GLAD Cases

Access to Health Care

Shaw v. Murphy  (Massachusetts)

VICTORY!

On February 19, 2008, the Massachusetts Court of Appeals ruled in favor of Ashley Shaw, who has sought to get MassHealth to cover her medically necessary HIV-related surgery. When Ashley was 15, her doctors recommended the surgical removal of a fat pad from her neck, a side-effect of her HIV medications. MassHealth denied coverage on the eve of the surgery, and argued that Ashley had waived any right to reimbursement because her mom decided to go ahead with the surgery before exhausting all appeals. A Massachusetts Superior Court Judge sided with MassHealth, and GLAD appealed. GLAD argued, and the Appeals Court agreed, that MassHealth must review the medical necessity of the procedure.

Doe v. Roe Physicians (New Hampshire, 2002)

VICTORY!!

GLAD settled a case against a doctor who refused to provide in-office care to a patient with HIV, after the New Hampshire Commission for Human Rights found probable cause to believe that unlawful discrimination had occurred. The doctor claimed that he did not know whether the procedure could be performed in the office due to the patient's HIV status, although he regularly performed the procedure for other patients and could idendify no medical basis to perform the procedure in an alternative setting. The terms of the settlement remain confidential.
 

Waddell v. Valley Forge Dental Associates (U.S. Supreme Court, 2002)

APPEAL DENIED

GLAD filed a friend of the court brief urging the U.S. Supreme Court to decide the case of an HIV-positive dental hygienist who was fired after his doctor revealed his HIV status to his employer. A federal appellate court in Atlanta had ruled that the hygienist was a “direct threat” to patients and therefore that his termination was not a violation of the Americans with Disabilities Act (ADA). In contrast to the cases in which courts have ruled against doctors who refused treatment to HIV-positive patients arguing a “direct threat” (see discussion of Bragdon v. Abbott, below), courts have reacted to cases involving discrimination against HIV-positive health care providers with irrational fear and disregard for the scientific evidence. In effect, the courts have required proof of zero threat from the health care worker, a virtually impossible standard. Although the Supreme Court declined to decide this case and clarify what “direct threat” should mean in this context, the willingness of courts around the country to uphold the termination of HIV-positive health care workers who perform invasive procedures remains one of the most pressing legal challenges ahead.
 

Doe v. Managed Care Organization (Massachusetts Division of Medical Assistance, 2001)

VICTORY!!

In the first legal ruling of its kind in the country, GLAD prevailed in an action to cover the cost of a life-saving liver transplant for a Medicaid recipient with both HIV and end-stage liver disease as a result of hepatitis C. The case was brought on behalf of a 41 year-old Roxbury, Mass. man who was in no danger of dying from his HIV, but would have died within months of Hepatitis-related liver disease without the transplant. Medicaid coverage was denied on the ground that liver transplants are “experimental” – and, therefore, are not covered – in the presence of HIV infection. On appeal, the Division of Medical Assistance Board of Hearings rejected the claim that liver transplantation is “experimental” in people with HIV. As a result of this decision, insurers cannot categorically exclude people with HIV from liver transplantation.
 

Lesley v. Hee Man Chie (United States Court of Appeals for the First Circuit, 2001)

LOSS

In a disappointing decision, the United States Court of Appeals in Boston upheld a US District Court’s ruling that a Leominster, MA obstetrician did not violate disability anti-discrimination laws when he refused to continue care for a pregnant woman after she tested HIV-positive. The Court made its ruling despite both GLAD and the Massachusetts Department of Public Health presenting compelling evidence that there was no medical justification for Dr. Chie’s termination of Ms. Lesley’s care simply on the basis of her HIV-positive status.

It should be noted that the decision applies to an important, but limited type of discrimination lawsuit. It does not alter basic legal protections for people with HIV, nor does it apply to cases with very different factual scenarios than those pointed to by the Court in its decision.
 

Carr v. New England Medical Center (Massachusetts, 1999)

VICTORY!!

GLAD won a favorable settlement on behalf of a gay man denied sperm banking and transport services simply because he is gay and assumed to be at “high risk” for HIV.
 

Doe v. Maine Correctional Center (Maine, 1999)

VICTORY!!

GLAD succeeded in obtaining proper medical care and medications for an HIV-positive prisoner denied even access to a doctor knowledgeable about HIV.
 

Bragdon v. Abbott (U.S. Supreme Court, 1998)

VICTORY!!

In its first case addressing HIV, the United States Supreme Court ruled 5-4 in Bragdon v. Abbott that the federal Americans with Disabilities Act (ADA) prohibits discrimination against people living with HIV, whether or not they show any visible symptoms or have an AIDS diagnosis. The Court’s 1998 decision is a critical victory for people living with HIV because the ADA and similar state disability discrimination statutes are the only legal bases to fight HIV-related discrimination in jobs, housing and health care.

