Lesley v. Hee Man Chie

no record evidence Straughn cites Delta is entitled reim-

contrary and that amount to its pursuant

bursement policy.

“accident leave” judgment en- summary

Accordingly, entirely counterclaim was on Delta’s

tered

proper.

Ill

CONCLUSION judgment court is affirmed

The district against respects. are assessed

in all Costs

appellant.

SO ORDERED. LESLEY, Plaintiff, Appellant,

Vickie CHIE, M.D., Defendant,

HEE MAN

Appellee.

No. 00-1254. Appeals, Court of

United States

First Circuit.

Heard Oct. 2000. May

Decided Straughn to receive full period January through enabled to continue terclaim for the July oversight salary after July its since own Klein, Bennett H. Gay with whom & Lesbian Advocates & Defenders was on brief, appellant. Straus, III, B.

Charles with whom Rob- Mirick, ert V. O’Connell, Deiana and De- brief, Lougee Mallie & were on for appel- lee. Levin,

Donna E.- Counsel, General Spe- General, cial Attorney Assistant and Ed- Sullivan, Counsel, mund J. Deputy General on brief for Department of Public Health Massachusetts, Commonwealth of amicus curiae.

Carl Valvo Cosgrove, Eisenberg and Kiley, P.C. on brief for Massachusetts Society Medical and Professional Liability Foundation, Ltd., amici curiae. TORRUELLA, Before Judge, Chief LIPEZ, LYNCH and Judges. Circuit for which depression, manic suffered from LYNCH, Judge. Circuit Because lithium increas- took lithium. she Chie, obstetrician-gyne- Man Dr. Hee abnormalities, Dr. fetal heart es the risk of during her treated Vickie cologist, echocardiogram a fetal ordered 1995. After in 1994 and pregnancy recommended, He early March 1995. also HIV, up Dr. ended for Chie positive tested routinely patients, he for his as did that, in hospital to another referring her for Human Immunodefici- Lesley be tested to han- qualified judgment, was better (HIV), the virus that causes ency Virus HIV-positive patients. by deliveries dle for HIV. Lesley positive tested AIDS. there, safely and was delivered baby The infection. HIV without with patients treated While Dr. Chie had practice, he had gynecological HIV in his later, Lesley Dr. sued Chie years Two a woman with baby never delivered gist The of her suit is damages. for Thus, Lesley’s appointment before HIV. solely her treatment be- Dr. Chie denied results, inquired Dr. her test Chie discuss in violation of HIV-positive, cause she was pregnant for proper treatment about laws. The disability discrimination various with HIV. women summary judgment entered district court Chie, Lesley which Dr. from in favor of earlier, February year About Chie, Lesley F.Supp.2d appeals. (NIH) Health Institutes of the National (D.Mass.2000). us to requires The case to administer a clinical trial sponsored had to a far courts should defer determine how women with drug pregnant AZT to course of as to the best judgment doctor’s components. trial had three HIV. The in the disabled treatment during pregnan- orally AZT Women took treat- discriminatory denial of context intravenously received it cy; they then the doctor’s hold that ment claims. We birth, and after delivery; during labor absent a given to be deference judgment is syrup. AZT Ac- given newborn was judgment that the showing by plaintiff trial, to the results of cording Ap- basis. lacked reasonable medical reduced the risk of treatment three-part case, affirm. we plying this standard from 25.5 HIV to newborns transmitting on this Based percent percent. to 8.3 I. rate, Public the United States success undisputed. are following The facts for ad- guidelines published Health Service Au- during pregnancy AZT ministering in late Lesley pregnant became Vickie gust 1994. December, seeing ob- began she Hee Man Chie stetrician-gynecologist 1994, the Massachusetts In November Lesley’s had been care. prenatal (MDPH) of Public Health Department admitting He had since 1982. gynecologist all obstetri- Advisory mailed Clinical a com- Hospital, at Leominster privileges Advisory The cians in the state. Clinical Leominster, Massachu- munity hospital Public Health Service the U.S. reproduced setts, where lived. treatment, including a AZT guidelines for oral and intrave- dosage schedule for several fixed Dr. Chie of advised advisory The also administration. had nous medical conditions. She preexisting the treatment disorder, to discuss urged doctors a seizure insipidus, diabetes brief,1 In an amicus patients. also with their dysplasia. She history of cervical Health, well as that filed Public acknowledge appreciation the ami- ment of 1. We Depart- brief the Massachusetts cus filed case, Depart- states: “It was the with her the MDPH about or enroll Health’s intent when it ment of Public Lesley Worcester Memorial’s Pro- HIV Advisory that these es- issued Clinical gram so that baby she could deliver her steps prescribe and monitor tablished there. immediately implemented by any AZT be 20, 1995, Lesley On March and her hus- obstetrician, including community licensed band met with Dr. The Chie. doctor told as Dr. The obstetricians such Chie.” test them about the Program HIV Worces- monitoring AZT’s side effects is a com- ter Memorial gave them Nurse plete blood count and liver function test. Noone’s name and telephone number. Dr. According to the MDPH: “These two Chie told he no experience regularly by blood tests are used obstetri- administering Lesley expressed AZT. con- cian/gynecologists part prenatal as in fidence his abilities and made a follow- Dr. in fact care.” Chie used the same up appointment for March 30. In the tests to monitor the side effects of interim, she met with Nurse Noone and medication. anti-depressant signed up counseling and other support deposition, At his Dr. Chie said that he services offered Program, HIV but Advisory

