U.S. Department of Health and Human Services, Office for Civil Rights, Texas Orthopedic Surgeon Letter of Finding (2009)

The Office for Civil Rights (OCR) issued this letter to an orthopedic surgeon in Texas who refused to perform knee surgery on an HIV-positive patient, finding that the surgeon had violated Section 504 of the Rehabilitation Act. The patient required surgery to repair a torn ligament in his knee. The surgeon refused to perform the surgery because it involved splattering of blood and bone fragments, which the surgeon concluded would expose him and other staff to HIV infection. The patient filed a complaint with the regional OCR office, which initially found that the surgeon had not violated the Section 504. The original finding was based on the opinion of the regional health advisor, who determined that the surgeon had exercised reasonable medical judgment when he referred the patient elsewhere for the surgery. The patient appealed to OCR headquarters, which conducted a review and concluded that the regional office relied on an incorrect legal standard by basing its decision on the surgeon's "reasonable medical judgment" as opposed to a "significant risk" posed by the patient. On reconsideration, the regional office consulted with a medical epidemiologist from the U.S. Centers for Disease Control and Prevention (CDC), who concluded, after consultation with a veteran orthopedic surgeon, that the patient did not pose a significant risk to the health of others in the operating room.

OCR further found that even if performing this particular surgery on this particular patient did pose a significant risk, the surgeon and others in the operating room could implement modifications to the procedure protocol, including the use of fluid-resistant gowns, gloves, and goggles, that would eliminate or substantially reduce the risk of HIV transmission. Accordingly, OCR found that the surgeon violated Section 504 of the Rehabilitation Act and provided the surgeon with an opportunity to implement voluntary corrective action.

OCR and the surgeon entered into a settlement agreement, which can be downloaded here.