October 1995

Workplace Labor Update - HIV-Positive Surgeon Fired: No ADA Violation – October 1995

3 min

In a recent Americans with Disabilities Act (ADA) decision, the federal appeals court with jurisdiction over Maryland ruled that a hospital permissibly fired an HIV-positive surgeon because his condition posed a significant risk to patients that could not be eliminated by reasonable accommodation. Doe v. University of Maryland Medical Sys., 50 F.3d 1261 (4th Cir. 1995).

Dr. Doe was a third year neurosurgical resident at the University of Maryland Medical System Corporation, who apparently contracted HIV through a needle stick while treating a patient. After carefully considering the risks associated with Dr. Doe continuing his surgical residency and studying the possible accommodations that could be made, the Hospital permanently suspended him from surgical practice, concluding that the health risks posed were too great. The Hospital offered Dr. Doe alternative residencies in non-surgical fields, which he rejected. Because he refused any alternative assignment, he was fired.

Dr. Doe brought a lawsuit, claiming that the Hospital discriminated against him based upon his disability. The trial court rejected his claims, and he appealed.

The Hospital argued that although Dr. Doe was an individual with a disability, its decision to fire him was not discriminatory. The Hospital relied upon an ADA provision that an individual is not otherwise qualified if he poses a “significant risk” to the health or safety of others by virtue of his disability that cannot be eliminated by reasonable accommodation. Dr. Doe argued that he was qualified to perform surgery because the possibility of HIV transmission to a patient was so remote as to render the risk insignificant.

The Court rejected Dr. Doe’s argument. Although there were no documented cases of HIV transmission from surgeon to patient, said the court, such transmission was clearly possible and could never be eliminated through reasonable accommodation. Thus, even if Dr. Doe took extra precautions (such as wearing two pairs of gloves, making stitches with only one hand, and using blunt-tipped needles) some measure of risk would always exist because of the type of surgical activities in which he was engaged. The court, therefore, concluded that Dr. Doe was not an otherwise qualified individual with a disability, and was properly removed from his job.

The Doe case involves a unique situation where the risk of HIV transmission was significant because Dr. Doe was performing evasive surgery. In most cases, however, the risk of transmission of HIV or AIDS in the workplace is not significant. Employers should exercise extreme caution and consult with competent employment counsel before reaching a conclusion that an employee’s disability poses a “significant risk” to health or safety of others that cannot be reasonably accommodated.