read the MDPH Clinical when he planned to prenatal continue her care with in Subsequently, received it late 1994. baby Dr. Chie and to deliver her at Leo- learning after had tested posi- minster. HIV, tive for he called Leominster Before the follow-up appointment, Dr. Hospital to pharmacy determine whether Man, Chie contacted Dr. chairman of Leo- AZT delivery, was available for as the Committee, P minster’s & T and asked Advisory Clinical recommended. The Ad- for AZT to be made available at the hos- visory states: “Consultation with the hos- pital pharmacy protocol and for a to be pital pharmacist regarding ZDV [AZT] put place in administering the drug in- availability drug preparations and should travenously delivery. at labor and Such a to prior projected done need to protocol would have included notifying delay initiating any part avoid of this physicians that AZT was available for use protocol.” pharmacy The told Dr. Chie during pregnancy delivery, and giving and available, yet that AZT was not and that training nurses in-service proce- he would have to call Leominster’s Phar- for administering dures the drug. Dr. (P T) Therapy maceutics & Committee & Man assured Dr. Chie that he would get drug approved. Dr. Chie also bring up approval protocol of a at the Noone, called Sheila a nurse who coordi- P next & T meeting. Committee nated the and Infants HIV Women Pro- Dr. spoke Chie also to other gram at Worcester obstetri- Hospital. Memorial Leominster, cians at Program including The the head HIV had been one of eight the obstetrics-gynecology participate department, facilities nationwide to in the Dr. Schatz. None of NIH clinical trial of AZT and the doctors with served whom HIV, Dr. pregnant spoke experience as a clinic for Chie women with with HIV conjunction pregnancies operating with the or administering Universi- AZT. Dr. ty Center, of Massachusetts Medical an Schatz advised Dr. Chie to consult with a academic teaching hospital. high-risk Noone perinatologist Nurse at Worcester Me- Chie, discussed AZT treatment with Dr. Lesley, morial about although he did not him and told that he either specifically could consult that she recommend be trans- the Massachusetts Medical Liability Association and the Professional Foundation. Dr. Chie that Lesley’s pri- response, Lesley also told Dr. Chie called ferred. doctor, Fraser, care Dr. wanted to remain under his explained she mary care him, give Dr. Fraser birth at Leominster because was and told the situation mind, community hospital. Lesley, herself a that, up had not made her while he nurse, that all psychiatric have trained said she he would to transfer probably Memorial, prescription case for treatment was a such needed to Worcester AZT, and an line for approval. Dr. for oral IV adminis- he would need Fraser’s time, drug delivery. spoke tering during Dr. labor Around this same Chie Noone, Dr. again urged of- Chie to consult Nurse with Nurse who She further get Program to Dr. Noone at the HIV and to to serve a consultant fered either at help approved him AZT Leominster. Chie treating Lesley or to Lesley. treating to continue for a transfer. refused arrange Program went the HIV BO,Dr. the Leo- Chie called On March Memorial remaining Worcester wheth- again inquire pharmacy minster visits. Memorial is prenatal Worcester lo- The er AZT had been made available. car from cated about minutes Leo- reported it was still await- pharmacy Lesley’s Hospital minster and from home. P T ing for the from the & approval drug July her baby delivered there on She Committee.2 1995, five weeks her due date. before Dr. March Lesley’s appointment, At Lesley acknowledges that she received sat- he had to transfer Chie told her decided Program. care from isfactory the HIV HIV her to Worcester Memorial’s case at birth baby negative Her tested for HIV for Dr. Chie’s March 30 notes Program. follow-up and in tests. [pa- state: with Lesley’s chart “Discussed at AZT program AZT No UMass. tient] II. pa- Hosp. at L Plan: Transfer program 19, 1997, Lesley March filed a com- On of his UMHosp.” tient to Dr. Chie said Superior in the Massachusetts Court plaint explanation Lesley: Chie, stating Dr. that his decision against ... AZT pro- I her We don’t have told Program her to to transfer the HIV I gram Hospital.... at Leominster Memorial rather than treat her Worcester obstetrician[s], talk to told her I’d other § under 504 of rights himself violated Schatz, anybody Dr. if including and Act, with Rehabilitation the Americans but of them has experience; have none (ADA), Massachu- Act and the Disabilities looking the AZT. I experience using was Statute, Public Accommodation Mass. setts through I have no—I help. looked ch. 272 Chie re- Laws 98. Dr. Gen. my- I everything learn all the books. April action to court on moved the federal no experience using ... I have self. stipulated to parties On June AZT, using I have no confidence of and Lesley’s ADA claim. dismissal myself. pro- ... there’s a the AZT But