In this case, Bangor, Maine resident Sidney Abbott went to Randon Bragdon, D.M.D. to have a cavity filled. Citing his fears of HIV transmission from a patient, Dr. Bragdon refused to fill her cavity in his office solely because Ms. Abbott disclosed on a medical questionnaire that she has HIV. Dr. Bragdon claimed that people with HIV who were not yet manifestly ill did not meet the ADA’s definition of “disability.” The ADA defines a disability as a health condition that “substantially limits one or more major life activities.”

In its landmark decision, the Supreme Court agreed with GLAD that the presence of visible symptoms or illness is not necessary for coverage under the ADA. Justice Anthony Kennedy, writing for the Court, gave a broad, expansive interpretation to the definition of “major life activities,” and specifically noted that Sidney Abbott was substantially limited in the major life activity of reproduction because of the risk of infecting her partner and her child.

The Court’s language and reasoning, however, go far beyond the facts of Sidney Abbott’s case and ensures that all people with HIV will be covered by the ADA. In a lengthy analysis, the Court endorsed long-standing interpretations of the ADA by the U.S. Department of Justice and the Equal Employment Opportunity Commission, which found that the ADA protects symptomatic and asymptomatic HIV-infected individuals from discrimination, in part because HIV limits both procreation and sexual relations. The Supreme Court directed the nation’s lower courts to follow these agency interpretations. The Supreme Court’s broad definition of “disability” and its endorsement of these administrative interpretations of the ADA mean that Bragdon v. Abbott is an enormous victory, not only for Sidney Abbott, but for all people living with a disability.

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Criminal / Law Enforcement

Commonwealth v. Smith (Middlesex Superior Court, 2000; Massachusetts Court of Appeals, 2003) 

In 2000, GLAD filed a brief in a Middlesex Superior Court criminal action on behalf of a person with HIV who had been charged by Middlesex District Attorney Martha Coakley with assault with intent to kill for throwing feces at a probation officer and biting a corrections officer. Such conduct, while inexcusable, is not a mode of HIV transmission; and these types of prosecutions serve no purpose other than to spread fear and hysteria about HIV among judges, jurors and the public at large. Faced with a trial judge who believed that HIV could be transmitted by saliva, the defendant entered into a last-minute plea agreement that resulted in his being sentenced to three years in prison (much more than a typical sentence for drunk driving)!

GLAD continues to work on this case.  In 2003, the defendant filed an appeal seeking to vacate his guilty plea because it was based on his public defender's advice in the trial court that he disclose his HIV-positive status.  The question is whether this was bad advice because the Massachusetts HIV testing and confidentiality statute prohibits HIV testing or disclosure of HIV status without written consent.  The absolute requirement of informed consent for HIV testing has been a key element of the public health effort to stem the tide of the HIV epidemic.  GLAD filed an amicus brief to ensure that the Appeals Court does not craft exceptions to the statute that would undermine its purpose in many contexts beyond this case.
 

HIV-related Criminal Charges

GLAD has successfully advocated for many people with HIV throughout Massachusetts who have been unfairly charged with crimes alleging intentional HIV transmission, based on acts such as spitting, which do not transmit HIV.

Employment

Dahill v. Boston Police Department (Massachusetts, 2001)

VICTORY!!

In this case, in May 2001, the Mass. Supreme Judicial Court ruled that Massachusetts law prohibits discrimination in employment, housing and public accommodations against individuals whose disability has been corrected or mitigated by medications or other corrective measures (e.g., a person who wears a hearing aid, or who takes medications to control a condition like diabetes or epilepsy). In August 2000, GLAD, together with the Disability Law Center, filed a brief in the Supreme Judicial Court, addressing the critical question of who is protected from discrimination under disability anti-discrimination laws. This important victory should ensure the continued protection of people with HIV from job discrimination under disability anti-discrimination laws, even as advancements in the treatment of HIV are made.

The brief was filed on behalf of a wide range of disability, civil rights, and civic organizations, including the American Association of Retired Persons, Catholic Charities, AIDS Action Committee, D.E.A.F., Inc., and the Epilepsy Foundation of Massachusetts.
 

Doe v. Board of Registration of Cosmetology (Massachusetts, 2000)

VICTORY!!

GLAD obtained clarification from the Board of Registration of Cosmetology that an individual completing a cosmetology program does not fail the statutory requirement to be certified as free from infectious diseases, simply by virtue of being HIV-positive.

Family

Doe and Doe v. Department of Social Services (Massachusetts, 2000)

VICTORY!!

GLAD negotiated an agreement with the Department of Social Services that it was an error for the Department to allow only HIV-positive children to be placed in foster care with an HIV-positive couple.

HIV Prevention

Commonwealth v. Landry (Massachusetts, 2002)

VICTORY!!

