recognize that undecided judicial cases and administrative cases have no precedential value in law. Moreover, the facts alleged by the plaintiffs are often disputed. We included undecided cases for two reasons. First, undecided cases are generally more recent than decided cases. By summarizing pending cases we enable the reader to observe more recent fact patterns and to monitor trends in the case law. Second, the interest in AIDS litigation is not only with the precedential value of decided cases. We are also interested in the factual disputes that rise to the level that provokes a formal legal complaint. These fact patterns can often illuminate our understanding of the social impact of the epidemic.
The cases are classified by subject matter under a comprehensive system developed for this project (see "Subject Matter Outline"). The organizational framework adopted under each subject matter heading is as follows:
We adopted the convention in the Uniform System of Citation (the "blue book") by first listing Federal cases, then State cases, and finally municipal cases (each ranked by order of seniority of the court). (See the section on organization of cases.)
The cases and controversies revealed in this survey have, for the most part, barely caught the attention of the legislature and public health communities. Yet they represent the conflict of values, legal principles and public health policy which are likely to emerge as the major issues of the future, requiring resolution by legislatures, policymakers, and health officials.
The cases show how socially divisive the HIV epidemic has been, and will continue to be. The AIDS cases in this survey operate as a lens revealing the major public policy and social tensions of the epidemic.
This survey, then, should provide a valuable tool in forecasting the major policy and public health issues of tomorrow.
Case materials for this survey were collected from a variety of organizations and individuals. Some sources were directly involved in the litigation such as attorneys who represented parties. Other sources were parties to litigation. There were some central repositories of litigation materials collected from many other sources throughout the country. There were many individuals who simply referred us to cases.
We used five collection methods:
The case materials actually received include copies of decided cases (e.g., opinions, summary judgments, orders), administrative agency decisions (e.g., human rights commissions), case illustrations, and case commentaries.
Collection of case materials began in late October 1988 and ended in late June l989. Two updates of the AIDS Litigation Project will be completed for the National AIDS Program Office in 1990.
1. Survey
The survey letter asked for copies of court decisions or citations, or filed papers, in both decided and pending cases in all areas of civilian and military law relating to the human immunodeficiency virus (HIV).
The survey letter was sent to approximately 350 organizations or individuals throughout the country. These organizations included the members of the National Organizations Responding to AIDS (NORA), selected State public health officials, associations such as the American Bar Association and the American Medical Association, the military Office of the Judge Advocate General, civil rights groups, public interest law firms, and individual attorneys--some in general practice and some in specialty AIDS law practice.
Approximately 45 written responses to the survey letter were received. The types of responses were copies of case materials, references to other sources of cases, or that no cases were initiated or collected by the organization surveyed.
2. On-Site Case File Research and Personal Interviews
We reviewed AIDS case files and conducted personal interviews with key litigators or parties in several locations.
Early in the survey we realized there were organizations and individuals who would have initiated litigation or collected cases on AIDS. We asked and received permission to go through the case files of several of these organizations for our survey purposes.
During the period November l988 to June l989, on-site case file reviews and personal interviews were conducted in New York City, San Francisco, and Washington D.C. Litigators worked in a variety of settings, including private practice, the military office of the judge advocate generals, public interest law firms, professional associations, and government service.
American Civil Liberties Union
The ACLU files contain more than their own litigation. Their files contain clippings and reports of cases sent to them, not only by their own affiliates and chapters, but also by other organizations. We reviewed approximately 80 cases, of which 77 were selected. The ACLU search was done in June 1989.
LAMBDA Legal Defense Fund
We reviewed the files of AIDS litigation materials at LAMBDA in January and February 1989. Like the ACLU, LAMBDA's files contain far more than their own litigation. They, too, collect information and cases from other organizations. We reviewed approximately 70 case files, of which 65 were selected.
Columbia University AIDS Law Clinic
The review of case files of the Columbia University School of Law AIDS Law Clinic was done in March 1989. In the 7 months of the clinic's existence, it had handled 26 cases, of which 22 were selected.
National Gay Rights Advocates (NGRA)
Review of the case files at NGRA in San Francisco was accomplished in December 1989. Similar to other advocacy groups, the NGRA files contained case materials, correspondence, and other documents sent to them from other sources, as well as many NGRA-generated cases.
Offices of the Judge Advocate General
Personal interviews were conducted with key senior military lawyers in the Pentagon. Military cases were collected from the Army, Navy-Marine Corps, and Air Force. They cover both civil and criminal matters.
3. Annual Reports and Summary Documents
Reference was made to annual reports and other documents prepared by organizations deciding or litigating AIDS cases. Such documents often provided useful brief illustrations of cases in a variety of topical areas, such as discrimination, commercial, or criminal law. In many of the administrative law areas (e.g., human rights commissions) cases handled were typical and thus a brief summary characterization of them is included in the survey.
In addition to published and unpublished reports, we also conducted personal interviews with counsel to each organization. Counsel furnished us with updated statistics and case illustrations.
The following organizations provided assistance: New York City Human Rights Commission, San Francisco Human Rights Commission, San Francisco AIDS Legal Referral Panel, Los Angeles Office of the City Attorney, and the Office of Civil Rights of the U.S. Department of Health and Human Services.
4. Commercial Reporting Services, Newspapers, and Periodicals
When necessary because the original source document was not readily or actually available, reference was made to commercial reporting service sources or to newspapers or other periodicals.
By far the most valuable secondary source was the AIDS Litigation Reporter (ALR) published by Andrews Publications. We reviewed the entire series of biweekly issues of ALR from its inception in November 1987 to its second April issue in 1989.
5. Computerized Legal Research
A complete computerized search on WESTLAW was undertaken in March 1989. WESTLAW is a database containing reported and some unreported cases from all Federal courts. WESTLAW also reports all of the highest level State courts for each State, but only some of the lower level courts for some of the States.
We also conducted less comprehensive searches on LEXIS, a database which is comparable to WESTLAW. Most importantly, we Shepardized most case cites in the survey in June 1989. Shepardizing is a technique which generates the most up-to-date cite for court cases and indicates whether other courts have cited that case.
Case Selection Criteria
Cases were selected if they dealt with HIV issues in more than a minimalist way. For instance, in a number of cases, AIDS or HIV was mentioned in a footnote and the remainder of the case was about another type of infection. These cases were rejected. Similarly, if the litigation dealt with AIDS or HIV but the court's ruling or the litigation dealt only with technical legal procedure, such as a motion to transfer a case from the Federal court to the State court, such cases were also rejected. Where, however, procedural issues had a direct effect on the outcome of the litigation, such as the determination of the time from which the statute of limitations would run, such cases were included.
Cases were read, evaluated, summarized, and then classified according to subject matter. Often cases raised several important issues and a subjective choice was made as to where it would be classified in the subject matter outline.
Trends in AIDS Litigation
This section provides an objective description of the trends in litigation across the country. Our purpose is to describe the major fact patterns that result in cases and controversies, identify the major issues, and examine how the courts have decided them at this relatively early stage of judicial involvement in the HIV epidemic.
Numerous States have authorized and funded AIDS education in schools (Gostin l989d). In some of these States the language of the statute or regulation appears to make attendance in school AIDS education programs mandatory (although some statutes or regulations specifically allow a parent to withdraw his or her child from attendance). In Ware v. Valley Street High School District, a strict religious group asked for its children to be exempt from required AIDS education under New York law. The group members claimed that the required exposure to ideas they regarded as immoral violated their constitutional right to free expression and privacy. A New York appellate court issued a temporary injunction compelling the education authorities to exempt the children.
Other statutes address the content of AIDS education. The Federal Helms amendment prohibits Federal funds from being used to provide AIDS education activities that "promote or encourage, directly, homosexual activities." Several States have enacted statutes based upon the Helms amendment. The Gay Men's Health Crisis v. Bowen challenges the constitutionality of the Helms amendment because it inhibits the ability of the group to produce federally funded AIDS prevention materials that are medically accurate and effective.
By the summer of 1982, just a year after the first cases of a disease that became known as AIDS were identified, Pneumocystis carinii pneumonia was reported in three hemophilia patients (Centers for Disease Control 1982a). This confirmed suspicions that AIDS was probably transmissible through an infectious blood-borne agent. Transfusion-related cases reported in December 1982 (CDC 1982b) brought into question the safety of the national blood supply (Neslund, Matthews, and Curran 1987).
By March 1983, the CDC issued guidelines recommending that blood collection centers ask a series of questions of prospective donors and tell them to refrain from giving blood if they are in a high-risk group. Similar guidelines were published directly thereafter by the American Red Cross and other major blood collection agencies.
The etiologic agent for AIDS, now known as HIV, was not fully identified until July 1984 (CDC 1984). By early 1985, a test (ELISA) to detect antibody to HIV was commercially available, and the CDC recommended its use in screening the blood supply (CDC 1985). Federal regulations and many State statutes now require the screening of all blood and tissue products that are to be used in human beings (Gostin l989d).
Much of the current litigation concerning the transfusion of HIV-contaminated blood or blood products arose during the period of uncertainty between late 1982 and early 1985.
A. Standards of Negligence and Strict Liability for Blood Transfusions
Two broad claims have been made to establish liability for transfusion of HIV- contaminated blood. The first claim is under a standard of negligence that requires the plaintiff to prove that the blood bank or health care provider failed to protect the blood supply using a method that was below the general standard of care employed in the industry at the time. This could involve a failure to take the necessary steps to determine which donors were in high-risk groups and then to advise them not to give blood (self-deferral); or a failure to satisfactorily screen the blood for HIV.
The second claim is under a theory of strict liability. Strict liability, under many State statutes and common law, is often applied to the manufacturer of defective products. If this standard applies, the defendant will be liable even if the care and practices observed were as good as those prevailing in the industry at the time.
The key question in most blood transfusion cases, then, is whether a standard of negligence or strict liability will be used by the courts. The clear trend is to use a standard of negligence, not strict liability (e.g., Kirkendall v. Harbor Insurance Co., Coffee v. Cutter Biological, Jones v. Miles Laboratories, Poole v. Alpha Therapeutic Corp., Shelby v. St. Lukes Episcopal Hospital, and Kozup v. Georgetown University).
State statutes that shield blood collection agencies and health care providers from strict liability have been found constitutional in at least three States (McKee v. Cutter Laboratories, Hyland Therapeutics v. Superior Court, and Samson v. Greenville Hospital System). One court, however, construed its blood shield statute so narrowly that a blood collection center could be held strictly liable (Doe v. Miles Laboratories and Cutter Laboratories).
Once a negligence standard is adopted, no liability should ensue unless the defendant falls below the industry standard of care. Some juries, presumably on this basis, have awarded substantial damages for negligence (e.g., Carroll v. Blood Center of SE Wisconsin). Jury decisions, however, have no precedential value.
A related issue is whether a State law limiting damages for medical malpractice applies to damages awarded against blood suppliers. At least two States have so held (Sloan v. Central Indiana Regional Blood Center, and Dale v. Irwin Memorial Blood Bank).