Worcester, Noone, give support of their cross-motions in Sheila gram summary judgment remaining good about how the re- on report us some claims, present- Dr. trial AZT medi- both after the of those sult result, Dr. testimony. Lesley’s expert, convincing expert With that ed cations. Minkoff, Public served on the U.S. program. I—I sent her to AZT Howard delivery Leo- another with became available at ration for Intravenous AZT April Hospital prepa- HIV. minster task force that recom- control of an Health Service individual obstetrician.” Be- therapy pregnant mended AZT women “many cause of the components” involved statement, In his sworn Dr. treatment, HIV. in AZT and the lack of assur- administering oral and intra- Minkoff said ance that components these would during pregnancy venous AZT and deliv- place at Lesley’s Leominster time for ery “straightforward” was and did not re- labor delivery, it would have been quire “specialized knowledge beyond that “medically inappropriate” for Dr. Chie to possessed by a licensed practitioner of ob- continue treating Lesley, Dr. Heller said. In Dr. opinion, stetrics.” Minkoffs January On on cross-motions “[tjhere is no medical basis for a licensed parties, from the granted district court practitioner of obstetrics to refer an HIV- summary judgment for Dr. Chie. The positive pregnant woman to a high risk court that Lesley presented found no ... HIV-positive clinic based on status evidence that Dr. Chie’s decision to trans- brief, In its amicus alone.” the MDPH fer Lesley to Worcester Memorial’s HIV agreement states its with Dr. Minkoffs Program medically inappropriate un- conclusions.3 totality der of the circumstances. Chie, In support of Dr. Dr. Bruce Co- Hence the court found that the doctor’s hen, obstetrics, specialist high-risk decision did not constitute discrimination focused on complex combination solely on the basis of HIV status. psychiatric problems. and medical Cohen said: “To have denied such com- III. plicated high risk as Mrs. Les- Our review of the district court’s sum- ley quality the available care which the mary judgment determination is de novo. situation demanded would have un- been Equal Employment Opportunity Comm’n Heir, ethical.” Dr. Bonnie a community- Inc., (1st Amego, v. 110 F.3d obstetrician, based said that at the time Cir.1997). Dr. Chie transferred Lesley, “knowledge experience in the management of dispose We preliminaries. of some HIV-positive pregnant patients among ob- Section 504 of the Rehabilitation Act pro stetrician-gynecologists in the general vides that: (i.e., community medical outside of teach- qualified No otherwise individual with a centers) ing was limited.” Dr. Howard shall, disability ... solely by reason of Heller, physician an associate Brigham at disability, her or his be excluded from Hospital, & Women’s agreed that after in, participation be denied the bene- publication of the MDPH Advisory Clinical of, subjected fits or be to discrimination November took several months under program activity or receiving hospitals for most and obstetricians to in- Federal financial assistance.... implement stitute and AZT treatment 794(a). required “since it Thus, § coordinated effort 29 U.S.C. prevail within hospital claim, each was not under the prove must four 3. MDPH said that it "has Department determined that no tus. The has also concluded that specialized knowledge beyond possessed justification there is no medical to Lransfer a gynecologist a licensed nec- is obstetrician/ pregnant specialist woman to high or to a essary provide prenatal and obstetrical clinic, HIV-positive risk based on status HIV, pregnant care to including women with principles alone. These were as true prescribing monitoring medications to they today." March 1995 as are reduce HIV transmission from mother to fe- (1) testimony that she that the of her experts She must show demon- elements. disabled; (2) from sought that she services strates that Dr. Chie was perfectly compe- (3) that federally entity; funded she was her, implying tent to treat that the claimed qualified” to receive those ser- “otherwise pretex- medical basis for his decision was (4) vices; and that she was denied those fashion, tual. mirror Dr. Chie charac- ... “solely by reason of her dis- services terizes suit an attack on ability.” judgment, thinly veiled as dis- ability claim. argues discrimination He dispute The do not parties in- the Rehabilitation Act was never Lesley’s HIV-positive first two elements. tended to interfere with disability purposes status is a bona fide medical Abbott, Bragdon judgments Act. 524 U.S. as to how best to treat a (1998). Thus, S.Ct. 141 L.Ed.2d 540 disability. requires with a case this receipt Dr. Chie’s of Medicaid funds makes us explore extent to which the Re- federally entity purposes him a funded judicial Act contemplates habilitation scru- Lesley, F.Supp.2d of the Act. See tiny alleged judg- exercises of medical parties dispute The do the third 222-23. ment.5

