Appeals Court rules dentist violated federal law

By Carolyn Thompson, Associated Press,03/07/97; 02:18

BOSTON (AP) - Civil rights activists have seized on a federal appeals court ruling against a Maine dentist who refused to treat an HIV-positive patient in his office, calling it a "building block" for future lawsuits.

The 1st Circuit U.S. Court of Appeals is the highest court yet to hold that people with HIV are subject to protection under the Americans with Disabilities Act, even if they show no AIDS symptoms.

"This is an issue that will be litigated in the future and we now have a good building block," Michael Adams, counsel for the American Civil Liberties Union's AIDS Project, said Thursday.

But at least one person said the court's finding on Wednesday was based more by emotion than medical fact.

"We're dealing with a world of fanaticism," said Dr. Randon Bragdon, the Bangor dentist who lost the case. "The judges have had blinders put on them."

Bragdon said his health concerns were based on medical data he was not given adequate time to present to the court.

"It's a very difficult route to go because it's a complex issue," he said of the court action. "We're dealing with judges who don't have experience in this training."

The three-judge panel upheld a lower court ruling that Bragdon had violated the federal disabilities act when he refused to fill a cavity for Sidney Abbott in his office in September 1994.

Citing a longstanding policy of not treating patients with infectious diseases in his office, Bragdon had offered instead to fill the patient's cavity in a hospital operating room, where instead of $35, the procedure would have cost $185.

The appeals court rejected Bragdon's argument that treating Abbott in his office would have posed a significant risk to his health or safety. Such a risk is considered a legitimate defense under the disabilities act.

"Dr. Bragdon does not cite a single confirmed instance of HIV transmission to a dentist," Judge Bruce M. Selya wrote in the ruling.

While dentists have settled similar lawsuits in Texas and New Orleans, the Maine case was the first to be challenged on appeal.

Authorities said the ruling established two legal precedents:

-That an HIV-infected person who is not showing symptoms of AIDS is protected under the disabilities act, just like someone who has AIDS.

-That a dentist's fear of potential HIV infection is not based on scientific evidence and therefore not a basis for exemption from the act's discrimination provisions.

"If (Bragdon) had won, that basically would have allowed anyone in the health care field to refuse to treat anyone with HIV," said attorney David Webbert, who represented Abbott.

"It essentially would shut out essential health care services for the million or so Americans with HIV," he said.

Abbott, reached by phone, declined to comment Thursday.

The American Dental Association issued a statement saying it had not seen the ruling and could not comment specifically on Bragdon's case.

But "a decision not to treat a patient based solely on HIV or AIDS status would be unethical," the statement said.

Bragdon had said he lacked confidence in the precautions recommended by the Centers for Disease Control in treating infected patients. Those precautions include wearing gloves, masks and eye protection, and sterilizing and carefully handling sharp instruments.

Bragdon's attorney, John McCarthy, said he was considering either asking the full appeals court to review the decision, or appealing it to the U.S. Supreme Court.

The case was brought by the Boston-based Gay and Lesbian Advocates and Defenders (GLAD). The public health departments of Maine, Massachusetts and Rhode Island filed briefs asking the appeals court to uphold the lower court ruling, and the U.S. Department of Justice's Civil Rights Division intervened in support of Abbott.