B. Blood Donor Confidentiality: Discovery of the Blood Donor's Identity
Plaintiffs, in pursuing an HIV-related case, may seek to discover the identity of blood donor(s). There can be numerous reasons for seeking discovery. If the claim involves negligence of a blood collection agency or provider, the plaintiff may be interested in seeing whether the defendant took reasonable care in asking questions for the purposes of self-deferral. Or, the plaintiff in a car accident may be seeking additional damages for contracting HIV. In order to prove that he contracted HIV from a blood transfusion, the plaintiff may want to know if the donor was HIV-seropositive.
The claims for discovery by plaintiffs purport to be necessary for the administration of justice. However, on the other side, blood collection agencies are reluctant to disclose this information. They claim that the identity and details relating to the donor should be strictly confidential for two reasons: first, to protect the privacy of the donor and the integrity of the physician/patient relationship; and second, to encourage people to voluntarily give blood. There is a concern that persons would be less willing to give their blood if their identity might be revealed at some later time.
These policy issues are being balanced in the courts without any clear trend emerging. The plaintiff's interest in the administration of justice is articulated by the Texas Supreme Court in Tarrant County Hospital District v. Hughes. The reasons are that the donor's identity did not fall within the statutorily protected physician/patient privilege, since the blood was not taken by a physician; that the donor's right to privacy was not compelling; and that the volunteer blood supply was not unreasonably harmed.
The blood bank's position favoring confidentiality of donors is articulated by the Florida Supreme Court in Rasmussen v. South Florida Blood Service. The court opined that the personal interest in privacy and the societal issues in promoting a volunteer blood supply system were more important than the plaintiff's need for the information (Stenger v Lehigh Valley Hospital and Doe v. University of Cincinnati).
Those courts that have agreed to the discovery have sometimes found that the privacy rights of the donor can be satisfactorily protected by a properly fashioned protective order safeguarding the identity of the donor (e.g., Mason v. Regional Medical Center of Hopkins County and Belle Bonfils Memorial Blood Center v. District Court).
C. Directed Donations
Even where a blood supplier has exercised due care in screening its blood products and donors, there remains a small chance of receiving HIV-contaminated blood. Unable to recover under a product liability claim, it is possible that the infected patient will turn to other claims for relief. One such claim is based on the failure to warn the patient about the risk of HIV associated with transfusion (e.g., Huskey v. Cutter Group Products and Ray v. Cutter Laboratories). A second claim is that the person should have been informed of alternatives to general transfusion such as directed or autologous donations.
These two complaints have also been raised against hospitals or physicians for failure to disclose risks or alternatives as a prelude to obtaining consent for a blood transfusion. Such a case is pending in Doe v. Johnston and Doe v. Werner. In the unreported case of Osborn v. Irvin Memorial Blood Bank No. 981642, (Cal. Super. Ct. S.F., December 1, 1988), the jury awarded substantial damages in part because the provider discouraged a designated donation.
In Kozup v. Georgetown University the parents of a child who received an HIV- contaminated transfusion raised both such claims against the blood supplier and the hospital. The court rejected them both, holding that the risk of HIV infection was not a material fact, given the state of knowledge at the time, 1983, when it was believed that the risk of HIV from transfusion was l in 3.5 million. Changes in public perception of both the probability and the gravity of the risk from transfusion may affect the outcome of future cases.
D. Duty To Inform Recipients of Contaminated Blood
Most blood banks and hospitals have a "look back" program, which is designed to inform recipients that they have been transfused with tainted blood. The plaintiff in Kobey v. Alvarado Hospital claimed that he was not informed soon enough, thereby causing a delay in medical treatment. The case has yet to be resolved. However, as early treatment interventions are developed, this kind of case is likely to occur more frequently.
A. Mandatory Reporting
As of July 1989, only 28(56 percent) States required reporting of HIV-positive test results to the public health department (CDC 1989; Gostin, 1989d). One reason for this is that most States do not classify HIV as a sexually transmitted disease (STD). Such a classification in most States would trigger the reporting requirements under the State public health statute.
In the two large seroprevalence States, court cases were filed by physicians' associations to compel the public health departments to designate HIV as an STD, and thereby put into effect the States' reporting and testing regulations for STD's.
In the California case, the plaintiffs withdrew their suit. In New York, the court held that the classification of diseases is within the sole discretion of the public health commissioner unless he or she acts in an arbitrary or capricious manner. In this case, the evidence supported the commissioner's decision not to so designate the disease (NY State Society of Surgeons v. Axelrod).
B. Testing/Screening
1. Informed consent
The issue of whether health care providers, employers, insurers, or others can test a person without his or her knowledge or consent is highly controversial (Gostin l989b). Health care providers have traditionally gotten consent for the drawing of blood, but not necessarily for each and every test performed on the blood. The question for the courts to resolve is whether the law requires specific informed consent for HIV tests. The two areas of law that are relevant are the common law doctrine of informed consent and more recent HIV-specific consent statutes.
Many of the more interesting cases are filed but are yet to be decided. These cases usually concern not only testing and informed consent, but also unauthorized disclosure of confidential information. See, e.g., Doe v. Maccabees Mutual Life (HIV test performed by insurance company despite express refusal by applicant); Doe v. Dyer-Goode (physician tested for HIV for the purpose of marital application even though only a syphilis test was required by law); Doe v. Conly (unauthorized HIV test result while being treated for diabetes); Doe v. Wills Eye Hospital (HIV test on patient without consent or counseling); Doe v. Trident Cruise Services (employee tested during employment physical without consent). Two cases, Conly and Wills Eye Hospital, include a count of negligent medical malpractice for failure to provide counseling in addition to the positive test results.
The Massachusetts Supreme Judicial Court in Guardianship of Anthony held that a mentally retarded adult could not be tested against his will. The court decided that a probate court did not have any power to order Anthony or his sexual partner to be tested.
2. Constitutional search and seizure
The fourth amendment to the Constitution prohibits the State from carrying out unreasonable searches and seizures. The courts, including the U.S. Supreme Court, have been quite clear that a blood test is a search within the meaning of the fourth amendment; see, e.g., National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384, 489 U.S. 656 (1989). The major question is whether the searches are "reasonable."
Two Federal courts have held that State or municipal testing programs potentially violate the fourth amendment. The case of Glover v. Eastern Nebraska Community Office of Retardation is discussed in the section on health care discrimination. In Glover the eighth circuit court of appeals held that a testing requirement for health care workers at a mental retardation facility violated the workers' fourth amendment rights because of the minimal risk of transmission. The court in Anonymous Fireman v. City of Willoughby similarly found a fourth amendment violation when the city ordered all its fire fighters to be tested for HIV.
The critical issue under the fourth amendment for future cases will be whether the State can demonstrate a significant risk of transmission and that testing is a reasonable public health measure to reduce that risk.
The courts have upheld Federal screening programs both on constitutional and statutory grounds. In Local 1812, Amer. Fed. of Gov't Employees v. US., employees challenged the State Department's mandatory program of screening of employees seeking service abroad. The court decided that the epidemiologic fact of lack of transmission from casual contact was not the predominant issue. It said the purpose of the State Department program was not to avoid contagion. Rather, the purpose was to ensure that foreign service employees were not exposed to opportunistic infections while posted abroad. The State Department was also concerned with maintaining a positive image of America abroad. That image could have been tarnished if it became known that some of its employees were HIV positive.
In Batten v. Lehman, a Federal district court refused to grant a temporary injunction to prevent the Navy from continuing its program of screening and excluding HIV-positive short-term active duty personnel from the service.
There are a wide variety of issues raised when defendants in a criminal trial are infected with HIV.
A. Crime of Risking Transmission of HIV
A major judicial issue is whether the risk of transmitting HIV is a criminal offense in itself or whether it is relevant to the charge. We expected to find three kinds of cases: (1) those based upon the traditional criminal law, (2) those based upon older public health (STD) offenses, and (3) those based upon newer AIDS-specific statutes. Our survey did not reveal many public health or AIDS-specific offenses. A key issue in public health offenses is whether HIV should be classified as a sexually transmitted disease. In most States it is not classified as an STD. In State of Connecticut v. Volpe, for example, the prosecution asked the court to order an HIV test pursuant to its venereal disease statute. The court held that the defendant could not be tested because HIV is not a venereal disease under the Connecticut statute.
The survey did not reveal any cases under AIDS-specific statutes. Perhaps the reason for this is that many of the AIDS-specific offenses are very recently enacted. Future trends may involve increased use of these statutes.
The survey did uncover prosecutions under the traditional criminal law. We estimate that there have been over 100 criminal prosecutions alleging risk of transmission of HIV. However, the traditional criminal law cases illustrate the difficulty of proving an intent to kill someone through viral transmission. In cases such as State of Florida v. Sherouse, People v. Markowitz, and State of Indiana v. Haines, prosecutors could not sustain a charge where they were required to prove the accused intended to kill or cause serious harm through viral transmission.
In the future it may well be easier to sustain a charge based upon reckless endangerment as in State v. Beason, even though that case was unsuccessful because of the reluctance of a witness to testify.
US. v. Moore raises a fascinating issue as to whether the mouth and teeth of an HIV-infected person can be regarded as a "dangerous" or "deadly" weapon. The court found that it could be such a weapon. Much evidence was presented (some inaccurate) about transmission of HIV through a bite. It is difficult to tell from the court's decision whether the case would have been decided the same way if the defendant were not seropositive.
The cases we uncovered are only a small fraction of the total number that have reached at least the indictment stage. The great majority of these cases were reported in newspapers and other informal sources so are not included here. An analysis of these cases is provided in Gostin, 1989c.
B. Prejudice to the Fairness of the Trial
A second issue raised when a defendant is infected with HIV is whether knowledge of his or her serologic status can prejudice the fairness of the trial. A number of cases are reported in this survey that allege that knowledge of, or publicity relating to, a defendant's serologic status (or even his or her association with a seropositive person) made it impossible to get a fair trial. These cases include allegations of prejudice by the grand jury (e.g., People v. Hawkrigg), the jury (e.g., Commonwealth of Pennsylvania v. Newman and State v. Mercer), or the judge in sentencing (People v. George). In each of these cases the court held that the defendant was not denied a fair trial because the error was harmless. Each case was decided on its facts. It is conceivable that in an egregious case the court would hold that the error harmed the defendant and that he or she was denied a fair trial.
C. Compulsory Testing of Criminal Defendants
The third issue raised involves the HIV testing of defendants involved in violent crime, particularly if the crime was related to sex or drug use. Many State statutes have been recently enacted authorizing or requiring testing (Gostin, 1989a). Our survey revealed a few cases relating to those new statutes (e.g., Rice v. Palo Alto Municipal Court). It also uncovered cases where judges ordered testing under their own inherent powers or pursuant to statutes not specifically relating to HIV.
Barlow v. Superior Court has illustrated that, even in the absence of an HIV-specific statute, courts may be prepared to compel testing and to disclose a defendant's serologic status. People v. Thomas, reviewed in the case summaries section on prisons, also supports testing. In that case a convicted rapist was required to be tested, and the results disclosed to the victim and to prison officials. The court observed that the U.S. Senate had recently approved in a vote of 97-0 a provision that would require anyone convicted of a serious crime related to sex or intravenous (IV) drug use to be tested. The court noted that the "equities of this entire situation" require testing (see also, e.g., Johnson v. Municipal Court, San Francisco).
