Bragdon v. Abbott
IN THE SUPREME COURT OF THE UNITED STATES October Term, 1997
RANDON BRAGDON, D.M.D.,
Petitioner,
v.
SIDNEY ABBOTT, ET AL.
,Respondents.
On Writ of Certiorari to the United States Court of Appeals For the First Circuit
Brief of Infectious Diseases Society of America; National Alliance of State and Territorial AIDS Directors; Association of State and Territorial Dental Directors; American Association of Dental Schools; Council of State and Territorial Epidemiologists; American Nurses Association; Association of Nurses in AIDS Care; National Association of Public Hospitals and Health Systems; American Public Health Association; Association of Reproductive Health Professionals; John G. Bartlett, M.D.; James W. Curran, M.D., M.P.H.; John C. Fletcher, Ph.D., M. Div.; June E. Osborn, M.D.; Merle A. Sande, M.D.; Brian Wispelwey, M.S.,M.D. as Amici Curiae
In Support of Respondent
Catherine A. Hanssens*
Heather C. Sawyer
Beatrice Dohrn
Lambda Legal Defense and Education Fund, Inc.
120 Wall Street, Suite 1500
New York, NY 10005-3904
212-809-8585
*Counsel of Record
Daniel Bruner
Elizabeth A. Seaton
Laura M. Flegel
Whitman-Walker Clinic Legal Services Department
1407 S Street, N.W.
Washington, DC 20009
(202) 797-3527
TABLE OF CONTENTS
Table of Authorities Interest of the Amicus Curiae Summary of Argument Argument
I. From the Onset of Infection, HIV Is a Serious Medical Impairment. II. From the Onset of Infection, HIV Substantially Limits a Range of Central Activities in the Lives of Infected Individuals.A. HIV Infection Substantially Interferes With The Ability to Care for Oneself. B. HIV Infection Substantially Limits Human Intimacy, Sexual Activity, Procreation and Parenting.III. A Ruling That Asymptomatic HIV Infected Persons Are Not Protected Under The ADA Would Undermine Public Health Goals Imbedded in The Act, by Discouraging Asymptomatic Persons From Being Tested, Obtaining Risk-reduction Counseling, And Obtaining Essential Medical Treatment. IV. The Risk of HIV Infection Through Dental or Medical Care Is Negligible And Does Not Justify a Refusal to Treat a Patient With HIV Disease. V. The ADA Does Not Contemplate Judicial Deference to a Health Care Provider's Personal Opinion, Unsubstantiated by Objective Evidence, That an HIV-positive Patient Is Unsafe to Treat.
CONCLUSION APPENDIX A
TABLE OF AUTHORITIES
CASES Abbott v. Bragdon, 107 F.3d 934, 945 (1st Cir. 1997) Glanz v. Vernick, 756 F.Supp. 632 (D.Mass. 1991) Howe v. Hull, 873 F.Supp 72 (N.D. Ohio 1994) School Board of Nassau County v. Arline, 480 U.S. 273 (1987) Sumes v. Andres, 938 F.Supp. 9 (D.D.C. 1996)
STATUTES AND REGULATIONS 28 C.F.R. § 36.208(c) (1997) 42 U.S.C. § 12102(2) (1996) 42 U.S.C. § 12182 (b)(3) (1996) 29 C.F.R. § 1910.1030(d) (1997) Conn. Gen. Stat. § 19a-582(d) (1997) Md. Regs. Code tit. 10, § 52.08.04 (1997) N.Y. Pub. Health § 2781(1) (Consol. 1997)
OTHER AUTHORITIES The National AIDS Strategy (Office of National AIDS Policy, Washington, D.C.), 1997
AIDS & Dentistry, A Discussion Leader's Guide,(Dental Steering Committee, AIDS Education and Training Center for Southern CA, Los Angeles, California)(1991)
American Medical Association, Prevention and Control of Acquired Immunodeficiency Syndrome: An Interim Report, 258 JAMA 2097 (1987)
Ann J. Melvin and Lisa M. Frankel, Pediatric HIV Disease: New Developments in Treatment and Prevention, in AIDS Clinical Review 1997/1998 (Paul Volberding & Mark A. Jacobson eds., 1998)
Barbara F. Gooch et al., Percutaneous Exposures to HIV-Infected Blood Among Dental Workers Enrolled in the CDC Needlestick Study, 126 J. Am. Dent. Ass'n 1237 (1997)
Betty W. Levin et al., Treatment Choices for Infants in the Neonatal Intensive Care Unit at Risk for AIDS, 265 J.A.M.A. 2976 (1991)
C. Lewis & M.D. Montgomery, Primary Care Physicians' Refusal to Care for Patients Infected with HIV, 156 Western J. Med. 36 (1992)