element, whether was “otherwise

qualified” to receive the she services We start with the obvious: the Re issue,4 But sought. we do not address this habilitation Act does not bar a doctor from as we resolve the case based on the fourth referring a disabled elsewhere sim element. ply because the medical reasons for the patient’s referral are related to the disabil question plain-

The essential is whether nonsensical, ity. It would be and down evidence a triable as to presents tiffs issue right contrary purposes of the stat “solely she whether was denied treatment ute, “solely to read the statute’s because disability.” reason of her char- language prohibit of’ treatment transfer acterizes Chie’s decision to appropriate “solely that is because of’ a discriminatory her as act cloaked as judgment. argues patient’s disability.6 Congress exercise medical She As made recognize refusing itly person 4. We that several circuits have held treat a disabled out of Abbott, plaintiff health, that a disabled cannot be considered Bragdon v. fear for his own cf. qualified” 624, 2196, "otherwise medical treatment if 118 S.Ct. L.Ed.2d 524 U.S. 141 she would not have needed the treatment (1998); 540 nor does it otherwise involve the disability. v. absent See Charter 504, Grzan provision § "direct threat to others” of 116, Cir.1997); (7th Hosp., F.3d 104 120-21 Arline, Cty. School Bd. Nassau v. 480 cf. of S.Ct. 246, (7lh Bryant Madigan, v. 84 F.3d 249 273, 1123, 94 L.Ed.2d 307 U.S. 107 1996); Thompson, Cir. Johnson v. 971 F.2d (1st (1987); Amego, EEOC v. 110 F.3d 135 Cir.1992), denied, 1487, (10th 1493-94 rt. ce Cir.1997). plaintiff Nor is it a case in which 910, 1255, 507 U.S. 113 S.Ct. 122 L.Ed.2d claims she was denied a reasonable accom (1993); Hosp. 654 United States v. Univ. Cf., e.g., by her Davis v. modation doctor. Brook, 144, Stony S.U.N.Y. at 729 F.2d 156- Flexman, (S.D.Ohio 1999) F.Supp.2d 109 776 (2d Cir.1984). Partly because we are (clinic provide sign-language refused to inter approach, unsure of the wisdom of such an preter hearing-impaired patients). partly because we find it awkward to speak person being “qualified” in terms of a 6.Indeed, prohibition only not such would care, Duncan, v. for medical cf. Woolfolk nonsensical; be it would be unethical. As 1381, (E.D.Pa.1995), F.Supp. prefer we medi- one commentator has noted: "Ethical approach by way the case of 504's "sole decision-making take cal should into account ly by disability” prong. of reason disability-related all or not— medical factors— affecting patient's prognosis. condition and 5. We want to clear what this case is not make Thus, explic- prohibiting read ADA a medi- case is not a doctor the as about. This about legislative history plaintiff clear in the of the Amer- qualified job disabled was not Act, disability the icans with Disabilities liability). insufficient to thwart prevent physi- are intended to laws not hand, On the other courts should not “if referring cian from disabled probe so far into a referral doctor’s deci- specialized itself creates com- disability the inquire sion as to whether it was the patient’s which plications for the health correct or best decision under the cir- [referring] physician experience lacks the cumstances, or even whether it met the knowledge H.R.Rep. or to address.” No. profession. standard of care for 101-485, 2, (1990), reprinted at 106 pt. questions propriety Lest of medical 267, 389; see also Katz 1990 U.S.C.C.A.N. questions conflated with disability dis- (1st Co., City Metal 87 F.3d 31 n. crimination, it must take more than a Cir.1996) (Section 504 of the Rehabilitation negligent mere referral to constitute a interpreted substantially identically Act “is Rehabilitation Act violation. Were the ADA”). otherwise, Act effectively construed so as clear, What is not as and what is at issue impose physicians a special, disabil- case, in this is the extent to which a court duty care, ity-centric physicians would physician’s should defer to a claim that he potentially face conflicting state and fed- experience, knowledge, lacks the or other is, legal obligations. eral That to avoid prerequisites necessary to address malpractice liability, state a physician allegedly prompted medical conditions that might wish to err on the side of caution countervailing referral. Two concerns referring disability-re- with question. bear on the complications lated to a qualified better hand, simply On the one courts cannot specialist or more facility; yet advanced unquestioningly physician’s defer to a sub Act, under hypo- Rehabilitation as jective judgment as to whether his referral construed, thetically physician who course, proper. Physicians, are did so would being risk found liable just as other capable recipient discrimination. We cannot believe that federal discriminating against funds of Congress would have intended the Act to disabled, may not turn and courts a blind so doctor-patient interfere rela- eye to the that a possibility supposed exer tionship, especially when that relationship cise of judgment may mask dis thoroughly regulated states.7 criminatory or stereotypes. motives See Assoc., Hosp. Bowen v. Am. 476 U.S. Vernick, Glanz v. 756 F.Supp. 638 Cf. 106 S.Ct. (D.Mass.1991) (“A L.Ed.2d 584 strict rule of deference (1986) (Rehabilitation Act does not “envi- merely would enable doctors to offer pre- federal superintendence sion[] textual opinions up to cover dis treat- decisions.”); criminatory traditionally v. ment decisions Cook entrusted to cf. (1st Island, 17, governance”); Rhode 10 F.3d Bryant 26-27 Cir. state v. Madigan, 1993) (7th Cir.1996) subjective 246, (“The (employer’s judgment that 84 F.3d 249 in, Indeed, context, considering cal decision-maker preemption from flowing disability put factors routinely recognized from a would courts have “the historic different, patient argu- primacy disabled ... in a regulation of state of matters of worse, ably position pa- than the riondisabled Legal health.” Buckman Co. v. Plaintiffs' Comm., 341, 1012, 1017, Crossley, Diagnoses tient....” M. 531 U.S. 121 S.Ct. Of Discriminatory (2001), Medtronic,