D. Sentencing of HIV-Positive Offenders
The fourth issue surveyed involves the question of whether HIV can be used as an aggravating or mitigating factor in sentencing-i.e., can the court sentence a person more or less harshly solely because he or she is infected with HIV or has AIDS? In State of Oregon v. Guayante and Cooper v. Florida the court found that it was proper to sentence a person to a term that exceeded the recommended sentence. In Cooper the court said the defendant committed the offense with disregard to the risk of transmitting HIV. In Guayante the court referred to the "callous" exposure of the victim to HIV which "approaches attempted murder."
A defendant's serious illnesses caused by HIV can also form compassionate grounds for dropping a charge, or for reducing or completely forgoing the sentence. In People v. Camargo, the Court dismissed an indictment of a person with AIDS in the interest of justice. The court provided criteria for such a decision and noted that the defendant probably would be dead before he could ever be incarcerated.
Most courts in this survey, however, were not influenced by the fact that a defendant is seropositive or has AIDS. For an appellate court to reduce the sentence of a trial court it must find extraordinary circumstances (e.g., People v. Marlon Brandow). Such circumstances are rarely met if the defendant is merely seropositive (e.g., People v. Chrzanowski). Even if the defendant has full-blown AIDS, courts have often been unsympathetic (e.g., State of New Jersey v. Wright, or State v. Waymire). The Wright case shows just how unsympathetic some courts are to a defendant with AIDS. There were only 3 months left to run before he could be released on parole without court intervention. The inmate had kicked his drug habit, was active in an anti-drug campaign, and the stress of prison was exacerbating his condition. The court refused to allow early release, arguing that he would have to show a "severe depreciation" in his health caused by the lack of medical services in prison. The court noted that the defendant brought about his illness himself, implying blame.
E. Dismissing the Indictment in the Interests of Justice
In cases where a person with AIDS has a poor prognosis, some courts have allowed the indictment to be dismissed in the "interests of justice" (e.g., People v. Quinn and People v. Hammond). In People v. Williams, the charges were dismissed even though the defendant was an IV drug user and potentially could be a menace to the public health. But he was critically ill and dying from AIDS. The court wrote: "even if a man has not lived with dignity, our society's own self-respect demands that he be permitted to die in dignity." However, the mere fact that a person has AIDS may not be enough to dismiss the indictment (e.g., People v. Moros).
Government action to impede the spread of HIV has included the closure or regulation of public places such as bathhouses and adult bookstores or video centers. The public health concern over bathhouses is unmistakable, and courts have shown little hesitation in upholding their closure or regulation. The most well-publicized case is City of New York v. St. Marks Baths, where the court reviewed the large number of documented cases of high-risk behavior, stating that the public health department was well within its authority to regulate the bathhouses.
Less clear is the impact of adult bookstores or video centers in contributing to the spread of HIV. When the State controls the sale of literature it may implicate not only the right of privacy but also the right to free expression guaranteed under the first amendment. Still, courts have upheld regulation of adult bookstores and video centers where the State action is purported to be to slow the spread of HIV (e.g., Doe v. City of Minneapolis).
One of the prime roles of government is to protect ill persons from being exploited by sellers making exaggerated or false promises about a cure or palliative for their medical conditions.
The courts in a number of cases have not permitted fraudulent representations, e.g., People v. Martin and Martin (hypnosis course for HIV-positive persons); Complaint by the E.P.A. against Georgia Steel and Chemical Co. (advertising pesticide as effective against HIV); Minnesota v. TBA (home testing kits); Missouri v. Nave Airway (resuscitation device promoted to prevent spread of HIV); and People v. Ancient Gold (cure for AIDS).
A. Negligence
Liability in tort can occur under several legal theories. Strict liability usually only applies to the manufacture of products, a subject discussed in the section on blood transfusion. Most other cases come under a theory of negligence, e.g., that the health care provider or other person failed to take reasonable care toward a person to whom a duty of care was owed.
There is an ever-increasing number of cases where plaintiffs claim that due to negligence HIV was, or might have been, transmitted. The factual circumstances of these cases are highly diverse. For example, in Prego v. City of New York, a physician sustained a needlestick injury when a hypodermic had been left among gauze and other refuse in the patient's bedding. In JMF v. Emerson and Hematology Oncology Consultants, a health worker cut her finger while disposing of a lancet. Other cases alleged negligent exposure to hazardous waste (e.g., Quinn v. Las Angeles County/US. C. Medical Center and N.J. E.P.A. v. Central Diagnostic Laboratories). In Watson v. San Francisco General Hospital, a nurse contracted cytomegalovirus (CMV) from an AIDS patient and passed it on to her husband and child. She claimed the hospital was negligent in failing to provide adequate training and in not requiring nurses to wear gloves or gowns.
Many of the legal issues in these cases are of a technical nature, such as whether the statute of limitations had run. For most courts, the time for the suit begins from the time of discovery of the exposure to HIV, not from the time of transmission (e.g., Prego v. City of New York and DiMarco v. Hudson Valley Blood Services).
B. The "Right To Know"
Negligence claims sometimes involve a "right to know." Several cases allege that persons potentially exposed to HIV had the right to be informed. This occurred in the case of Christian v. Sheft, where the jury found that Rock Hudson was guilty of "outrageous conduct" in failing to inform his sexual partner that he had AIDS. In other cases, a security guard (Johnson v. West Virginia University Hospital) and a nurse (Halverson v. Brand and Cohen) claimed they had the right to know if they were working with persons who were HIV positive. In Halverson (an undecided case) an operating room nurse sued the hospital because she was not informed that a surgical patient was infected with HIV.
In most cases the plaintiff who alleged negligence had not in fact contracted HIV. In such cases the claim was often for negligent infliction of emotional harm.
In Mosele v. Bures, however, the court would not even-allow a plaintiff to bring a negligence case claiming she was exposed to HIV, unless she was first tested.
C. Infliction of Emotional or Mental Distress
Given the grave prognosis and social stigmatization associated with HIV infection, it is hardly surprising that many complaints include a request for damages for the intentional or negligent infliction of emotional or mental distress. The clearest cases are those where the defendant's conduct has led directly to the plaintiff contracting HIV, as with a careless blood supplier (e.g., Allen v. Irwin Memorial Blood Bank). Claims have also been filed where an employer engaged in discriminatory conduct in violation of the plaintiffs privacy and dignity (e.g., Cain v. Hyatt and Hyatt Legal Services Chinchilla v. Social Serviced Agency, and Bean v. Kimberly Serviced Inc.). One pending case involves a person whose distress occurred when a hospital chaplain misinformed him that he was HIV Positive (Burton v. Yeager).
Surviving spouses have been awarded damages for the loss of consortium against negligent blood suppliers (e.g., Carroll v Blood Center of SE Wisconsin and C. W. v. Belle Bonfils Blood Center).
D. Contracts and Wills: AIDS Dementia
HIV disease can affect the neurological system, causing dementia and other cognitive difficulties. There may, therefore, be challenges to a person's competency to make decisions relating to treatment, contracts, and wills. In Estate of O'Shields, the testator's will was contested on the ground that he had AIDS dementia. The court found no credible evidence that the testator was mentally incapacitated. The court opined that a rift in the family was a more probable explanation for the litigation.
The American Bar Association has issued guidelines that recommend that no special precautions have to be taken in a courtroom to avoid contagion with HIV. Several courts have reiterated that special precautions usually are not necessary because HIV is not spread through casual contact (In re Peacock, Wiggins v. Maryland).
There is also great media interest in court proceedings involving persons with HIV. In Stenger v. The Morning Call, the court held that the right to a free press does not extend to having a right of access to pretrial discovery material.
Finally, a person's illnesses as a result of HIV disease may require an expedited trial. In Murphy v Community Hospital of the Monterey Peninsula the court ordered an expedited trial in a civil case where the defendant hospital was deliberately slowing the process in the expectation that the plaintiff would die before the trial.
Spouses in marital disputes may try to use the fact that their partner is HIV positive against them. For the most part courts have not allowed this unless the person's infection or disease was directly relevant to the issue to be determined--divorce, custody, or parental fitness.
In some cases the spouse may try to compel testing, for example, if his or her partner was unfaithful or bisexual. The court in Anne D. v. Raymond D. said that compulsory testing is improper to assess custodial fitness or marital fault. The court reasoned that even if a person were HIV positive, it would not mean that he or she were to blame or that he or she were unfit to parent (Accord, Doe v. Roe).
Some spouses, either through genuine fear for their child's health or through vindictiveness, even seek to terminate their former partner's parental rights. This would take away the right to visit the child. In Stewart v. Stewart, two doctors testified that if the husband cut his finger while extracting one of his child's baby teeth he could transmit HIV. The trial court terminated his parental rights on the grounds that "even if there was a l percent chance" of contracting HIV it was unacceptable. The appellate court overruled, saying that the risk was too small to remove such a fundamental human right as parenthood. (See also Wallace v. Wallace and Jane W v. John W. "untimely diaper change" does not support a ruling that a father with AIDS must have supervised visits).
The court in Roe v. Doe similarly held that the mere diagnosis of AIDS dementia should not prevent a husband from having joint physical custody of his son.
Not all courts, however, regard the father's sexual orientation or serologic status as irrelevant. In Crawford v. Crawford the court ordered restrictions on the father's visitation privileges to prohibit the presence of any homosexual during visits. The father was also ordered to inform his ex-wife of any results of an HIV test. However, the ex-wife's request that the father's male roommate also be forced to disclose his HIV status was rejected.
Some spouses, frightened of a bisexual spouse, even claim damages for "AIDS- phobia." In Doe v. Doe (NY) the wife was not permitted to be compensated for emotional distress without proof that she had actually contracted HIV.
The fear of AIDS was also illustrated in Albany Co. Dept. of Social Services and M, on Behalf of$ v. R. During paternity proceedings in these two separate cases, the putative fathers refused to undergo blood tests for fear that the needlestick would allow them to be exposed to HIV at work where they were corrections officers. The court rejected this claim.
Concerns about maintaining the confidentiality of HIV-related information have been a constant theme in the cases throughout this survey. Issues of confidentiality can be found in many sections of this report including those dealing with criminal law, prisons, protection of the blood supply, and discrimination (see particularly the sections on health care and employment discrimination).
Disease epidemics from the earliest times have captured the attention and imagination of the public, probably because persons infected were viewed as different and because of the chilling fear of contagion. The public interest in the contemporary HIV epidemic is enhanced by the fascination with sexuality, drug use, and blood, the three forms of transmission of the AIDS virus.
Persons with HIV have a powerful interest in maintaining the confidentiality of their serologic or disease status for the same reasons that the public wants to know. Disclosure of this deeply private information tells their family, friends, neighbors, and employers something about their life that is highly personal and intimate. It also may trigger irrational fears of HIV, resulting in their ostracism and exclusion from ordinary life.
There are powerful conflicts between the principles of confidentiality and the "right to know," which the courts have to balance carefully.
A. The Media
The media have suggested that the public has an interest in knowing who has an infectious condition. The public cannot claim that it is actually protected by the widespread dissemination of a person's HIV status. Yet the media do sometimes claim a right to medical data. The Federal freedom of information law provides no basis for a right of access to otherwise confidential medical data (FOI exemption 6). But the right of access to death certificates may be allowed. The media also claim the right to publish this information under the constitutional principle of freedom of expression. There have been innumerable media reports about AIDS, sometimes hurtfully identifying persons infected with the virus.