CDC, 1993 Revised Classification System for HIV Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents and Adults, 41 MMWR RR-17 (1992)
CDC, Occupational Exposure to HIV, Information for Health-Care Workers (visited January 25, 1998) CDC, Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 MMWR 2S (1987)
CDC, Recommended Infection-Control Practices for Dentistry, 42 MMWR RR-8 (1993)
Charles E. Barr, Practical Considerations in the Treatment of the HIV-Infected Patient, 38 Dental Clinics of North America 404 (1994)
Chris H. Miller, Infection Control, 40 Dental Clinics of North America (1996)
Code of Medical Ethics (American Medical Association, Chicago, Illinois), 1996-1997
Costs High for Failure to Get Treatment for PCP - Pneumocystis Carinii Pneumonia, AIDS Weekly (June 12, 1995)
Daniel V. Landers & Maureen T. Shannon, Management of Pregnant Women With HIV Infection, in The Medical Management of AIDS (5th ed.)
Department of Health and Human Services, National Institutes of Health, Report of the NIH Panel to Define Principles of Therapy of HIV Infection (1997) passim
Eric S. Solomon, et al., Issues in the Dental Care Management of Patients with Bloodborne Infectious Diseases: An Opinion Survey of Dental School Seniors, 55 J. Dental Educ. 594 (1991)
Ethical Issues Involved in the Growing AIDS Crisis (Council on Ethical and Judicial Affairs of the American Medical Association, Chicago, Illinois), Sept. 1988
Facts About AIDS for the Dental Team (Council on Dental Therapeutics, American Dental Association, Chicago, Illinois), October 1988
Ferdinand Christian, Jr. et al., Open-Heart Surgery in an HIV-Positive Patient, 10 AIDS Patient Care and STDs 210 (1996)
H.R. Rep. No. 101-485, pt. 2, at 31 (1990), reprinted in 1990 U.S.C.C.A.N. 303
In Brief...HIV Babies, 10 AIDS Policy & Law 12 (1995)
Institute of Medicine, National Academy of Sciences, Confronting AIDS: Directions for Public Health, Health Care, and Research: Update (1988)
John G. Bartlett, Medical Management of HIV Infection (1997) passim
Laura A. Worth and Jeffrey H. Burack, Outpatient Management of HIV Infection, in The AIDS Knowledge Base (2nd ed. 1994).
Lawrence Gostin et al., National HIV Case Reporting for the United States A Defining Moment in the History of the Epidemic, 337 N. Engl. J. Med. 1162 (1997)
Lisa Capaldini, HIV Disease: Psychosocial Issues and Psychiatric Complications, in The Medical Management of AIDS (Merle A. Sande & Paul Volberding eds. 4th ed.)
Lynda S. Doll & Beth A. Dillon, Counseling Persons Seropositive for Human Immunodeficiency Virus Infection and Their Families, in AIDS: Etiology, Diagnosis, Treatment and Prevention (Vincent T. DeVita et al. eds., 4th ed. 1997) passim
Margaret A. Fischl, An Introduction to the Clinical Spectrum of AIDS, in Textbook of AIDS Medicine (Samuel Broder et al. eds., 1994)
Mauro A. Montoya, If I Tell You, Will You Treat Me?, 27 J. Marshall L. Rev. 363 (1994)
Michael Clement & Harry Hollander, Initial Evaluation of and Health Care Maintenance for the HIV-Infected Adult, in The Medical Management of AIDS (Merle A. Sande & Paul A. Volberding eds., 4th ed. 1995)
Michael Glick, Intraoral Manifestations Associated With HIV Disease, in Dental Management of Patients with HIV (Michael Glick ed., 1994)
Michael S. Saag, Clinical Spectrum of Human Immunodeficiency Virus Diseases, in AIDS: Etiology, Diagnosis, Treatment and Prevention (Vincent T. DeVita et al. eds., 4th ed. 1997)
N.M. Flynn et al., Absence of Antibody Among Dental Professionals Exposed to Infected Patients, 146 West. J. Med. 439 (1987)
Paul A. Volberding, How to Tell Patients They Have HIV Disease, in The AIDS Knowledge Base (P.T. Cohen et al., eds., 2nd ed. 1994)
Paul A. Volberding, Protease Inhibitors Vindicated, 350 Lancet SIII 10 (1997)
Principles of Medical Ethics (American Medical Association, Chicago, Illinois), 1955.
