American Journal of Law & Medicine

Access to medical care for HIV-infected individuals under the Americans with Disabilities Act: a duty to treat.


Martin Luther King had a dream. We have a vision. Dr. King dreamed of an America "where a person is judged not by the color of his skin, but by the content of his character." [The Americans with Disabilities Act's] vision is of an America where persons are judged by their abilities and not on the basis of their disabilities.[1]

As the acquired immunodeficiency syndrome (AIDS) epidemic enters its second decade, discrimination against people infected with the human immunodeficiency virus (HIV)[2] occurs constantly.[3] People infected with HIV are denied access to services and receive unequal treatment in areas as diverse as education, employment, housing, property, and commercial establishments.[4] Discrimination in access to health care produces perhaps the most devastating effects.[5] It leaves helpless those most in need of care. Drug rehabilitation programs,[6] dentists,[7] doctors,[8] emergency rooms,[9] and abortion clinic[10] routinely deny HIV-infected individuals access to services.

In July 1990, President Bush signed the Americans with Disabilities Act[11] (ADA). This statute protects disabled individuals from discrimination by private employers,[12] public services,[13] public transportation,[14] telecommunication services,[15] and private persons or entities that operate public accommodations and services.[16] Congress expressly included hospitals and the professional offices of health care providers (HCPs) in the definition of public accommodations.[17] In addition, the legislative history of the ADA demonstrates that Congress considered people infected with HIV to have a disability.[18]

This Note posits that, with the passage of the ADA, Congress imposed a statutory duty on an HCP to provide care to those with disabilities, including people infected with HIV who qualify under the statute. Part II discusses the traditional scope of an HCP's duty to treat paying patients. With a few exceptions, an HCP has no duty to treat anyone with whom it does not have a pre-existing contractual relationship. In particular, this Note analyzes how the "no duty" rule affects to care for those infected with HIV. By examining the legislative history of the ADA, Part III uncovers Congress's intent to impose a duty on HCPs to treat people with disabilities unless an individual poses a direct threat to the health or safety of others. Finally, Part IV predicts the impact that the ADA will have on access to health care for people infected with HIV. In particular, this section analyzes and rebuts the potential limitation that the "direct threat" exception could have on the availability of health care to people infected with HIV.


Historically, HCPs have had no duty to treat a particular individual. However, several exceptions to this "no duty" rule exist.


The No Duty Rule. Contract theory governs the relationship between the physician and patient.[19] Traditionally, HCPs could, "[i]n the absence of a prior agreement or a statutory or regulatory prohibition ... in deciding whether to accept patients, discriminate among them on the basis of all sorts of irrelevant and invidious criteria ...."[20] Until both parties manifest either an express or implied intent to create a contractual relationship, the physician has no duty to treat the patient.[21]

The "contractual" characterization of the HCP's duty seriously limits the patient's ability to obtain treatment. For example, in Childs v. Weis, a doctor refused treatment to a bleeding pregnant woman in labor.[22] Because the physician had no prior relationship with the woman, the court did not impose any liability on the HCP for the woman's injuries or the death of her child.[23] The court applied the "no duty" rule and concluded that "a physician is not to be held liable for arbitrarily refusing to respond to a call of a person even urgently in need of medical or surgical assistance provided that the relation of physician and patient does not exist ...."[24]

Exceptions to the No Duty Rule. The "no duty" rule does not apply in certain situations. For example, an individual's reliance on an HCP's gratuitous undertaking imposes a duty on an HCP to treat that individual.[25] An illustration of a gratuitous undertaking is when a hospital conspicuously provides emergency care.[26] Having done so, the hospital must treat any patient requiring emergency care.[27] In most jurisdictions, hospitals with emergency rooms are required to treat anyone who requests treatment for a medical emergency.[28]

HCPs in hospitals may take reasonable precautions to protect themselves during emergencies. A blanket refusal to treat, however, does not constitute such a precaution.[29] Therefore, an HCP in a hospital emergency room cannot refuse to treat a person infected with HIV in an emergency situation. Since the duty to treat lasts only as long as the patient's emergency, the imposition of this duty does not provide any extended assurance of care to people infected with HIV.

Both hospitals and physicians also have a duty to complete treatment for a specific problem once they have initiated care.[30] The commencement of treatment signifies the creation of a contractual relationship.[31] An HCP can terminate a relationship with the patient in only four situations: when the patient dismisses the HCP; when the patient and HCP mutually consent to the termination; when the HCP's services are no longer needed; and when the physician and/or other HCP withdraws from a case after giving the patient a suitable substitute or reasonable notice.[32] These common law rules apply to everyone, including people infected with HIV.


Prior to the enactment of the ADA, section 504 of the Rehabilitation Act of 1973[33] provided disabled individuals with their greatest statutory protection against discrimination. It states, in pertinent part, that "[n]o otherwise qualified individual with handicaps ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance...."[34]

To prevail in a suit under section 504, a plaintiff must prove four elements: [1] he falls within the Rehabilitation Act's definition of an "individual with handicaps"; [2] he is "otherwise qualified" for the benefit or program from which exclusion has occurred; [3] his handicap constitutes the sole reason for his exclusion; and [4] section 504 applies to the program that excluded him.[35]

The Rehabilitation Act's framework provides HIV-infected individuals with protection from discrimination. Under section 504, an "individual with handicaps" is "any person who [1] has a physical or mental impairment which substantially limits one or more of such person's major life activities; [2] has a record of such impairment; or [3] is regarded as having such impairment."[36] Courts determine the existence of a handicap on a case-by-case basis. Accordingly, neither HIV infection nor the existence of full-blown AIDS automatically qualifies an individual as disabled. However, courts thus far have generally found a handicap in cases involving a person infected with HIV.[37]

After establishing the presence of a handicap, this person must show that he is "otherwise qualified" to participate in the program or activity.[38] An "otherwise qualified" person under the Rehabilitation Act is an individual who meets all of a program's requirements "in spite of his handicap."[39] Therefore, if an HIV-infected individual can show that he meets the objective criteria for participating in a federally funded program, courts will hold that he is "otherwise qualified."

HCPs attempt to circumvent the "otherwise qualified" provision by establishing HIV negativity as an eligibility criterion. For example, in Doe v. Centinela Hospital, the hospital's residential drug and alcohol treatment program required HIV negativity for all program participants.[40] In such a case, the HCP must prove that HIV negativity, like any other criterion, constitutes a necessary requirement.[41]

In assessing the eligibility criteria that screen out infected people, courts look at four factors: the nature of the risk (i.e., how the disease is transmitted); the duration of the risk; the severity of the risk; and the probability that transmission of the disease will occur and cause varying degrees of harm.[42]

In Centinela, the hospital and the plaintiffs agreed on the nature, duration, and severity of HIV infection.[43] However, the parties disagreed as to the probability of transmission. The hospital alleged five instances of previous sexual conduct between patients.[44] It further claimed that HIV negativity constituted a necessary eligibility requirement because of the occurrence of this high-risk activity.[45] The plaintiff responded that the hospital should not impose eligibility criteria based on HIV status because engaging in sexual conduct was voluntary.[46] The court never decided whether HIV negativity was a necessary eligibility requirement because the parties reached a settlement.[47] The facts of this case, however, present a useful illustration concerning the eligibility criteria.

Section 504 of the Rehabilitation Act protects access to medical care in limited circumstances. If a patient infected with HIV demonstrates that he meets the eligibility criteria or that the program used unnecessary criteria, courts should find the exclusion discriminatory. …

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