Court decisions regarding the media's right to receive and publish information identifying a person as having AIDS appear inconsistent. Several courts have protected personal privacy over freedom of expression, particularly where the information was disclosed within the confines of a physician/patient relationship. In Anderson v Strong Memorial Hospital, an AIDS clinic gave a reporter permission to photograph a patient on condition that the patient was not recognizable. When the photograph appeared, friends recognized the patient. The court held that the publication of a recognizable photograph without the patient's permission violated the physician/patient privilege. The court concluded that, in the case of HIV, the physician/patient privilege is critical to encouraging people to be tested; confidentiality is of the utmost importance.
Outside of the physician/patient relationship. courts have been much more prepared to yield to the media's interests in freedom of information and expression. In TriState Pub. Co. v. City of Port Jervis, a newspaper sought discovery under the freedom of information law of the death certificate of a person believed to have died of AIDS. The City Department of Health denied the newspaper's request because it had no "proper purpose" other than "idle curiosity." The court, however, granted access to the death certificate under the freedom of information statute, saying that a decedent had no recognizable interest in privacy. It also held that the "proper purpose" was the public's right to be informed of the reality of AIDS in its own community.
The court in Yeste v. Miami Herald Pub. Co. came to a quite different decision. The court refused to allow the Miami Herald to gain access to the medical records and death certificate of a urologist who was rumored to have died of AIDS. The court said the newspaper had no "direct and tangible" interest in it. The British courts have also ruled that "the public interest in the freedom of the press and informed debate on AIDS was outweighed by the public interest in maintaining the confidentiality of actual or perceived AIDS sufferers." (see x v. Y, The Lancet, Nov. 21, 1987, pp. 1221-1222 [a physician with AIDS]).
In Lindry v. South Bend Tribune, the parents sent an obituary to a local newspaper that did not contain the fact that the son died of AIDS. The newspaper printed an obituary that included that information. The court determined that the newspaper's freedom to print outweighed any privacy considerations.
B. Unauthorized Disclosure
The Anderson v. Strong Memorial Hospital case indicated that the courts will be much more likely to safeguard confidentiality of information imparted within the context of a physician/patient relationship. The cases described in this section confirm the importance of confidentiality in health care settings.
The court in Kautz v. Orizondo held that the physician must maintain the confidentiality of his patient's HIV status because a fiduciary duty existed between doctor and patient.
An interesting question, yet to be definitively decided, is the extent to which courts will remedy breaches of confidentiality by other health care professionals or other hospital employees. The expectation of privacy in such cases is, arguably, just as strong as in a physician/patient relationship. In Doe v. Westchester County Medical Center, a nurse disclosed a patient's HIV-positive test result to his employer (the plaintiff was a pharmacist). The court decided that the nurse's actions violated the doctor/patient privilege. (See Penn v. Doe, an on-decided case where a nurse told a patient's employer that he had AIDS and the patient was then fired.)
In Burton v. Yeager, a pastor made an unsolicited visit to a patient's hospital room (where he was held in isolation). The pastor announced to the patient's friend, who was in the room, that the patient had AIDS, and proceeded to question the patient about his personal life. The pastor then went to the nurses' station to announce that the patient had AIDS. In fact, he had hepatitis, not AIDS. Subsequently the patient experienced worsening of his ulcer related to distress and questioning by his circle of friends about AIDS.
Many of the cases in this survey involved employers who disclosed intimate health care information about their employees. Many of these employers were health care providers. See, e.g., Auon v. Baughman (physician was occupationally exposed to HIV, and hospital disclosed the information to others) and Doe v. Washington University (dental program breached confidentiality of student).
The courts also have to decide whether breaches of confidentiality outside of the health care context are actionable. In Doe v. Borough of Barrington, the police told the plaintiff's neighbor she should wash with disinfectant if she had touched him. This neighbor then erroneously disclosed to the school board that the children were also infected. The family suffered from the disclosure in that the children were shunned at school, the landlord refused to provide maintenance services, and other parents threatened to boycott the school.
This case powerfully illustrates the interconnectedness of breaches of confidentiality and subsequent discrimination. See also Morales v. Vasiliadis (lawyer disclosed to the court that the defendant was HIV positive after being sentenced); Doe v. City of Cleveland (police disclosed the fact that plaintiff had AIDS despite a letter stating "Please, I trust you will keep this information confidential"); Huse v. Sims (roommate ruined a physician's 12-year pediatric practice when he told people the physician tested positive for HIV); and Urbaniak v. Newton (disclosure of seropositivity by company's physician).
C. The "Right To Know"
Protection of confidentiality is both a legal and ethical duty. However, in the case of an infectious condition, the consequence of an absolute duty of confidence is that persons who are not informed of the risk may be endangered.
There is increasing demand for a "right to know" the HIV status of persons. State statutes provide some power or duty to warn many different groups who may be exposed to HIV. For some groups like sexual or needle sharing partners the risk is clear. For other groups, such as emergency workers, funeral workers, health care workers, and schools, the risk is not equally demonstrable. Groups where the right to know has been most strongly expressed include victims of violent attacks and prison guards (see the sections on criminal law and prisons).
In cases where the person can demonstrate a clear risk, the courts have usually been prepared to allow disclosure. In Tradup v. Mayer, the court allowed disclosure to a woman who was 9 weeks pregnant by her sexual partner. A more difficult factual case is pending in Doe v. Prime Health where an estranged wife is seeking the information. The plaintiff argues he has been separated from and has not had sexual intercourse with his wife for 2 years.
This section examines cases of discrimination against persons infected with HIV that are being litigated across the country in courts and administrative hearings and before human rights commissions. We have counted 139 cases of discrimination decided, settled, or pending in the Federal and State courts. We also reviewed numerous cases of discrimination before human rights commissions and administrative bodies. Our search for human rights commission cases was focused primarily in New York City, Los Angeles, and San Francisco. We believe, therefore, that the number of human rights commission cases we reviewed is only a small fraction of the total national number. Moreover, these cases, which have resulted in a formal complaint, provide only a sample of the kinds of discriminatory practices against persons infected with HIV.
We divide the discrimination cases into several areas, reflecting the diversity of circumstances where HIV-infected persons are treated unequally: education, employment, housing and property, health care, business and commercial establishments.
There is a strong consensus in the courts that if an HIV-infected person is able to participate fully in life activities and there is no significant risk of viral transmission, discrimination is unlawful.
The cases surveyed provide a snapshot of public attitudes and treatment of persons perceived to be, or actually, infected with HIV. It is difficult to understand the legal opinions of courts and administrative agencies without first reviewing the statutory framework.
Statutory protection against discrimination within the public and private sector did not emerge until quite recently. The extant statutory protection of persons with communicable disease is primarily based upon legislation for the handicapped. The Federal Rehabilitation Act of 1973, section 504, states that no "otherwise qualified individual with handicaps. shall. . . solely by reason of 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.
For many years there was no clear decision that the act actually applied to communicable disease. As recently as 1986, the U.S. Justice Department concluded that discrimination based upon the fear of contagion was not covered by the statute (Cooper 1986). Today, however, there is little doubt that the 1973 act applies to persons with communicable disease as well as to carriers or even persons perceived to be infected.
The Supreme Court decision in School Board of Nassau County v. Arline 107 S. Ct. 1123(1987) made clear that a person with a contagious disease (in this case, tuberculosis) was a handicapped person within the meaning of section 504. The Court said that a person was "otherwise qualified" for employment if he or she did not pose a significant risk of communicating the disease to others in the workplace or reasonable accommodation could eliminate the risk. The Court adopted American Medical Association (AMA) guidelines in determining whether a person is "otherwise qualified," including: the nature of the risk (how the infection is transmitted), the duration of the risk (how long the carrier is infectious), the severity of the risk (what the potential harm is to third parties), and the probability the infection will be transmitted and will cause harm.
A 1988 amendment to section 504, enacted as part of the "Grove City" Civil Rights Restoration Act, was intended to codify the Arline decision. Yet, it is framed not as an entitlement to nondiscriminatory treatment for persons with an infectious condition, but as a limitation. The 1988 amendment states that section 504 "does not include. .. an individual who has a currently contagious disease or infection [who would] constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job."
The Justice Department has advised that section 504 applies to discrimination against infected persons, whether or not they are symptomatic or whether it is based upon the fear of contagion (Kmiec 1988).
This survey includes the decisions of several Federal courts that have used section 504 to prohibit discrimination against infected persons by employers or schools (e.g., Chalk v US. District Court of California, Orange County Supt. of Schools, Doe v. Centinela Hospital, and Ray v. School District of DeSoto County).
The major limitation of section 504 is that it is applicable only to programs receiving Federal financial assistance and does not significantly extend into the private sector. The Fair Housing Amendments Act of 1988, passed by the 100th Congress, is the first Federal statute that extends discrimination protection for people with disabilities to the private sector, so that private property owners may no longer discriminate against infected persons. This statute is too recent for us to have identified cases that rely on it.
At the time of writing, the Americans with Disabilities Act was about to be enacted by Congress to provide protection in other areas of the private sector, such as employment, accommodations, restaurants, and stores.
All 50 States and the District of Columbia have handicap statutes similar to the Federal Rehabilitation Act. In all jurisdictions except five, handicap statutes prohibit discrimination against private as well as public employees (Gostin 1989d). Our survey summarizes numerous cases where State courts and human rights commissions have declared that handicap laws apply to AIDS or HIV infection (e.g., Shuttleworth v. Broward County and Cronan v. New England Telephone Co.). There are many more informal opinions, for example, by State attorneys general, making the same point.
To underscore the importance of protecting persons with HIV infection from discrimination, several States and municipalities have enacted AIDS-specific statutes or ordinances. State antidiscrimination statutes characteristically target specific areas, such as employment, housing, or insurance. Municipal ordinances, such as in San Francisco and Los Angeles, are more comprehensive in prohibiting discrimination in business establishments, public accommodations, educational institutions, and city facilities or services.
The cases that follow show that many, but not all, discriminatory practices can be litigated under existing law.
A. Education
From the earliest times of the HIV epidemic, exclusion of children infected with HIV from school was an issue debated with great emotion. For many parents it seemed inconceivable that children with HIV should be allowed to attend school.
Representatives for the handicapped, however, had already achieved the legislative goal of ensuring full-time education for all handicapped children. The Federal Rehabilitation Act and similar State statutes, as already suggested, proscribe discrimination against the handicapped, including schoolchildren infected with HIV. In addition to the Rehabilitation Act, representatives for the handicapped could rely upon the Federal Education of All Handicapped Children Act (EAHCA), 20 U.S.C. sections 1400 et seq. The EAHCA gives all school-aged children who are handicapped the right to a free public education in the least restrictive environment appropriate to the case.
The EAHCA applies to schoolchildren with HIV only if their physical condition is such that it adversely affects their educational performance-i.e., their ability to learn or do the required classroom work. As learning and behavioral problems are not necessarily the result of HIV disease, the EAHCA is usually not applicable in the absence of other handicaps. This has advantages for HIV-infected students, since they do not have to exhaust their remedies under the EAHCA, but can go directly to Federal court under the Rehabilitation Act (e.g., Robertson v. Granite City Community Unit School District No.