Discrimination: (quoting Nontreatment 148 L.Ed.2d 854 Lohr, 470, 485, Infection, with HIV 93 Colum. v. Inc. 518 U.S. 116 S.Ct. of Infants 1581, (1993) (citation omitted). 2240, (1996)). L.Rev. 1655 135 L.Ed.2d 700

55 Choate, ADA a remedy does not create medi- Alexander v. attitudes.” 469 U.S. malpractice.”).8 287, cal 296, 712, 105 S.Ct. 83 L.Ed.2d 661 (1985); see, Hull, v. e.g., Howe 874 F.Supp. Avoiding giving physi both a rule (N.D.Ohio 779, 1994) (under ADA, 788-89 complete cians deference and a rule re jury could find diagnosis doctor’s that quiring inquiry a full-fledged into their plaintiff extremely had rare disorder re- diligence, we head for ground9 the middle quiring transfer pretextual, was where pa- adopt following standard. Under only reaction, tient an allergic drug Act, Rehabilitation a chal may and doctor did not mention the rare disor- lenge her doctor’s decision to refer in requesting der only the transfer but by showing elsewhere the decision to be HIV-status). Or, plaintiffs mentioned in- devoid of reasonable medical support. arguing stead of pretext, plaintiff may a however, say, This is not to that the Reha argue that her physician’s decision was Act prohibits bilitation unreasonable medi face, discriminatory on its it Rather, because rest- cal as such. point decisions of stereotypes ed on of the considering a medical disabled rather decision’s reason in than an individualized inquiry pa- ableness this context is to determine into the whether the decision was unreasonable tient’s condition-—and hence was “unrea- way discriminatory. See, that reveals it to be e.g., sonable” that sense. Sumes v. words, plaintiffs other showing Andres, (D.D.C.1996) of 9, F.Supp. 938 11-12 medical unreasonableness must be framed (issuing summary judgment against doctor larger within theory disability some of dis who refused to treat deaf example, plaintiff crimination. For may ground risk,” people “all deaf are high argue physician’s that her decision was so without making any inquiry regarding her unreasonable —in the sense of being arbi condition). specific trary capricious imply —as pretext discriminatory some mo does not come close to mak