Regular Dental Care Can Have Psychological and Physical Benefits, AIDS Alert (Nov., 1993)
Robert S. Klein et al., Low Occupational Risk of Human Immunodeficiency Virus Infection Among Dental Professionals, 318 N.Eng.J.Med. 86 (1988)
Robert Steinbrook, Battling HIV on Many Fronts, 337 N. Engl. J. Med. 779 (1997)
Ruthanne Marcus & David M. Bell, Occupational Risk of Human Immunodeficiency Virus Infection in Health Care Workers, in AIDS: Etiology, Diagnosis, Treatment and Prevention (Vincent T. DeVita et al. eds., 4th ed. 1997).
Sara Babich, D.D.S. & Ronald P. Burakoff, D.M.D., Occupational Hazards of Dentistry, New York State Dental Journal 27 (October 1997)
Scott Burris, Dental Discrimination Againlynn et al., Absence of Antibody Among Dental Professionals Exposed to Infected Patients, 146 West. J. Med. 439 (1987) (255 dental workers with frequent HIV-positive patients, none HIV-positive), and Robert S. Klein et al., Low Occupational Risk of Human Immunodeficiency Virus Infection Among Dental Professionals, 318 N. Eng. J. Med. 86, 88 (1988) (1,309 dental workers, many practicing in areas with high prevalence of HIV infection, only one dentist tested positive but no occupational exposure to HIV could be documented).
11. A decade ago, the American Dental Association noted that patients with HIV infection may be safely treated in private dental offices when appropriate infection control procedures are employed. Facts about AIDS for the Dental Team, supra n. 10 at 15. It has reiterated this position to this Court. (Brf. Amicus Curiae American Dental Association in Supp. of Pet'r at 1-2 n.2.)
12. Position Paper on Acquired Immune Deficiency Syndrome (American Association of Oral and Maxillofacial Surgeons, Rosemont, Illinois), Sept. 1991 (J.S. 111).
13. Code of Medical Ethics (American Medical Association, Chicago, Illinois), 1996-1997 ed., § 9.131 (first issued in 1992). The AMA's Principles of Medical Ethics state that "when an epidemic prevails, a physician must continue his labors without regard to the risk to his own health." Ethical Issues Involved in the Growing AIDS Crisis (Council on Ethical and Judicial Affairs of the American Medical Association, Chicago, Illinois), Sept. 1988, at 1-2 citing Principles of Medical Ethics (American Medical Association, Chicago, Illinois), 1955.
14. Guide to Public Health Practice: HIV and the Detal Community (Association of State and Territorial Dental Directors & Association of State and Territorial Health Officials, Washington D.C.) (J.A. at 125-26).
15. AIDS & Dentistry, A Discussion Leader's Guide, (Dental Steering Committee, AIDS Education and Training Center for Southern CA, Los Angeles, California) 1991 at 28.
16. Indeed, in its amicus brief to this Court, the American Dental Association notes that its own ethical policies provide that "a decision not to provide treatment to an individual because the individual has AIDS or is HIV seropositive based solely on that fact, is unethical," and that "in Association communications on this issue, members be reminded that a patient's HIV/AIDS status is not a justification for refusal of treatment." Amicus Curiae Brief of the American Dental Association at 1-2 n. 2. The American Dental Association argues, nonetheless, that the ADA should be interpreted not to cover all HIV-positive persons. Such an interpretation not only would be incorrect and harmful to the public health, but also would provide little if any meaningful guidance for dentists or other health care workers, who would be left not knowing when the ADA and similar laws govern their conduct and when they do not.