The U.S. Court of Appeals for the Eleventh Circuit in Martinez v. School Board of Hillsborough County was presented with a case in which both Federal statutes applied. The child was mentally handicapped and, therefore, subject to the EAHCA. She also had AIDS, providing her with protection under the Rehabilitation Act. The court found that there must first be a determination of the child's appropriate educational placement under EAHCA procedures. The next determination is whether she is otherwise qualified to participate in that placement under the Rehabilitation Act. If she is not otherwise qualified, it is necessary to decide whether the school can provide reasonable accommodations to allow her to participate in the least restrictive, most appropriate placement.
Most of the cases in this survey were decided solely under the Rehabilitation Act or comparable State handicap statutes. There are also State and local statutes that specifically prohibit discrimination against persons infected, or appearing to be infected, with HIV. These newer statutes are likely to provide the basis for the next generation of litigation.
The approach of the courts under the Rehabilitation Act and similar State handicap statutes has been to require school boards to fully integrate the HIV infected child into the ordinary classroom (e.g., Ray v. School District of DeSoto County, Doe v. Dolton Elementary School District No. 148. and Robertson v. Granite). This desire to integrate HIV-infected children was even applied in a case of a kindergartner who bit another child and who was labeled as "aggressive" by the school psychologist (Thomas v. Atascadero United School District).
These courts have found that AIDS and HIV are protected handicaps within the meaning of the Rehabilitation Act and comparable State statutes; and that infected children are otherwise qualified to attend ordinary schools. Many courts emphasize the epidemiologic evidence showing lack of viral transmission in settings where there are no likely sexual relationships or needle sharing.
Courts which have safeguarded the right of HIV infected children not to be discriminated against in their school placement have, nonetheless, required the school, parents, and child to comply with specified safeguards. These safeguards characteristically include stringent compliance with CDC guidelines that all sores and lesions be covered; frequent medical examinations; avoidance of contact sports; disclosure of the infected pupil's medical condition to faculty and staff; and AIDS education for the infected children, the parents and sometimes the faculty and other pupils (e.g., Ray v. DeSoto, Thomas v. Atascadero, and Doe v. Dolton).
In cases where there may be some behavioral or medical reason not to fully integrate the child, some courts lay down a fair procedure for deciding the case that includes parental and medical participation (N.Y. v Dow).
These courts required full integration without any visible barrier between the child and his or her classmates. To do otherwise, the courts reasoned, would cause irreparable emotional and psychological harm to the child (e.g., Robertson v. Granite). However, the court in Martinez v. Hillsborough, while ruling in favor of the infected child, laid down a "safeguard" that much more clearly singled the child out as potentially contagious. That court required the child to sit in a cubicle in the classroom where she could observe and hear the discussion. The cubicle, to be sure, allows the child to be in the classroom and avoids the remote risk of transmission. However, it provides a visible symbol of separation of the child from the rest of the class.
The most difficult cases involve decisions to exclude students from educational settings where they may be inherently more likely to cut themselves and expose others to HIV. These cases include a dental student who was excluded because the school program involved invasive procedures such as tooth extractions (Doe v. Washington University Dental School), and a student enrolled in a program of training to become a medical assistant (Doe v. National Education Center and Strayer). The Washington University case is pending and the Strayer case is settled, so there is no clear indication on which way the courts will go.
There have also been a number of cases upholding the right of teachers infected with HIV to continue to work (e.g., Chalk v. US. District Court of California, which is reviewed in the section dealing with employment).
B. Employment
Persons infected with HIV can be free of symptoms for many years. Asymptomatic employees infected with HIV are just as capable of working as other employees. If they have a record of good performance on the job, there is no medical reason to believe they will suddenly become ineffective or unreliable workers. When an employee develops HIV-related symptoms or even full-blown AIDS, it does not necessarily mean that he or she is incapable of working. The nature of HIV disease is that it is cyclical, involving bouts of illness and physical incapacity. At other times the person may be capable of normal work. If the employer provides reasonable accommodations that allow, for example, for periods of absence, persons with AIDS often will want to, and are capable of, work.
The kinds of employment complaints reviewed in the survey are quite wide. Many of the cases are still undecided so that the facts are not proved. Still, the wide range of complaints provides some insight into the kinds of employment disputes that have occurred since the start of the HIV epidemic. Examples of adverse employment actions complained of are as follows:
In Buler v. Southland Corp., Seven-Eleven Stores the employer allegedly made insensitive remarks to one employee who only recently tested positive for HIV such as "you are dying of AIDS" and "you should get a gun and shoot yourself . . . I know where you can get a gun." In that case the employer threatened that if the employee did not quit he would prevent him from getting unemployment compensation; and he disclosed the employee's medical condition to his family, friends, and fellow employees. The employee became depressed and suicidal and thereafter spent periods in psychiatric hospitals and homeless shelters.
In Cronan v. New England Telephone Co., the employer required Cronan to disclose his medical condition or lose his job. The medical condition was ARC. Despite a promise of confidentiality, the medical information was widely disclosed within the company. Fellow employees threatened to lynch him if he returned to work. This occurred despite Cronan's excellent 12-year history with the company. The company at that time had no AIDS education activities.
The survey indicated that HIV-infected employees were terminated in a broad spectrum of activities, from teachers (Chalk) to telephone company workers (Cronan), to county employees (Shuttleworth), to quality control analysts (Raytheon), to choreographers (Shawn v. Legs Company Partnership). Subtle abilities to do complicated or safety-oriented tasks were not usually an issue. Nonetheless, we identified three areas that accounted for the majority of disputes: health care workers (e.g., Doe v. Attorney General of the US. and Galiher v. County of Los Angeles); those providing human services to children, including teachers and foster parents (e.g., Houseknecht v. White and In re Eckholdt); and people working in food service industries (e.g., Wolfe v. Tidewater Pizza, Farris v. Mariott Corp., and Isbell v. Poor Richards). See table 3, in the "Organization of Cases" section, which gives the categorical breakdown of cases.
Some employees alleged that they were dismissed on the basis of rumor or innuendo (that the employee was in a high-risk group or positive for HIV) (Wolfe v. Tidewater Pizza Inc. and Little v. Bryce and Randall's Food Market, Inc.) or the perception that he or she might be infected with HIV because of absences due to pneumonia or appearance of loss of weight (Doe v. Independent Office Machines).
In one case the image of the employer was important. In Shannon v. Charter Real Hospital, the hospital fired a head nurse after she appeared on a television program advocating human rights for persons with AIDS.
Employees were also dismissed despite the fact that they had been honored for outstanding work (Sweetland v. Telecheck) or had "exemplary" work performance records (Doe v. N Y National Guard, Cain v. Hyatt Legal Services, and Houseknecht v. White).
Sometimes the reason for firing an employee was to protect the employer's business interests. In Mosby v. Joe's Westlake Restaurant, "one of the best waiters" in the restaurant was fired because the proprietor was afraid his establishment would be picketed. In Garner v. Rainbow Lodge, an employee with AIDS was fired. His employer claimed the termination was not based upon discrimination but that it was because his insurance premiums would go way up or that the company might even lose the health insurance it possessed.
The courts, for the most part, have not been prepared to accept discrimination against HIV-infected employees. The leading case since Arline is the decision by the ninth circuit court of appeals in Chalk v. US. District Court of California. That court held that AIDS was a handicap within the meaning of the Federal Rehabilitation Act. More importantly, an AIDS diagnosis does not, without more, preclude a person from being otherwise qualified to perform the job. If an employee with AIDS is capable of doing the job with reasonable accommodations, then discrimination is prohibited. The employment review, moreover, must be based upon reasonable medical judgments. Because HIV is not communicated through casual contact, the threat of viral transmission, unless there is a predictable exposure to blood, will not be a sufficient justification for discrimination. Most lower courts, before and after Chalk, have followed similar reasoning (e.g., Shuttle worth v. Broward County, Sweetland v. Telecheck, Buler v. Southland Corp. Seven Eleven Stores, Doe v. N Y National Guard, and Isbell v. Poor Richard's).
The courts, moreover, required current state-of-the-art medicine. They rejected, for example , the testimony of a prominent hospital physician who argued in favor of excluding an employee from the workplace because of speculation about the future: "We will eventually discover AIDS is transmitted by casual contact" (Raytheon Company v. Fair Employment and Housing Commission). In that case the court also rejected the argument that exclusion of the employee was necessary to ensure a safer workplace.
Antidiscrimination principles, moreover, have been extended to cover not only the employer, but also his or her agent (Chapoton v. Majestic Caterers and Karageorge).
The most difficult cases for the courts involve the question of whether HIV-infected health care professionals are "otherwise qualified" to continue working when they may expose patients to their blood or body fluid. Some employers have sought to test employees for HIV (see the section on testing), exclude infected employees from the workplace, or change their job assignments (see the section on health care discrimination). The courts often prohibit health care facilities from discriminating against HIV-infected health care workers (e.g., Doe v. Attorney General of the US. and Doe, M.D. v. County of Cook). Other courts, however, have allowed compulsory testing and dismissal particularly if the health care worker appeared more likely to present a danger to patients (e.g., Leckelt v. Board of Commissioners of Hospital District 1).
A major trend can be identified from the numerous cases on employment. The early cases, still winding their way through the courts, often involve discriminatory practices by employers based upon prejudice or fears of transmission in the workplace. As CDC and the Occupational Safety and Health Administration (OSHA) guidelines continue to make clear that these fears are groundless, employers appear much less likely to exclude employees from ordinary workplaces. The new wave of cases involve workplace settings where there is likely to be some exposure to blood such as health care settings, laboratories, and forensic examiners.
C. Housing and Property
There were a wide range of complaints alleging discrimination in housing and property. The factual patterns of the complaints are usually related to the denial of the right of an HIV-infected person to rent or buy property. The complaints alleged, inter alia:
Most of the cases in the housing area were based upon State handicap law or in some cases ordinary contract law. The court in Weingarten v. Gruenberg reasoned that State handicap laws should follow the interpretation of the Federal Rehabilitation Act. The contagious nature of a disease does not remove the disease from protection. It merely requires a review of the infected person's condition to determine if he or she is "otherwise qualified" for the particular activity. The court in Seitzman v. Hudson River Associates added that there was an "enormous public interest involved" in ensuring nondiscrimination.
Several cases alleged housing discrimination against gay men perceived to be, but not actually, infected with HIV (e.g., Weingarten). The court in Poff v. Caro held that the laws protecting the handicapped were enacted to prevent discrimination. To distinguish between those who are handicapped and those who are merely perceived to be at risk of becoming handicapped would undermine the purpose of the law.
Where courts in this survey applied handicap law to housing discrimination, plaintiffs usually were afforded relief. The availability of effective remedies was less clear in cases where the court applied contract law. In Whitman Walker Clinic v. Coakley, for example, the court refused to require a landlord to lease to plaintiffs who were going to run an AIDS clinic. The court examined the issue more under contract law than under antidiscrimination law. It reasoned that the landlord had been "misled" about what the building would be used for, thus voiding the contract.
