Wisconsin Doctor Illegally Handled HIV Test Results and Then Refused to Treat HIV-Positive Patient, Lambda Legal Says In Complaint Filed Today
(Milwaukee, Tuesday, October 5, 2004) - Saying that a Wisconsin doctor illegally discriminated against his patient by refusing to perform surgery when he learned the man has HIV, Lambda Legal filed a lawsuit in state court today arguing the doctor violated multiple federal and state laws. Lambda Legal also argues that the doctor failed to offer proper HIV counseling services to the patient when he told him he tested HIV-positive, which is mandated by state law.
Lambda Legal represents Steve Spera, a 54-year-old resident of Wisconsin who sought relief for severe and debilitating back pain from Milwaukee orthopedist James Cain. For nearly two years, Spera received care from Dr. Cain with a series of pain management procedures but with little success. Dr. Cain finally recommended spinal fusion surgery, and Spera submitted to a blood test to enter the hospital as a patient for surgery. The blood test showed that Spera has HIV, and Dr. Cain informed Spera of his status and said he would not perform the surgery. Spera had previously tested negative for HIV.
"Doctors have an ethical and legal obligation to treat people with HIV. This doctor didn't just treat our client insensitively - he refused to treat him at all." said Jonathan Givner, AIDS Project Staff Attorney for Lambda Legal. "Steve suddenly learned that he has HIV, and he was given no resources or referrals to deal with that life-altering news. Instead, within five minutes of learning he has HIV, he was discriminated against by his doctor even though there's no evidence at all that he posed a threat to himself or the doctor."
After learning that he has HIV - and facing discrimination because of it - Spera became clinically depressed and admitted himself into a hospital for treatment. When Spera left the hospital HIV specialists reviewed his medical records and concluded that it was safe for him to proceed with spinal fusion surgery. But Dr. Cain still refused to perform the operation. In today's filing, Lambda Legal argues that Dr. Cain violated the federal Rehabilitation Act and the Americans with Disabilities Act, as well as state laws that prohibit discriminatory treatment.
In early 2003, Spera filed an administrated complaint with the U.S. Department of Health and Human Services' Office for Civil Rights, alleging disability discrimination in violation of the Rehabilitation Act. In August, Spera filed a second administrative complaint with Wisconsin's human rights agency after learning that Dr. Cain does not order HIV tests for all of his patients before surgery. The complaint alleged that Dr. Cain discriminated against Spera on the basis of his disability and sexual orientation (since his blood was subjected to an HIV test based on Dr. Cain's assumption that he was gay). Dr. Cain reached an agreement with the Office for Civil Rights, ending the federal investigation when he agreed to adopt a non-discrimination policy for his office, consult with infectious disease specialists as appropriate and attend training programs regarding HIV. The lawsuit filed today by Lambda Legal seeks a court order to prevent Dr. Cain from discriminating in the future and seeks monetary damages for Spera.
After being turned down twice by Dr. Cain, Spera finally did have the necessary spinal fusion surgery and lives today with less pain because of it.
"This case is so serious and egregious that we have to make sure these policies have teeth, so nobody else faces this kind of physical and emotional suffering," Givner said. "A court order will ensure that Dr. Cain never discriminates this way again, and it will also strengthen the legal precedent to keep other doctors in Wisconsin and elsewhere from mishandling patients this way."
The case is Spera v. Orthopaedic Associates of Milwaukee, et. al. In addition to Givner, Alphonso David, Staff Attorney in Lambda Legal's New York headquarters, and Heather Sawyer, Senior Counsel in Lambda Legal's Midwestern Regional Office, are handling the case for Lambda Legal. Paul Milakovich of AIDS Resource Center of Wisconsin and Peter Koneazney of Legal Aid Society of Milwaukee are co-counsel.
About Lambda Legal's AIDS Project Lambda Legal was founded in 1973 to advance the civil rights of lesbian, gay, bisexual and transgendered people, and began working on behalf of people with HIV and AIDS at the onset of the epidemic in the 1980s. Lambda Legal litigated the first AIDS discrimination case in the nation in 1983, and later successfully forced hospitals to treat people with HIV and pushed prescription drug companies to lower the cost of HIV and AIDS treatments. Lambda Legal's AIDS Project has won critical victories on behalf of people with HIV and AIDS to be treated equally and with dignity in employment, medical services, public accommodations, parenting and other areas of life. Earlier this year, Lambda Legal announced a record $600,000 settlement between its client, Matthew Cusick, and Cirque du Soleil that ended an HIV discrimination complaint filed on behalf of Cusick. Cusick was fired last year because he has HIV. The settlement ended a nationwide campaign and a federal disability complaint filed by Lambda Legal.