tive, animus, fear, such as or “apathetic ing either form of showing.10 Lesley ar- expressed parallel give We have statutory concerns oth alions—the need to effect to the Aniego, er objectives keep § contexts. See 110 F.3d at 145 and the desire to 504 within need, (noting bounds.”). employ manageable in the context of ADA, ment discrimination claims under "special sensitivity danger parties 10.The district court and the have becoming super-employment court commit showing plaintiff's governed assumed that Med., tee”); Wynnev. Univ. Sch. 932 burden-shifting paradigm ap the familiar Tufts of 19, (1st 1991) (en banc) ("When F.2d 25 Cir. plied employment in Title VII discrimination judges are asked to review the substance of a Green, Douglas Corp. cases. See McDonnell v. decision, genuinely they academic ... 792, 1817, should 411 U.S. S.Ct. 36 L.Ed.2d 668 great respect faculty's profes show for the (1973); Dep't Cmty. Texas v. Bur Affairs judgment.”) (quoting Regents sional dine, 1089, Univ. U.S. 101 S.Ct. Ewing, Mich. v. 474 U.S. (1981); L.Ed.2d 207 see also Pushkin v. Re (1985)); Colo., S.Ct. 88 L.Ed.2d 523 Villanueva (10th gents Univ. F.2d 1372 Coll., (1st Wellesley Cir.1981) 930 F.2d Cir. (applying burden-shifting paradigm 1991) (courL "super-tenure should not sit case). Act But we Rehabilitation have re deciding committee” in a discrimination jected paradigm use of the in ADAreasonable tenure). claim based on denial of academic Higgins accommodation cases. v. New Bal Shoe, Inc., 252, ance Athletic 194 F.3d 264 Choate, 1999). (1st 9. v. Alexander 469 U.S. Cir. we And are far from certain Cf. 712, (1985) this, ("Any 105 S.Ct. applies 83 L.Ed.2d 661 that the model in a case such as interpretation responsive begins §of plaintiff’s [ 504 must be where the and ] case ends powerful countervailing professional judgment to two but consider- with an attack on the treat, competent transfer and the fact gues Dr. decision to he felt to that Chie’s lacking any in medi her reasonable Lesley was so that his decision not treat was suggest it pretext cal was support as pursuant inquiry made to an individualized any But claim that Dr. discrimination. by independent, confirmed knowl- and was discriminatory hide some sought Chie persons edgeable at the time—makes it by the Dr. motive is fact that Chie belied succeed in impossible Lesley to show- HIV-positive knowingly treated other Dr. ing that Chie’s decision was discrimi- likewise, patients past; in the he continued natory. to treat for some time learn after putting Dr. demon- Even aside Chie’s HIV-positive. ing she was v. See Johnson willingness to treat other strated HIV- 1487, (10th Thompson, 971 F.2d Cir. patients, positive Lesley’s insistence that 1992) (“If handicap others the same justification proffered Dr. Chie’s discrimination, do not the suffer the then transferring her sowas unreasonable ‘solely by discrimination does not result ”).11 imply “pretext” as to it was does not find handicap.’ of Nor can [the] reason claim Lesley plausibly support that Dr. trans evidence. Chie sufficient ferred basis of stereotypes her on the con points Advisory to the MDPH Clinical cerning HIV-positive her Dr. status. prevailing opin- evidence that the abruptly delivering did not assume that ion at time was that licensed ob- HIV-positive baby an was of capable administering stetrician beyond he to that capability; his came proof point, AZT. As of the same she upon a “fact-specific conclusion based expert, testimony invokes Dr. Cook, inquiry. individualized” F.3d at Minkoff, in opinion whose administra- (quoting Cty. Board School Nassau of AZT during pregnancy delivery tion Arline, 273, 287, 107 v. 480 U.S. S.Ct. require any specialized knowledge does not (1987)). Moreover, 94 L.Ed.2d 307 ordinary that of beyond an obstetrician. decision was confirmed Dr. time Abbott, Bragdon It true that v. Fraser, Lesley’s primary physician care supra, Supreme Court accorded “spe- and managed gatekeeper, care who had to weight authority” cial to the view of transfer; approve Lesley’s and the deci health public officials determining Noone, sion was also confirmed Nurse provider permissi- whether medical could suggested who from the start referral as bly HIV-positive to treat an patient, refuse perfectly acceptable option treatment provider where the feared for his available to Dr. The health. Chie.12 combination 2196; 524 U.S. at these factors —Dr. Chie’s demonstrated See 118 S.Ct. see 12182(b)(3) willingness HIV-positive patients to treat 42 U.S.C. (“Nothing also [in Thus, using possibility defendant. without does not rule out that it discrimi- model, burden-shifting against plaintiff simply by failing we du- reasonably assume nated disease, put bitante evidence for- given that the has accommodate her Alzheimer's require plaintiff distinctly ward is us to Dr. sufficient consider that suffered from more Chie’s reasons for his referral. form of the severe accommodate). disease more difficult to say every not to This is of course past equal noteworthy Lesley's context a psychia- defendant’s record It is that even opinion, advising treatment undercuts inference of discrimi trist shared Chie’s Les- particular e.g., Wagner ley pregnancy nation in case. that her "was not a case that Cf. Ctr., community hospital, Fair Acres Geriatric be treated at a F.3d should 1995) (3d (fact nursing university hospi- n. 15 Cir. home but should treated in patients admitted other Alzheimer's disease tal." judgment. A require permit physician’s physi- shall an reasoned entity ADA] disagreement prevailing cian’s mere participate an individual to benefit or cannot as opinion medical thus serve from the ... accommodations enti- of such grounds for an inference of discrimination. ty where individual a poses such direct Only physician’s judgment where the is others.”). safety threat to the health or of entirely any without reasonable medical However, context, even in that the Court an may basis such inference be warrant- emphasized provider’s that a deviation ed.13 prevailing from the medical consensus long it

entitled deference so as rests on prevailing evidence of basis,” id., a a “credible scientific standard opinion does not suffice to show that Dr. substantially adopted similar to the one Chie’s decision lacked reasonable med- ical proffered merely basis. The evidence here. goes proving toward that as a But we importantly, more do not matter, general a licensed obstetrician in Brag- believe that the Court’s remarks competent would have been to administer carry present don over to the context. At AZT HIV-positive patient. to an Howev- Bragdon was whether there exist issue er, demonstrates, Bragdon as itself state- a ed “direct threat” to the health others. should ments prevailing opinion may be The “direct threat” defense broadly sweep case- not be read so by em claimed in all sorts of contexts — rug. under the See 524 specific factors educators, Brag- ployers, and so on. (statement 651-52, at 118 S.Ct. 2196 U.S. don, simply made clear that the Court precautions that certain “should advising to use physicians special privilege have no reduce the risk of disease transmission impenetrable the defense as an shield. rule out environment” did not the dental (“[pe 118 S.Ct. See U.S. precautions that additional possibility sim special titioner receives no deference fur- could reduce risk sought defendant profession he is a health care ply because ther). may generally have While been al.”). contrast, By here what is at issue is a obstetri- at the time that licensed true health of the health of others but the not administer AZT to HIV- cian could herself. That is matter patient, nothing said positive phy suggests entrusted to the care of her that an uniquely MDPH or Dr. Minkoff protect profession In order to referral such sician. obstetrician’s inherently unreason- in administer have been autonomy physician al would care, able.14 necessary it is to defer ing merely abstract state in the why this case. Both reason deference