D. Public Accommodations and Commercial Establishments
Many of the complaints alleging discrimination in public accommodations or commercial establishments revolved around proprietors refusing to serve persons infected with HIV. The complaints surveyed include refusing to serve HIV-positive customers in such diverse settings as a nail salon (e.g., Tema S. Luft v. The Nail Gallery, and People v. Vartoughian), a funeral home (e.g., In re Dimicelli), and a spiritual retreat (e.g., Gittleson v. Jacumba Foundation).
Many of the cases in this section are not decided, but should come within the existing legislative framework of handicap law (see, e.g., the cases of Seitzman, Action AIDS, and Sibay in the section on housing). A new issue raised in re Dimicelli is whether a handicapped person's death removes him or her from the protection of handicap laws. The court held that egregious conduct against a person who died of AIDS, which has no rational basis, is discrimination and can be prosecuted under State handicap law.
E. Health Care
There is a discernible trend in the pattern of health care discrimination cases surveyed. Early in the epidemic most complaints of discrimination involved exclusion from the schools or workplaces. At that time there was greater uncertainty about the modes of transmission of HIV, giving rise to fears that integration in schools and at work might pose a public health danger. Those fears subsided as the epidemiologic evidence became clearer. However, an increasing number of cases of transmission through parenteral and mucous membrane exposure to blood in health care settings has created a new set of fears among health care professionals. The epidemic is also shifting from predominantly gay men to IV drug users who because of their socioeconomic class are traditionally underserved in the health care system. Health care providers outside of specialized drug treatment facilities also are not used to treating this population.
These new circumstances of the epidemic have led to a different pattern of discrimination complaints involving unequal access to health care and nursing homes and inadequate treatment; refusal to provide premises to persons providing health and dental services to persons infected with HIV; and testing and limitations placed on the right of infected health care professionals to practice.
1. Failure to adequately treat or care for HIV-infected patients
Persons with HIV suffer from a multisystem disease process. Failure to provide adequate treatment or care affects not merely their dignity and self-worth, but, more important, their health and well-being. Most health care professionals, despite their fears, have continued to provide necessary care and treatment. There has been no evidence until now of the extent to which treatment has been withheld. This survey recounts numerous complaints of inadequate and unequal treatment across a wide variety of health care professionals and specialties. Patients complained that they were denied adequate emergency treatment (e.g., Doe v. Howard University and Johnson v. District of Columbia); dentistry (e.g., Hurwitz v. N Y C. Commission on Human Rights, B. v. A Dentist, and Beardon v. Sutter Place Dental Group); substance abuse treatment (Doe v, Centinela Hospital); laboratory tests (Stepp v. Review Board of the Indiana Employment Security Division); treatments for serious allergies (Doe v. Lankenau Hospital); treatment for back problems (Walsh v. Cicmanec); and counseling (Brogan v. Kimberly Services).
Some complaints alleged that serious harm may have been caused by discriminatory practices. In Doe v. Howard University Hospital, a hospital emergency ward was alleged to have left a despondent and suicidal woman unattended in a single room. The hospital did not place her on the psychiatric ward because of its policy of not placing HIV-positive pa- tients in a double room, the only kind available in the psychiatric ward. While left unattended, the woman locked herself in the bathroom and took an overdose of pills. She alleged she was treated with unnecessary force and placed in bed restraints for 4 days, during which the hospital staff would not change her soiled bed or attend to her hygiene. In Doe v. Shasta General Hospital (see the section on informed consent under testing and screening), Doe complained that his physician convinced him that he would die if he had an operation at a local hospital and should seek treatment in San Francisco. However, the physician and hospital administrator refused to make a referral to anyone in San Francisco and did not return the patient's calls. The patient hired a lawyer, and within a week a surgeon at the local hospital scheduled and performed a routine hernia repair.
In Johnson v. District of Columbia, a patient with abdominal cramps complained that he had advised the ambulance attendant that he was infected with HIV. The attendant demanded to know "why the hell" the patient had not told him earlier and shouted to his partner upon arrival at the hospital, "He's one of them-one of those AIDS people." The emergency workers dropped the gurney and did nothing to stop the patient from hitting his head.
In Vermont v. Lunt the patient complained that two rescue workers failed to respond promptly to his call for assistance. According to the emergency room physician who treated the man, the delay resulted in aggravated brain injury.
In some cases patients were not harmed but complained they had been treated with disrespect and lack of empathy and care. In Doe v. St. Francis Hospital, an AIDS patient said she was placed in isolation every time she came to the hospital; her room would not be cleaned and food trays would be left in the hall. Family members were forced to bring her pain medication. Hospital physicians refused to adjust her chest drain and she had to do it herself.
In Frazier v. Marcus Garvey Nursing Home, a nursing home patient claimed she was tested without her knowledge or consent. She was not told the results but was placed in isolation, and staff wore masks, gowns, and gloves. She was excluded from all patient activities, and could not use the phone; and a caseworker was fired after trying to help her.
Sometimes the refusal to provide care had little to do with fear of occupational transmission, such as the lab technician who refused to test a patient's blood because "AIDS is God's plague on man and performing the tests would go against God's will" (Stepp v Review Board of Indiana Employment Security Division).
Most decided cases in this area have found that health care professionals have a duty to care for HIV infected patients adequately. There have been some novel legal issues addressed. Doe v. Centinela Hospital is one of the first cases to expressly hold that an asymptomatic HIV-positive person is handicapped as defined by the Rehabilitation Act. The court found that the person need not be casually contagious to be perceived as handicapped solely on the basis of fear or contagion.
In Hurwitz v N. Y C. Commission on Human Rights, the court answered the question of whether a dentist's private office was covered by a New York handicap statute that provides jurisdiction over places of public accommodation. The court held that places of public accommodation should include clinics, hospitals, dispensaries, and private medical or dental offices (but see Elstein v. State Division of Human Rights).
The Hurwitz court also answered the question of whether the courts or human rights commissions could review treatment decisions traditionally regarded as within the domain of medical discretion. The court said that there ought to be "due deference" to medical judgments. But the court or commission must balance the need to safeguard human rights and equal access to treatment with recognized medical expertise.
While courts have thus far not been prepared to tolerate treatment refusal based upon health status alone, they have required hospitals to provide education and equipment necessary for health care professionals to practice universal infection control precautions (e.g., Stepp v. Review Board of the Indiana Employment Security).
There are, however, potential problems in future cases. Handicap statutes do not protect against discrimination if the health care professional demonstrates there is some risk of contagion. It is conceivable that the courts may be more likely to uphold discriminatory practices in the future where the risk exists but is not significant. An interesting example is presented in Hartford Hospital Nurses v. Hartford Hospital. In that case, nurses working on a hemodialysis unit refused to treat AIDS patients until they were provided with "special training, policies, procedures, precautions, and equipment." Dialysis units characteristically involve staff in significant blood exposure. In Roe v. Cumberland County Hospital System, an HIV-positive peritoneal dialysis patient with end-stage renal disease required emergency treatment. He had been receiving treatment in New York City, but he claimed he was denied emergency admission to a North Carolina hospital or local kidney dialysis center. He had to travel by bus to Durham, where he was treated at Duke University Medical Center.
Another potential problem may occur under State and local statutes that have a narrow or specific coverage such as discrimination in "public accommodation," as occurred in Hurwitz. The Hurwitz case is being appealed. More important, some courts have held that private medical offices are not public accommodations and not covered under State handicap laws. In Elstein v. State Division of Human Rights, the court excluded private medical offices from the reach of antidiscrimination law, despite a surgeon's refusal to treat HIV-infected persons. The court found it was not discriminatory for the doctor to limit his practice to non-HIV-infected patients because of the "unique character" of the physician/patient relationship. It is distinctly possible that other jurisdictions will adopt this approach in the absence of clear statutory language.
In Walsh v. Cicmanec, for example, the court will have to decide whether a refusal by a chiropractor to treat comes within the narrow San Diego ordinance that prohibits discrimination by landlords, employers, and businesses.
The HIV epidemic has also opened a perennial legal question about whether there is a legal right to health care. Traditionally, the law will not provide a right to medical services unless they are necessary in emergency cases. To be sure, the health care provider may not discriminate on the basis of a person's serologic status. But what if the refusal to treat does not involve discrimination, but is based upon a valid clinical, research, or financial consideration?
In Devito v. HEM Inc., an action was brought against a group of researchers and their sponsors who were conducting an FDA approved trial of a new drug (ampligen). The defendants stopped providing the drug because it proved not to be efficacious. The patient, however, believed the drug had stabilized his condition and he sued for the right to continue taking it. The court concluded that the law does not provide a participant in a clinical drug investigation with the power to force the sponsor to provide him with the drug.
Bleyenberg v. Gustafson and Miller also raises the issue of access to a research protocol. The patient was refused admission to a clinical trial when he arrived 45 minutes late. The plaintiff sued (pending) to require the continuation of his medication.
In Weaver v. Reagen, medicaid recipients filed suit to force their State to place azidothymidine (AZT) on the Missouri Drug List or to otherwise provide coverage for the drug. A Federal district court held that the propriety of medicaid coverage is determined by the recipient's clinical determination that the drug is medically necessary. That decision has been affirmed by the eighth circuit court of appeals.
In Dallas Gay Alliance v. Parkland Memorial Hospital, the hospital clinic maintained a waiting list of patients seeking AZT and pentamidine. Two people died while on the waiting list. The court granted an injunction to require the hospital to discontinue the waiting list. The court reasoned that the practice was contrary to the public policy of providing medical services for all persons regardless of financial status.
2. Refusal to provide premises to health care professionals providing services for persons with AIDS
Health care professionals who do want to provide services for people with AIDS have sometimes suffered discrimination themselves. In Barton v. NYC. Commission on Human Rights a dentist listed his name with the Gay Mens' Health Center to provide services for AIDS patients. This eventually resulted in the dentist's eviction from his premises. The court held that professionals offering services could properly complain of unlawful discrimination even though the professionals themselves were not handicapped. The court recognized that objects of discrimination are often least able to avail themselves of remedies afforded and that discriminatory practices injure society as a whole. A professional who wants to make services available to a needy class and who is discriminated against for those efforts deserves legal protection. Similar reasoning was used by the courts in Action AIDS v. Dirot Delaware, where real estate agents withdrew from property negotiations with a social services group after they learned that the group's clients had AIDS. The agents withdrew even before requesting the group's financial records, suggesting that prejudice, not financial concerns, were uppermost in the mind of the sellers. See also Seitzman v. Hudson River Associates, where physicians were prevented from moving into an apartment after contracts were signed and landlords discovered they were treating AIDS patients. The problem with some handicap statutes is that courts will not find them applicable to the buying or renting of commercial establishments. Thus, in Whitman Walker Clinic v. Coakley, the court did not enforce a contract where the landlords refused to provide keys to physicians after they discovered the premises would be used for an AIDS clinic.
3. HIV-infected health care professionals: testing and Limitations on the right to practice
Hospitals and other health care facilities, in purporting to safeguard patients from contracting HIV, have sought to identify infected health care professionals and sometimes limit their right to practice. Handicap statutes were not designed to address this problem and, predictably, courts have not been consistent in their findings.
