Important note: Information in this article was accurate in 1999. The state of the art may have changed since the publication date.
Bay Windows - National News January 07,1999
Scott A. Giordano,Bay Windows staff
Abbot won her lawsuit against her Bangor, Maine, dentist -- Dr. Randon Bragdon -- who had refused to fill her cavity in 1994 after learning she is HIV-positive. The ADA protects people from discrimination in places of public accommodation, such as a dental office. When the nation's highest court ruled that people with HIV are protected under the ADA, it then remanded the case known as Bragdon vs. Abbot for review in the Appeals Court based on Bragdon's "direct threat" argument that he was at risk for acquiring HIV if he treated Abbot.
In its ruling last summer, the U.S. Supreme Court set a standard that defines a "direct threat" as one based on objective medical information as to the significance of the risk and not on a health care provider's personal beliefs. The lower court used that standard and heard arguments on Dec. 9 and then concluded in a nine-page decision on Dec. 29 that there wasn't enough evidence for Bragdon to proceed with a trial.
Abbot was represented by attorney Ben Klein, from the Boston-based Gay and Lesbian Advocates and Defenders (GLAD) -- a legal organization that specializes in lesbian and gay issues. Klein recently was named as one of the top 10 lawyers of 1998 by Massachusetts Lawyers Weekly, a local professional publication. A press release noted he was named as such due to his representation of Abbot in the landmark case that marked the first time the Supreme Court ruled on one dealing with HIV/AIDS.
"I think this has been a long case, and there were a lot of twists and turns, and there are four published federal court decisions on this one case, so it's nice to have the final leg completed. I felt it was unnecessary for the Supreme Court to send the case back to the [Appeals Court] and the [Dec. 29] decision indicated [the Appeals Court] felt the same thing. They issued this decision three weeks after oral arguments, which was extraordinarily fast," Klein said.
The Appeals Court based its decision on the 1993 Dentistry Guidelines formulated by the Centers for Disease Control and Prevention in Atlanta, and on the American Dental Associaton's Policy on AIDS/HIV Infection and Practice of Dentistry. The Court concluded both indicate the use of so-called "universal precautions" render the risk of performing the cavity-filling procedure in a dental office to be insignificant.
"Dr. Bragdon did not submit evidence ... demonstrating a genuine issue of material fact on the direct threat issue," reads the written decision. "The state of scientific knowledge concerning [HIV/AIDS] is evolving, and we caution future courts to consider carefully whether future litigants have been able, through scientific advances, more complete research, or special circumstances, to present facts and arguments warranting a different decision."
Although Bragdon could file a petition now with the U.S. Supreme Court asking it to accept the case for review again based on the Dec. 29 ruling, Klein said that is extremely unlikely to happen.
Abbot didn't seek any financial compensation in the case, but rather sought a court order that would make Bragdon comply with the ADA.
"Based on the latest decision, that court order is final unless the Supreme Court takes the extraordinary step of taking the case again," Klein said.
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