13. There is second appropriate capable per- in a case provider is more are licensed obstetricians Bragdon Bragdon. like like this than in case necessary forming types to admin- of tasks judgment provider’s about risks concerned HIV-positive pregnant women ister AZT to posed health —a matter in which to his own for an no medical basis and that there is may provider’s admitted self-interest HIV-positive pregnant refer an obstetrician to professional judgment. expected color his HIV-positive alone. status woman based contrast, judgment concerned By Chie's general statements Even Dr. Minkoff’s if provider but what not what was best for the pa- HIV-positive obstetric about the care of patient. best for the commentary about Les- were taken as a tients case, given does not suffice such evidence lie’s Indeed, the MDPH’s amicus brief neither the case- take into account that it does not testimony specifically con- nor Dr. Minkoff's Chie, that, according to Dr. specific factors referral was unreason- that Dr. Chie's cludes Lesley. to transfer motivated his decision totality given the of the circumstances able patient disagreed. on the As to such Rather, depends disagree- reasonableness ments, of cir- circumstances, a number when they and here litigation, warrant state judgment Dr. Chie’s supported malpractice law, medical cumstances the not Rehabili- First, de- Lesley Act, elsewhere. transfer provides to tation appropriate the law of MDPH, intra- by the spite its endorsement resort. That possibly could not during AZT de- of administration venous on a malpractice succeed claim on development a recent livery was still the facts of speaks again this case reasonably Dr. Chie with which obstetrics danger of being the Rehabilitation Act unfamiliar; testified as Nurse Noone felt as abused an frame for such alternative changing pret- were “Things deposition, claims.16 days.... It was in those back ty quickly HIV scope We recognize very all point, this was really —at ensuring Second, of epidemic importance had reason to new....” infect Hospital would not those equal that Leominster access to health care for worry equipped prepared Thus, adequately ed with the virus. reiterate be we in time for deliv- liability AZT administer escape potential a doctor cannot date of Dr. March ery; as of merely under the Rehabilitation Act referral, Lesley was at 20 when Chie’s exercise casting refusal treat as an significant and at risk gestation weeks must judgment: judgment of medical such delivery, yet AZT had to be premature the reasoned result of an individualized pharmacy to Leominster’s available made however, time, At the same inquiry. drug administering protocol and a Act into pressed Rehabilitation cannot be Third, place. Worces- yet put to be had for disputes as vehicle over service by; was close and as one of ter Memorial of debatable treatment decisions. propriety nationally participate eight clinics is all propriety And the such a decision the MDPH Clinical Adviso- study on which find to be at issue in this case. we based, obviously could be trusted ry was short, jury In no rational could conclude high level of care.15 provide evidence that Dr. on this Chie’s referral circumstances, if Dr. even these Lesley to Worcester Memorial constituted from an overa- decision stemmed Chie’s “solely by of treatment reason denial caution, by no means can the bundance of disability.” Summary judgment thought to lack reasonable decision be appropriate. therefore simply The decision was basis. appellees. Costs to judgment which reasoned medical Affirmed. Bloomsburg F.Supp.2d Hosp., 60 dispute to which parties the extent The 15. (M.D.Pa.1999) (doctor’s complications, specialist Lesley's related such non-HIV referral to posed the risk of fetal heart abnormalities incompetent he has reason to know is whom lithium, anything to do with her use of malpractice liabili- to treat is basis for and, so, if whether Dr. Chie's referral decision ty)- justified. on these factors was his reliance case, primary it is clear that the Whatever the may not suc 17.For the same reasons for Dr. Chie’s decisions are the ones reasons under the Massachu ceed on her state claim text, they cited in the are sufficient statute, Mass. setts Public Accommodation was not without convince us that his decision Interpretation Gen. Laws ch. medical basis. goes disability "hand state laws like this one interpretation of the federal in hand” with Typically, negligent referral claims arise Bragdon, F.3d disability laws. Abbott unqualified where the is referred to Cir.1997), (1st See, part, 'din rev'd 937 n. 1 provider. e.g., Tranor v. Estate aff LIPEZ, treat, Judge, concurring. sion not Circuit unless the absence of permits reasonable medical evidence with the result reached the I concur motive, discriminatory inference of some I majority because think that Dr. Chie’s animus, fear, such as or stereotyping of that to trans- evidence shows his decision the disabled. Lesley medically reasonable. fer However, rule, not in may good majori- we do have to decide this This be a and the case, does, majority that plaintiff ty presents arguments as the the for it well. But Lesley like must show medical unreason- there are also reasons for caution. There larger theory ableness “within some is nothing language § dis- the 504 discrimination,” animus, ability such as dictates or even suggests that an action- fear, attitudes, apathetic stereotyping, participation or able exclusion from in a fed- § possible conflict between 504 eral or an program avoid actionable denial of may of the Rehabilitation Act and state medical federal apart benefits