Published June, 2018

United States v. Asare, 2017 U.S. Dist. LEXIS 209392 (S.D.N.Y., December 20, 2017)

In a case of first impression, a federal court found that a plastic surgeon violated the Americans With Disabilities Act (ADA) and the New York City Human Rights Law (HRL) by refusing care to persons living with HIV (PLHIV). Defendants, a plastic surgeon, Emmanuel Asare, M.D., and his medical practice, “Advanced Cosmetic Surgery,” denied services to PLHIV for elective cosmetic surgery - breast reduction surgery for male breast enlargement - based on a blanket refusal to treat HIV positive patients taking antiretrovirals. The doctor said he didn’t “feel comfortable treating” such patients.  The defendants also claimed that the denials were necessary to prevent unsafe interactions between the drugs and the sedative for surgery.  The plaintiffs, the United States and one patient at the medical practice, sought a ruling (summary judgment) by the court that such actions were in violation of the law.  The district court, relying on the Supreme Court case School Board of Nassau County v. Arline, 480 U.S. 273 (1980), held for the plaintiffs, ruling that under the ADA and HRL, patients living with HIV were discriminated against by these blanket denials of care, without an individual assessment of possible unsafe drug interactions for each patient. 

The ADA prohibits discrimination on the basis of disability in two ways relevant in this case: discrimination by the application of eligibility that automatically eliminates any class of individuals with a disability unless such criteria are necessary for reasons of safety of the individuals (which is the responsibility of the defendants to demonstrate), or discrimination by a failure to make reasonable modifications in their practices when such modifications are necessary, unless the business or person can show that such modifications would fundamentally alter the nature of the goods or service provided.  In this case, since discrimination occurred as result of the blanket refusal, the court did not have to address the second, “reasonable modification,” standard.  This is an important decision for PLHIV and others with protected disabilities – affirming that under the ADA and HRL medical care cannot be denied based on an automatic refusal to provide individuals with disabilities taking certain medications.