The San Francisco Examiner; April 15, 1998
Lisa M. Krieger of the Examiner Staff

The outcome of Bragdon vs. Abbott, which asks the court to define who qualifies for protection under the Americans with Disabilities Act, is very likely to influence the outcome of a suit by Guerneville HIV patient Stephen Iacovino against orthopedic surgeon Dr. Franklin Hoagland of UC-San Francisco, according to attorneys familiar with both cases.

Bragdon vs. Abbott deals with a Maine dentist's alleged refusal to fill a cavity for a patient with asymptomatic HIV. The patient is claiming discrimination under the ADA, saying HIV is a disability.

In Iacovino vs. Regents of the University of California, Hoagland is accused in San Francisco Superior Court of refusing last year to conduct surgery on the shoulder of HIV patient Iacovino.

Iacovino charges that the doctor discriminated against him by not performing surgery. Hoagland responds that surgery would have put Iacovino at high risk of post-operative infection.

Although Iacovino vs. Regents of the University of California does not allege outright ADA claims, it does state claims under the state's Unruh Civil Rights Act. A violation of the ADA is likely to be considered a violation of the Unruh Act - or would, at very least, open the doors to an Unruh claim.

If the justices hold that HIV is not a disability and that courts should defer to doctors' medical judgments about what they can treat safely, the scales tip in favor of Hoagland and other doctors and dentists. State courts generally defer to the wisdom of the U.S. Supreme Court.

On the other hand, a ruling that HIV is a disability could help Iacovino's case, as well as future cases by patients - although it would still be necessary for people with HIV to prove discrimination.

One case that may play an important role in the Supreme Court's deliberations over Bragdon is School Board of Nassau County vs. Arline, according to Mike McKee, associate editor of the San Francisco legal newspaper the Recorder.

The 1987 Arline ruling held that courts should generally defer to public health authorities assessments of safety risks. Bragdon and Hoagland want that principle extended so that the courts defer to individual clinicians, like themselves. But AIDS activists say the courts should not defer to the person who is engaging in the discrimination.

Iacovino says his avascular necrosis of the right shoulder was so painful that he was taking daily doses of morphine and could not lift his arm to play the keyboard. Physical therapy had not helped. His physicians recommended shoulder replacement. After being rejected by Hoagland, Iacovino had the procedure performed in Hawaii.

Hoagland's attorney Michael Lucey said the surgery was elective, not essential, and would put the patient at risk of bacterial infection because of his immune suppression. Iacovino had a T cell count of 214 at the time. "Dr. Hoagland used reasonable medical judgment at the time that the risk of infection was not warranted for elective surgery," said Lucey.

Iacovino attorney Gary Cloutier responds that Hoagland came up with an excuse so he wouldn't have to operate on Iacovino. "Why should the courts just rubber-stamp a doctor's decision if there is no medical basis in fact?" he asked.

The U.S. Supreme Court is expected to rule on the Bragdon case in July.

Prostitutes' risk from lovers

A study of female prostitutes in Nevada brothels found that while all used condoms consistently with clients, only about one-fourth used condoms consistently with their multiple lovers.

They are at much greater risk of acquiring HIV and other sexually transmitted diseases from lovers than clients, concluded researcher Alexa E. Albert of Emory School of Medicine in Atlanta.

Of 3,290 clients visiting the 40 women in the study, 2.7 percent were reluctant to use condoms, which are required in brothels by Nevada law. Of these, 72 percent ultimately used condoms, while 12 percent chose non-penetrative sex without condoms. The remaining 16 percent left the brothel without services.

Almost all women had lovers outside their work. Although two-thirds were monogamous, one-third had between two and 10 partners. About 82 percent reported inconsistent or no condom use with lovers. The most common reason for not using condoms with lovers was that there was no perceived risk of infection (i.e., "I trust him," or "He's monogamous." )

The study is published in the April issue of the American Journal of Public Health.

New AIDS funding

The U.S. Department of Health and Human Services announced Tuesday that more than a half a billion dollars would be spent in grant awards for 1998 to improve health care and support services for people living with HIV-AIDS.

The grants are funded under Title II of the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, which provides HIV-AIDS care and medicines to low-income, uninsured and underinsured individuals affected by the epidemic.

California will get $30,612,837 in treatment funds and $43,064,687 in AIDS Drug Assistance Program (ADAP) funds, for a total of $73,677,524.

The toll

Steven Lynn Smith, 38, an award-winning radio and TV broadcaster who became president of the Gay Men's Chorus of Los Angeles. His death was a suicide although he had been suffering from AIDS, friends told the Los Angeles Times. He began his broadcasting career as a producer for KNXT-TV, which later became KCBS-TV, then became editorial director at KNX. Among his many awards were four National Editorial Excellence Awards and the National Distinguished Service Award from the Society of Professional Journalists.

To contribute to AIDSweek, call (415) 777-7867. AIDSweek columns are available on the Internet at http://www.examiner.com/aidsweek/aidsweek.html

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