Published February, 1998

Mauro v. Borgess Medical Center, 137 F.3d 398 (6th Cir. 1998)

This case concerns an HIV-positive surgical technician, Mauro, who was told by his employer, Borgess Medical Center ("Borgess") that he could not continue as a surgical technician because of his HIV status. Mauro brought claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The Sixth Circuit opinion assumes without discussing that Mauro is disabled within the meaning of the two statutes. However, it affirms the district court's granting summary judgment dismissing the claim, holding that, because of Mauro's HIV status, he could not continue as a surgical technician without posing a significant risk to patients. The court bases its holding in large part on its determination that Mauro's duties would involve him placing his hand upon and into a surgical incision, the fact that Mauro had sustained minor cuts and needle sticks in the past, and "the uncontradicted fact that a wound causing an HIV-infected surgical technician to bleed while in the body cavity could have catastrophic results and near certainty of death."

The lengthy dissent points out several weaknesses in the holding and, by extension, similar holdings. Judge Boggs first notes that summary judgment is not appropriate unless reasonable minds could not disagree about whether Mauro posed a significant risk. Judge Boggs criticizes the district court's holding that essentially stated that, because HIV is such a catastrophic disease, any risk constituted a significant risk. As Judge Boggs notes, this logic essentially negates the Supreme Court's instruction in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) to consider probability of transmission when determining whether something is a significant risk, as well as the EEOC Guidelines and the court's own statement that courts must determine probability, not possibility, of transmission. Judge Boggs then cites several factors demonstrating that reasonable minds could disagree about whether there was a high enough probability of transmission for Mauro to constitute a significant risk: (1) the risk was somewhat smaller than .0024% to .00024% (the risks for surgeons, who have more contact in the body cavity and wounds), and reasonable people routinely submit to non-essential medical care and non-medical activities which have greater risk of causing grave injuries; (2) assessing risk depends on an individual inquiry into the risk of Mauro transmitting HIV to a patient, not merely the risk of any surgical technician with HIV transmitting HIV to a patient, and thus the assessment must rely on more facts about Mauro than the court had considered, such as his viral load, his technical skills, and whether he was on antiretroviral medications; (3) there was a legitimate question as to how often and to what degree, if at all, Mauro was actually required to put his hands into a patient's body cavity and whether this could be deemed significantly risk; (4) antiretroviral medication after exposure can significantly reduce the rate of infection; (5) universal safety precautions significantly reduce the risk of exposure to HIV; and (6) the court was incorrect in concluding that risk of HIV transmission is equivalent to risk of death, given new treatments. Judge Boggs also argues that the court erred in its interpretations of Center for Disease Control Guidelines ("CDC Guidelines") regarding the participation of HIV-positive health care workers in surgery. The 1991 Guidelines—which advocates argue are too restrictive in light of more recent medical knowledge—state that HIV-positive medical workers can perform invasive procedures without restriction except for a few procedures that it has labeled "exposure-prone." For Mauro's work as a surgical technician to be considered exposure-prone, virtually any procedure any surgeon performs must be considered exposure prone, which is clearly contrary to the CDC Guidelines. Thus, Judge Boggs concludes, the court erred in determining that the CDC Guidelines supported the determination that Mauro was a significant risk.

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