Some courts have used traditional employment discrimination principles to prohibit testing and termination of health care workers. The best illustration of this approach is by the ninth circuit court of appeal in Glover v Eastern Nebraska Community Office of Retardation. The court based its finding upon constitutional principles rather than the Rehabilitation Act. The court held that a policy of screening health care workers for HIV was an unreasonable search and seizure prohibited under the fourth amendment. The basis for the policy was a mental retardation hospital's concern about clients who bit or scratched. The court of appeal upheld the lower court's view that the risk to patients was low, "approaching zero."
The court in Doe v. Attorney General of the US. took a similar approach. The court held that the Federal Bureau of Investigation was wrong to terminate a hospital contract because one of the physicians was HIV positive. See also Department of Health and Human Services on Behalf of Doe v. Charlotte Memorial Hospital, where the hospital would not allow an HIV infected nurse to work until she could prove there was "no risk" to patients, visitors, or other personnel.
F. Insurance
There is an inherent tension in the issuance of health or life insurance policies to persons infected with HIV. Insurers, seeking to limit their risk, often seek to determine the insured's serologic status. This can occur through trying to obtain the results of an HIV test or to determine if there are any physical conditions potentially related to HIV, such as swollen lymph glands, low T-cell counts, chronic fatigue and wasting, or rare pneumonias or cancer. HIV-infected persons, on the other hand, have a particular need for health insurance and many want to provide for their partners or spouses and children through life insurance.
Insurance companies and HIV-positive insurance applicants, therefore, have very different interests. This survey reveals a continuing effort of insurance companies to ask detailed questions about HIV-related health status, while applicants seek to avoid answering those questions directly. Examples include failure to directly answer questions regarding treatment for anemia and other blood disorders or disorders of the lymph gland (Zachary Trading Inc. v. Northwestern Mutual Life Insurance Co.), treatment for chronic diarrhea, tumor, cyst, or syphilis (Kentucky Central Life Insurance Co. v. Webster), or treatment for hepatitis or a positive test result for HIV antibody (Lilley v. Protective Life Insurance Company).
In adjudicating these kinds of cases, the courts usually apply contract law rather than antidiscrimination law. Thus, the central questions are as follows: Did the applicant misrepresent a material fact concerning his or her health history such that its full or correct disclosure would have caused the insurer to reject the original application for cause? Was the applicant's misrepresentation made with actual intent to deceive? (See, e.g., Zachary, Kentucky Central Life Insurance, and Lilley.)
The courts have been prepared to set aside an insurance contract if it found material misrepresentations (e.g., Zachary). However, if the insurer would have granted the application even if the condition were revealed, the court will uphold the contract. Public policy requires that any ambiguity in an insurance contract will be resolved against the insurer (Lilley).
The future trend is likely to be for insurers to ask increasingly more detailed questions to ascertain the person's HIV status. There is no indication that general handicap statutes will be used to void such contracts even if they appear extreme. There are a few State and municipal statutes or insurance regulations that seek to prevent or regulate discriminatory treatment of applicants who are HIV-positive or perceived to be at risk because of their lifestyle.
Examples of extreme conduct could include compulsory testing or "redlining," i.e., refusal to issue policies in certain geographic areas where the insurer believes there is a high proportion of gays or IV drug users (National Gay Rights Advocates v. Health America). See also People v. Health America Corp., where the San Francisco district attorney sued an insurance company for advertising for applicants in San Francisco and then refusing to process any applications for health insurance from the city; Frantz v. Coastal Insurance Co., where an insurance company refused to pay for an AIDS-related death even though it had targeted gays in a promotional campaign; and Murphy v. State Farm Insurance Co., where the company refused to provide insurance for the wife and child of a man with transfusion-transmitted HIV.
The strong contract-based analysis of insurance is even clearer when one considers the reluctance of courts even to allow State regulation intended to require fairer treatment for persons with HIV (e.g., Health Insurance Association of America v. Corcoran).
This brief section comprises cases that do not fit comfortably in the subject matter outline of the report. The cases, which are grouped together because they involve irrational fears of contracting HIV, include refusal to undergo a blood test to determine paternity (e.g., Albany Dept. of Social Services on Behalf of Sousis v. Seeberger) or whether a driver is intoxicated (e.g., Pearson v. Commonwealth of Pennsylvania). Other cases include a demand that a homosexual be tested for HIV because he might transmit HIV while dispensing medication (Randall v. Alcohol Mental Health Associates).
HIV in the prison system is generating a large number of court cases. To put these cases in a rational context, it is necessary to understand what interests litigants are seeking to protect. The first, and overriding, interest is in protection of prison staff and inmates from transmission of HIV. There tend to be relatively high rates of infection in many prisons, possibly because of the backgrounds of prisoners with IV drug use. In addition, a closed environment in which there may be homosexual contact, needle sharing, and violent assaults may be conducive to the spread of HIV.
Although the corrections departments, staff, inmates, and courts all want to achieve the same goal of impeding the spread of HIV, the litigation reflects their profound differences of opinion on the best policies to achieve this goal. Should there be policies in place to compulsorily screen inmates, and to segregate those who test positive from the rest of the prison population? Should there be a duty to disclose positive test results to other inmates and staff? What kind of educational programs should be in place for staff and/or inmates? Should educational programs include graphic explanations of safer drug injection and safer sex, and should officials, for example, make condoms and bleach available?
Litigants seeking greater protection often bring claims against the State or Federal corrections systems for failure to test, screen, segregate, or educate. Inmates have a constitutional right to be protected from contracting communicable diseases that jeopardize their health and well-being. But courts also generally grant correction officials wide leeway in making administrative decisions regarding the health of inmates, unless the failure to act gives rise to a significant risk (e.g., Jarrett v Faulkner).
Virtually all the courts in our survey have found that there is no duty incumbent on correction officials to test, screen, or segregate the prisoners. Several courts have specifically recognized the epidemiologic fact that HIV is not transmitted through casual contact (e.g., Jarrett v. Faulkner, Glick v. Henderson, LaRocca v. Dalsheim, Mohammed v. Frame, Telepro v. Fauver, and Mitchell v. Fox). Nor is there a public health justification for screening food handlers (e.g., Feigley v Jeffes).
Even in cases where a prison guard failed to take action against a known violent prisoner (e.g., one who had bitten other prisoners), the courts do not Find constitutional violations (e.g., Cameron v. Metcuz). The standard is set high-the State's failure to protect the plaintiff from a known dangerous inmate must be more than mere negligence but amount to "deliberate indifference" or "gross negligence."
At least one court, however, was sympathetic to the claim that corrections departments have a duty to provide some AIDS education (LaRocca v. Dalsheim).
The State's duty to protect prison staff raises the additional issue of the worker's "right to know" any potential health hazards in the workplace. The courts have been somewhat more amenable to claims that the corrections department failed to warn prison staff of the risks. In Delaware Dept. of Correction v. Delaware Public Employees Council 82, AFSCME, the court held that a labor contract that requires management to provide a safe workplace by notifying the union of the names of HIV-positive inmates was enforceable.
The courts, then, tend to reject most claims of inmates that their health is jeopardized by correction departments' failure to test, screen, or segregate HIV-positive inmates. It may seem counterintuitive, but virtually all courts also reject claims by HIV-positive inmates that their civil rights are violated when corrections departments do require testing, screening, and segregation. The explanation for this is the marked propensity for the courts to uphold the administrative discretion of corrections officials unless their conduct is arbitrary or capricious. The one notable exception is Doe v. Coughlin, where the court struck down the establishment of an "AIDS Unit" because it violated the privacy rights of inmates infected with HIV.
Inmates who are compulsorily tested or segregated, or who have their serologic status disclosed, claim various violations of their civil rights. Their first contention is that they have a right to privacy and confidentiality of their medical condition (see, e.g., Doe v. Columbia County). The courts found no violation of privacy rights so long as the corrections department produced some evidence that disclosure of the inmate's condition was furthering a valid government purpose. Thus, segregation in an "AIDS Unit," which disclosed an inmate's medical condition (e.g., Cordero v. Coughlin), or labeling a patient's record as requiring blood and body fluid precautions (Baez v. Rapping) did not violate the inmate's privacy. The reason is that the State has some legitimate interest in promoting the health of the plaintiff, other inmates, or the staff. The courts are not often rigorous in requiring epidemiologic evidence that testing, segregation, or disclosure are reasonable public health interventions. Indeed, court decisions that testing and segregation promote a valid public health interest appear inconsistent when compared to their other decisions that HIV is not transmitted casually.
The courts, however, are more willing to uphold inmates' claims to privacy if the disclosure is not pursuant to any State policy designed to protect the health of prisoners. Thus, in Woods v. White, the court held that an inmate had a right to privacy regarding the disclosure of his HIV status. In that case the prison department gave no public health justification for the unauthorized disclosure.
Prisoners who are tested against their will claim that their autonomy or "liberty" is violated under the fourteenth amendment or that they have been subject to unreasonable searches and seizures under the fourth amendment. Again, courts have been unsympathetic to this contention. In People v. Thomas, the court had no difficulty authorizing either an HIV test on a convicted rapist or disclosure of a positive result to the prison department. Even where a Jehovah's Witness claimed religious objections to the taking of a blood sample, the court upheld the compulsory testing (Haywood County v. Hudson).
An important public health question is whether a HIV test can be required as a condition of release on bail. In People ex. rel. Glass the court held that an HIV test could not be required as a condition of bail. Much depends on the facts of the case, and whether the test is relevant to the charge.
In examining the constitutionality of compulsory testing, courts must bear in mind the restrictions placed by the U.S. Supreme Court in its line of cases beginning with Schmerber v. California, 384 U.S. 757 (1966). That case required blood tests to be relevant to the charge or conviction. Thus, testing of persons who are arrested but not formally charged or convicted could be problematic.
HIV-positive prisoners who are the subjects of screening and segregation have put forward a wide array of constitutional claims. Again, the courts usually do not find any violation of the Constitution if the corrections department has a "reasonable medical approach" (Roe v. Fauver). Claims under the first amendment have included freedom of speech, association, and the practice of religion while in isolation. Here, all courts observed that first amendment rights of inmates are not unrestricted, and that they are, in any case, outweighed by the State's public health purpose (e.g., Lewis v. Prison Health Services; see also Haywood County v. Hudson).
Inmates have claimed under the eighth amendment that their conditions of isolation were cruel and unusual. If the segregation of HIV-infected persons denied them adequate food, clothing, shelter, sanitation, or medical care and safety, plaintiffs would have a valid claim under the eighth amendment (Cordero v. Coughlin). But in none of the cases surveyed did the court find a set of facts that warranted such a finding (e.g., Roe v. Fauver).
Even where the plaintiffs claim was based upon inadequate medical treatment or misdiagnosis (McDuffie v. Rikers Island Medical Department), the courts found no constitutional violation. The Constitution does not mandate good medical care. Constitutional remedies are available to prisoners only if there is a grossly negligent failure to give care that results in actual physical injury (Thagard v. County of Cook). Nevertheless, the court in Lopez v Coughlin could not find any rational basis for denying an inmate's application to be a subject in a AZT protocol. The court regarded this refusal under the facts of the case as arbitrary.
Inmates' claims under the fourteenth amendment involve equal protection of the laws and procedural due process. The courts in this survey did not uphold equal protection arguments because HIV-positive inmates were not similarly situated to HIV-negative inmates, ad the corrections department had a public health purpose (e.g., Roe v. Fauver, Lewis v. Prison Health Service, Cordero v. Coughlin, Powell v. Department of Correction State of Oklahoma and Judd v. Packard).
