Physicians treating patients who are HIV positive face a firm legal standard that is designed to protect against discrimination, according to a strongly-word opinion from the California Court of Appeal. California law “provides a comprehensive statutory scheme to protect all persons from unlawful discrimination,” the Court explained. “A medical doctor is not immune [from its] broad sweep.”
According to the facts relied on by the appellate panel following a trial in which the physician prevailed, Dr. Theodore Tuschka, an anesthesiologist, refused to go forward with an abdominal hernia repair surgery after learning that the patient, identified as Maureen K., was HIV positive, but not taking anti-retroviral (ARV) medication.
The patient was diagnosed as HIV positive in 2006, and was under the regular care of her primary care physician and an immunologist. In late 2008, Maureen stopped taking her ARV medications because of negative side effects. In early 2009, the patient developed a painful umbilical hernia and her primary care physician referred her to a surgeon. The primary care physician informed the surgeon that Maureen was HIV positive and not currently taking ARV. After meeting the patient, the surgeon wrote in the patient’s chart “HIV without AIDs” and ordered several non-HIV-related lab tests. After reviewing the lab results, the surgeon was satisfied that the patient was suitable for surgery.
On the day of surgery, the patient signed a hospital consent form and informed the nurse administering an IV line that she was HIV positive. Shortly thereafter, Dr. Tuschka introduced himself as her anesthesiologist and began reviewing the chart. According to the patient, the anesthesiologist loudly announced that she was HIV positive and that the chart contained no information on viral loads or t-cells. When she responded to Dr. Tuschka’s question and told him that she was not on ARV, she said that he told her he was not going to participate in the surgery. He left for a few minutes and then returned, telling her that he had reached the surgeon and that the surgery was cancelled.
Dr. Tuschka wrote in the patient’s hospital chart: “Patient with HIV positive off medications two months. Suggest workup by treating physician documenting viral loads and infectious status. Hopefully patient will be on meds or have documented nonviremic state for the safety of operating room personnel.”
At a trial alleging discrimination by the anesthesiologist, an expert testified that when appropriate precautions are taken, surgery on an HIV-positive patient is no more dangerous, for the patient or medical personnel, than surgery on a patient who is not HIV-positive. An expert for Dr. Tuschka opined that the surgery might have been more risky for the patient because the surgeon planned to patch the hernia with mesh. If that mesh became infected, treatment might have been more difficult for someone who is HIV-positive.
The issue for the Court of Appeal was whether it was proper for the trial court to ask the jury if the patient’s HIV status made her “disabled” under California law. The jury’s finding that she was not disabled allowed Dr. Tuschka to prevail, but on review, the Court of Appeal thought otherwise.
(There are two types of questions to be answered at trial: “legal” and “factual.” Legal questions are those that a judge determines by applying the law. Factual questions are left to the jury, which must decide between two sides of a story. Appellate justices can order a new trial if they find the lower-court judge made material errors on “questions of law.”)
In Maureen K. v. Theodore Tuschka, MD, the appellate panel said the judge should not have had the jury decide whether Maureen’s HIV status qualified her as “disabled” under the Unruh Civil Rights Act, which protects persons with physical disabilities from discrimination in accommodations, including, “advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
“It defies common sense to say that an incurable illness marked by a progressive and ultimately total destruction of the immune system is not an actual disability. We conclude as a matter of law that HIV is a disability within the meaning of the Unruh Civil Rights Act.”
“No medical doctor should have liability for refusing to perform a procedure that he or she believes will harm the patient,” the Court of Appeal said. But when a physician denies a medically necessary surgery on an HIV-positive patient based on an unreasonable fear over personal safety, the appellate court said, that denial violates the Unruh Civil Rights Act.
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc.(CAP).
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