476 F.Supp.3d 20
S.D.N.Y.2020Background
- The United States sued Dr. Emmanuel Asare and his practice, Springfield Medical Aesthetic P.C., under Title III of the ADA; Mark Milano intervened under the NYCHRL. The Government alleged Defendants denied cosmetic surgery to people with HIV or on antiretroviral drugs.
- Bench trial addressed liability for two plaintiffs (J.G. and S.V.), and Milano sought emotional-distress damages and injunctive relief; the court later appointed a neutral medical expert to resolve key medical issues.
- Defendants routinely ordered preoperative HIV tests without obtaining patient consent and used test results (positive or inconclusive) to cancel or refuse surgeries.
- J.G. (HIV positive, undetectable viral load) had surgery cancelled after undisclosed testing; S.V. was told he was HIV positive based on an inconclusive/false result after sedation; Milano was refused service when he disclosed antiretroviral use.
- The court found preoperative HIV testing medically unnecessary given universal precautions, credited plaintiffs' testimony over key parts of Dr. Asare's testimony, held ADA and NYCHRL violations, awarded $125,000 to each aggrieved person, imposed a $15,000 civil penalty, and enjoined routine or consentless HIV testing and ordered ADA-compliant intake policies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether policy of refusing cosmetic surgery to people with HIV or those on antiretrovirals violates Title III of the ADA | Defendants applied eligibility criteria that screened out people with HIV and failed to provide individualized assessment or reasonable modifications | Policy justified by purported medical/safety concerns and potential drug interactions | Violation: policy constituted unlawful "screen-out" discrimination and failure to provide reasonable modifications; law of the case supports this ruling |
| Whether routine preoperative HIV testing without consent and using those results to deny care was lawful or medically necessary | Testing was unnecessary because universal precautions suffice; testing was used to identify and screen out people with HIV; consent required | Testing alleged necessary to determine surgical candidacy given lab abnormalities and medication interactions | Held testing was not medically necessary, was performed without consent, violated the standard of care, and was used to unlawfully screen out patients |
| Proper measure of compensatory damages for emotional distress under ADA and NYCHRL | Plaintiffs sought emotional-distress damages for severe humiliation, anxiety, sleeplessness, therapy, and work impairment | Defendants emphasized lack of malicious intent and argued for lower awards | Court awarded $125,000 each to J.G., S.V., and Milano (higher end of garden-variety emotional distress range) |
| Appropriateness of civil penalties and injunctive relief | Government sought civil penalties and injunctions to prevent recurrence and vindicate public interest | Defendants argued absence of intentional or malicious conduct makes penalties inappropriate | Court imposed $15,000 civil penalty (total), enjoined routine HIV testing and testing without express consent, and ordered written ADA-compliant intake/screening policies |
Key Cases Cited
- Krist v. Kolombos Rest. Inc., 688 F.3d 89 (2d Cir. 2012) (bench-trial ADA standard: liability proven by preponderance of the evidence)
- Metro. Stevedore Co. v. Rambo, 521 U.S. 121 (U.S. 1997) (explaining preponderance standard and factfinder credibility determinations)
- Merck Eprova AG v. Gnosis S.p.A., 901 F. Supp. 2d 436 (S.D.N.Y. 2012) (trial-court credibility and factfinding principles)
- Johnson v. Holder, 564 F.3d 95 (2d Cir. 2009) (law of the case doctrine)
- Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) (ADA purpose and interpretation)
- Bragdon v. Abbott, 524 U.S. 624 (U.S. 1998) (HIV constitutes a disability under the ADA)
- Bauer v. Muscular Dystrophy Ass'n, 427 F.3d 1326 (10th Cir. 2005) (examples of eligibility criteria being "necessary" for safety)
- Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998) (safety as justification for eligibility requirements)
- Easley by Easley v. Snider, 36 F.3d 297 (3d Cir. 1994) (essential-purpose analysis for necessary criteria)
- Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324 (S.D.N.Y. 2010) (health professional duty to assess infection risk objectively under ADA)
- Patterson v. Balsamico, 440 F.3d 104 (2d Cir. 2006) (emotional-distress damages precedent)
- Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. 2012) (emotional-distress damages range and approval of substantial awards)
- Tull v. United States, 481 U.S. 412 (U.S. 1987) (civil penalties serve to punish and vindicate public interest)
- United States v. Balistrieri, 981 F.2d 916 (7th Cir. 1992) (civil penalties vindicate public interest)
- Duarte v. St. Barnabas Hosp., 341 F. Supp. 3d 306 (S.D.N.Y. 2018) (NYCHRL permits compensatory damages for emotional distress)