Most courts also refused to uphold plaintiffs' arguments that they were entitled to procedural due process (a fair hearing) before being isolated. The reason given was that HIV-positive inmates have no "liberty" interest in avoiding segregation. This is because the segregation is intended not for punitive reasons, but to protect their health ad the health of others, ad because corrections officials have broad discretion in transferring prisoners (e.g., Muhammad v. Carlson, Cordero v. Coughlin, and Powell v. Department of Corrections State of Oklahoma).
The court in Baez v. Rapping, however, refused to grant summary judgment against the inmate. The court rested its decision on a New York statute that requires due process before a prisoner is segregated for more than 24 hours.
Courts have also upheld correction departments' decisions not to allow conjugal rights to HIV-infected inmates even if the spouse is informed of the infection (Doe and Doe v. Coughling). The court reasoned that, although prisoners have some privacy rights, the right to conjugal relations is not among them.
Finally, the courts have not upheld HIV-infected inmates' claims to be permitted to participate in work programs (e.g., Williams v. Sumner and Howard v. Slansky and Sumner).
Litigants seeking greater protection often insist on more testing, segregation, ad education. Litigants who are tested or segregated claim violations of their civil rights, including first amendment rights to freedom of association or religion, eighth amendment rights prohibiting cruel ad unusual punishment, ad fourteenth amendment rights ensuring liberty ad equal protection. The legal vehicle for many prisoner claims is under the Civil Rights Act, 42 U.S.C. section 1983, which allows persons to sue the Government for violations of their constitutional rights.
Courts often require the plaintiff to demonstrate egregious behavior on the part of the State such as a pattern of misbehavior. Persons supervising State programs are presumed to know that constitutional rights are being violated if there is a longstanding history of misbehavior. In Torres v. City of Philadelphia Police Department, the plaintiff alleged that officers intimidated witnesses by telling them he might be infected with HIV. The court held that a single instance of misbehavior will not create a violation of civil rights. But in Fenton v. City of Philadelphia, the court said that a single instance of egregious behavior may give rise to a cognizable harm under the Constitution. In Fenton, the plaintiff alleged that officers willfully attached a memo to his arrest report saying that he had AIDS. He said he was beaten by guards and inmates as a result of the report.
The HIV-related cases in the military cover many of the same subject matter areas as in the rest of the report. Several military cases are included in other parts of this report. For example, the section on testing ad screening provides a review of cases upholding screening programs in the military. The major military cases discussed here are also relevant to other major sections in this report discrimination, the criminal law, and protection of the blood supply.
A. Discrimination
In Doe v. Ball, a Federal district court held that the affirmative action mandate of the Rehabilitation Act does not extend to programs involving uniformed military personnel. This holding, if applied to all claims under the Rehabilitation Act by uniformed military personnel, would preclude most military discrimination cases (see, e.g., Doe v. Marsh).
The military is, however, entitled to issue guidelines that require its health care workers to follow infection control procedures ad to treat HIV-positive patients. A New York State Department of Labor Appeal Board upheld an initial unemployment office determination disqualifying a dental hygienist employed in a Army-operated dental unit from receiving unemployment benefits because she voluntarily left her employment without good cause to avoid disciplinary action for refusing to treat HIV-infected patients (In re Ponchak).
B. Courts-Martial: Crime of Risking Transmission of HIV
There have been numerous cases in the military charging a person infected with HIV with a offense for having sexual relationships. The specific charges range from conduct discrediting the military service and disobeying an order, to aggravated assault and reckless endangerment.
1. Conduct discrediting or prejudicial to good order and discipline in the Armed Forces
Article 134 of the Uniform Code of Military Justice prohibits conduct discrediting or prejudicial to good order and discipline in the Armed Forces. In United States v. Woods, a Navy hospital serviceman was found guilty of a offense under this article, for engaging in unprotected sexual intercourse knowing that he was infected with HIV and having been counseled regarding his sexual behavior. The Marine Court of Military Review held that although there is no requirement that the serviceman's conduct be prohibited by order or regulation, the act or duty neglected must be one a military person may legally and properly be called upon to perform. The court did not resolve whether consent would constitute a valid defense to the charge, but did conclude that failure to provide notice of HIV infection need not be alleged as an element of the offense.
2. Willful disobedience of a superior commissioned officer
Article 90 of the Uniform Code of Military Justice prohibits the willful disobedience of a superior commissioned officer. HIV-infected servicemen have been charged under this article for disobeying a direct order not to have sexual intercourse (e.g., United States v. Sergeant and United States v. Roantes).
In United States v. Negron, the Army Court of Military Review held that a serviceman violated article 90 by failing to inform his sexual partner, even though he wore a condom.
"Safe sex" orders have been found to be a lawful exercise of command authority because of the legitimate health care concerns of the command (United States v. Womack).
3. Military assault, aggravated assault, and reckless endangerment: admissibility of HIV test results
In a number of cases, servicemen were charged with the more serious offense of assault, aggravated assault, or reckless endangerment (see, e.g., United States v. Manning). A guilty plea to such a charge was accepted by the Army Court of Military Review, even though at the time it was thought that less than 50 percent of HIV-positive persons progressed to AIDS (United States v. Stewart).
The key issue in these cases is whether the serviceman's HIV status is admissible in evidence. In United States v. Crawford, a military judge found a person's serologic status to be inadmissible under then existing Secretary of the Navy instructions, which have since been changed to allow admission. In United States v. Grimes, the Navy-Marine Corps Court of Military Review held that a serviceman's HIV status was admissible to determine whether his bite was likely to produce grievous bodily harm.
4. Making false official statements
The issue on appeal in the U.S. Army Court of Military Review in United States v. Watson is whether a serviceman's conviction for making false official statements should stand. The HIV-positive serviceman failed to inform a military medical officer about his medical history.
C. Blood Transfusions From Military Sources
The cases in this section are similar to those already discussed in the section on protection of the blood supply, alleging negligence for failure to adequately screen blood for HIV (e.g., Doe v. Cutter, Knight v. United States, Phipps v. United States, and Valdiviez v. United States). In the only decided case, the court refused to issue a summary judgment against the United States because at the time of the plaintiff's transfusion there was no established test to detect HIV antibodies (Valdiviez).
This survey should be useful on several levels. It documents an important piece of contemporary social history. The cases and controversies revealed in the courts ad human rights commissions illustrate vividly the social impact of the HIV epidemic. The social effects of the epidemic reach deeply into our society, including schools, hospitals, prisons, and the family.
But the survey does not merely look back to an important part of the history of disease epidemics. It also helps forecast the issues policymakers must be concerned about in the future. The disputes that occur today will grow into legal precedent when ultimately decided by the courts. The cases that are currently being tried also illuminate the concerns of the public about the epidemic. In cases involving our major institutions such as schools, hospitals, and insurance, policies can be developed now to avoid dissension and address problems of access.
Finally, decided cases, together with statutes and regulations, create the rights, duties, and limitations that profoundly affect persons infected with HIV and the institutions with which they come into contact.
Larry Gostin is Executive Director, American Society of Law & Medicine; Adjunct Associate Professor of Health Law at the Harvard School of Public Health; and Associate Director of the Harvard University/World Health Organization Collaborative Center on Health Legislation.
Lane Porter is in the private practice of health law, Washington, DC; Chair, International Health Law Committee, American Bar Association; and Co-chair, Health Law Section, DC Bar.
Hazel Sandomire is Research Scholar, Silver Program in Law, Science and Technology, Columbia University; and Adjunct Assistant Professor of Law, Brooklyn Law School.
Several organizations were especially helpful in circulating and responding to our survey letter. They included: National Organizations Responding to AIDS (NORA); National Association of Protection and Advocacy Systems; the American Public Health Association (APHA); the AIDS Legal Referral Panel of San Francisco; the National Prison Project of the American Civil Liberties Union (ACLU); Whitman Walker Clinic of Washington; AIDS Civil Rights Project of the National Gay Rights Advocates (NGRA); the Pettus Crowe Foundation; the San Francisco and Los Angeles Offices of the American Civil Liberties Union; and the Office of the City Attorney in Los Angeles.
There were several individuals and organizations who graciously gave us access to their case files; provided case illustrations; sent us copies of unpublished or otherwise "hard to find" documents; advised and guided us to case materials; circulated our survey letter; or otherwise provided us information. We appreciate the help of Ken Labowitz of Fagelson, Schonberger, Payne and Arthur; Ben Schatz, NGRA Civil Rights Project; Judy Greenspan, ACLU National Prison Project; David Schulman, Office of the City Attorney, Los Angeles; Clint Hockenberry, AIDS Legal Referral Panel, San Francisco; Mat Coles, ACLU of Northern California; Norm Nickens, San Francisco Human Rights Commission; Ruth Eisenberg, Whitman Walker Clinic; Rich Gilbert, APHA; Jean McGuire, NORA; Irene Crow, Pettus Crowe Foundation; David Piontkowsky, Esq.; Colonel Francis Gilligan, Army Office of the Judge Advocate General; Major Paul Capofari, Army Office of the Judge Advocate General; Tom Heintzelman, Army Office of the Judge Advocate General; Lt. Siguurd Peterson, Navy Office of the Judge Advocate General; Richard Bollow, of Jenner & Block; and Rita Theisen of LeBoeuf, Lamb, Leiby & MacRae.
Valuable data was received from the New York City based organizations which, most generously, gave us access to their case files and/or other personal assistance. We owe a great debt of gratitude to Nan Hunter (Director) and William Rubenstein (Counsel) at the Lesbian and Gay Rights Project of the ACLU; to Mitchell Karp (Counsel) of the New York City Human Rights Commission; to Tom Stoddard (Director) and David Barr (Counsel) of LAMBDA; and to Mark Barnes (Co-Director) and Jennifer Klein of the Columbia University AIDS Law Clinic.
We also owe a debt of gratitude to Andrews Publications (Edgemont, PA), publishers of the AIDS Litigation Reporter, for their kind permission to use the data in the ALR.
A project of this vast scope cannot be completed without the dedication and expertise of research associates. The following individuals made valuable contributions to this report: Marie Calabrese, Boston University Law School; Jeffrey Hewitt, R.N., M.S., Columbia University Law School; and Alissa Spielberg, Boston College Law School.
We especially acknowledge the staff at the National AIDS Program Office (NAPO) and other offices at the Public Health Service (PHS) in the Department of Health and Human Services: Jim Allen, Director, NAPO; Iris Gelberg, External Relations Officer, and Project Officer, NAPO; Richard Riseberg, Chief Counsel, PHS; John Wells, NAPO; John Fanning, Senior Health Policy Adviser, Health Planning and Evaluation, PHS; Christopher Pascal, Legal Adviser, Alcohol, Drug Abuse, and Mental Health Administration; and Patricia MacKey, Office of Civil Rights. These individuals provided critically important advice at every stage of the project.
L.G. L.P. H.S.
Centers for Disease Control. 1982a. Pneumocystis carinii pneumonia among persons with hemophilia A. MMWR 31:365-367.
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900630Copyright (c) 1990 - CDC National AIDS Clearinghouse. Reproduced with permission.
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