not occur from law, malpractice showing or undue intrusion on the of discrimination. See 29 U.S.C. (“No § doctor-patient relationship. qualified Given the otherwise handi- shall, nature of emerging disability capped law and the individual ... solely by rea- involved, high only stakes we should de- son of her disability, or his be excluded in, important cide those difficult and from participation issues be denied the of, subjected when we must. benefits or be to discrimina- any program activity tion under or receiv- notes, majority “Lesley argues As assistance.”). ing Federal financial If a that Dr. decision to transfer her Chie’s doctor’s decision not to treat the medical lacking was so reasonable medical patient’s disability, effects of a and trans- support suggest pretext as to it was elsewhere, patient only fer the is based discrimination.” The premise judgment, an unreasonable it can argument wrong is there simply because is be argued that the denial of services to the support reasonable medical for Dr. Chie’s patient “solely by reason of her or his majority decision. The demonstrates this disability.” Id. point convincingly, for example by pointing Moreover, to such evidence as Hospital’s although majori- Leominster I share the protocol ty’s lack of an AZT at the time concern about undue interference with was transferred. on the doctor-patient relationship through Since loses Re- alone, claims, ease-specific basis there is no Act I question habilitation whether finding pretext. basis for Yet majority Lesley’s pose claims such as that threat in goes general point troubling on make the that a one of its most forms—the “bat- § plaintiff always experts” requiring like must tle of at trial a factfin- that a show doctor’s decision not to treat der to choose between a doctor’s and a way patient’s competing right her “was unreasonable in a that re- versions of the Abbott, discriminatory.” Bragdon veals it to be I under- treatment. In 524 U.S. 624, 2196, stand this rule to mean that a disabled 141 L.Ed.2d 540 S.Ct. (1998), Supreme has no recourse under 504 when said that Court a doctor decides to health public transfer the views authorities have provider explicit “special weight authority” assessing another health-care after actions. consideration the medical effects of his the reasonableness of doctor’s However, disability, or her even if there is no reason- Id. at 118 S.Ct. 2196. support pro- able medical evidence to the deei- Court also said that health care “[a] (1998). part, 524 U.S. S.Ct. L.Ed.2d 540 prevailing with the But we disagrees prema- who should not establish rules fessional may by citing careful, consensus rebut turely. case-specif- We know that from deviating scientific basis for credible judicial inquiry already ic helped has words, accepted norm.” Id. other resolve difficult denial of treatment claims. competing when views exist side side “Brag- One commentator has noted that summary judgment, plaintiffs ex- pre- don v. Abbott and the involving cases representing prevailing practice perts textual referrals ADA illustrate how the experts representing and the defendant’s powerful ability can act as a limit on view, contrary but reasonable the court providers pro- of health care to refuse to may grant summary judgment still to the vide treatment to individuals with HIV deciding right. without who is defendant message infection” and “send a clear view, my Lesley’s Min- evidence-—Dr. providers medical and dental that refusals testimony, the MDPH Advi- koffs Clinical illegitimate illegal.” to treat are sory, the U.S. Public Health Service Mary Crossley, Becoming Visible: The guidelines represents “prevailing — Impact ADA’s on Health Care Persons licensed medical consensus” ob- Disabilities, 51, 52 Ala. L.Rev. AZT. qualified stetrician is to administer (2000). may may or not There simi- However, expert testimony Id. offered lar a limit ability need for on the of health justifies summary Dr. on behalf of providers patients care to refer disabled judgment by providing a “credible scienti- elsewhere because of an unreasonable fic for Dr. from the basis” Chie’s deviation judgment about the medical ef- norm. accepted Id. disability, pre- fects of the irrespective majority I with the Although agree text.1 This is not the case to decide that Abbott, Bragdon v. case is unlike issue. 2196, U.S. 118 S.Ct. L.Ed.2d (1998), because it involves a doctor’s potential concern about a threat

health of his than to his rather own

health, this is a denial of case. still services What is at issue here is not Chie’s STATES, Appellee, UNITED improper Lesley— medical treatment of malpractice the standard bad medicine claim—but decision not to treat her SAAVEDRA, Defendant, Mario and instead to send her to another health- Appellant. provider. care I Because see the case No. 99-1631.

this Iway, majority’s do not share the concern that we must use this ease to Appeals, United States Court of announce a rule that will bar the federali- First Circuit. zation of law malpractice state Heard March 2001.

undue doctor-patient intrusion rela- May Decided tionship aegis under the of the Rehabilita- tion Act. sure,

To be important rules are es-

tablishing parameters litigation. patients ety Crossley, supra, Studies show that with HIV some- of reasons. See n. get they studies). times do not care need because (citing doctors are reluctant to treat them for a vari-

Case Details

Case Name: Lesley v. Hee Man Chie

Court Name: Court of Appeals for the First Circuit

Date Published: May 22, 2001

Citation: 250 F.3d 47

Docket Number: 00-1254

Court Abbreviation: 1st Cir.