In a major victory for public health programs that stem the tide of HIV and hepatitis C, the Supreme Judicial Court ruled on December 6, 2002 that needle exchange program participants may lawfully possess needles throughout the state, not merely in the city or town in which the program is sited.  The court also ruled that police may not arrest a needle exchange participant for unlawful possession of syringes if the person presents the police with a valid needle exchange program identification card.  The landmark decision puts to rest the claims by the Lynn Police Department and some others that the protection from arrest applies only in the few locales in Massachusetts that have approved the siting of a needle exchange program -- Boston, Cambridge, Provincetown, and Northampton.

GLAD filed a “friend of the court” brief on behalf of thirty state and national medical, public health, substance abuse, and AIDS service organizations, including the Infectious Diseases Society of America, and the Boston and Cambridge Public Health Departments. The defendant, Maria Landry, was represented by the Civil Liberties Union of Massachusetts.

The court agreed with GLAD's argument, based on conclusive scientific evidence that needle exchange saves lives by reducing transmission of HIV, hepatitis B, and hepatitis C, and is one of the most effective mechanisms to engage the high-risk population of intravenous drug users in substance abuse treatment services.

Although Massachusetts lags behind many states in providing access to clean needles for intravenous drug users, the Massachusetts Legislature has authorized the establishment of ten programs throughout the state, as long as “local approval” is granted by the city or town in which the program is sited. Programs currently exist in Boston, Cambridge, Northampton, and Provincetown. At the time that the legislature passed the law authorizing needle exchange programs, it also amended the law that specifies who may lawfully possess a hypodermic needle by providing that possession of needles obtained through an authorized exchange program “shall not be a crime.”

In its decision, the state's highest court agreed with GLAD that the Legislature clearly intended that once a needle is lawfully obtained, the exemption from criminal prosecution is not limited to the town in which the program is sited. Further, needle exchange participants who possess a valid enrollment card should be immune from arrest for possession of a needle.

Read GLAD's brief in this case...
Read the SJC decision...
 

Netherland et al. v. Whiteman et al. (Massachusetts, 2005)

CASE SETTLED

GLAD is putting the right-wing on notice that they cannot use intimidation tactics to try to stop vitally important sex education information from getting to young people. In violation of Massachusetts wiretapping and privacy laws, Scott Whiteman, Brian Camenker, and the right-wing organization Parents Rights Coalition publicly distributed a tape recording of a sexuality and HIV/AIDS prevention education workshop conducted in March, 2000 at a conference sponsored by GLSEN. GLAD filed suit in Massachusetts Superior Court on behalf of Julie Netherland, a former employee of the Department of Education, and obtained a temporary restraining order (later converted to a preliminary injunction) to stop the defendants from further distributing the tape recording. After a lengthy discovery period, GLAD filed a motion for summary judgment, which was granted by the court.  The case was settled on March 9, 2005.

Insurance

Doe v. MetLife Disability Insurance and Raytheon (Massachusetts, 2001)

VICTORY!!

GLAD, with co-counsel Stephen Rosenfeld and Mala Rafik, won the restoration of disability insurance benefits when an insurer wrongfully terminated coverage for a client with HIV who remained too debilitated by advanced HIV and significant fatigue to work. The case was successfully settled out of court, with the insurance company agreeing to reinstate our client’s benefits, and make payment for all past, unpaid months of benefits. The case raised some of the typical issues that we see when insurers terminate long-term disability benefits for being with HIV – e.g., an insurer’s insistence on “objective” evidence when the basis for disability consists of subjective symptoms such as fatigue.
 

Lambert v. MetLife Insurance Company (Maine, 1999)

VICTORY!!

GLAD won the restoration of disability insurance benefits for a Portland man suffering from disabling fatigue where the insurer sought to rely on mere stabilization from new medications to terminate benefits.

Privacy and Testing

Commonwealth v. Ortiz (Massachusetts, 2000)

VICTORY!!

A single justice of the Supreme Judicial Court issued an opinion strongly affirming the absolute privacy of a person’s HIV status under Massachusetts law. In this case, in which GLAD filed a friend of the court brief on behalf of itself and AIDS Action Committee, Justice Martha Sosman overturned an order from the Springfield District Court that a criminal defendant disclose to police officers whether he is HIV+, after an arrest that involved contact with the defendant’s blood. The ruling is important not only for the affirmation of privacy rights, but also because it puts to rest arguments that there should be “implied exceptions” to our confidentiality statute.
 

Doe v. Nashua Housing Authority (New Hampshire, 2000)

VICTORY!!

GLAD won a change in the practice of the Nashua Housing Authority, which had been illegally demanding private medical information about individuals living in subsidized housing.
 

Doe v. Roe Hospital (Massachusetts, 1999)

VICTORY!!

GLAD successfully resolved a lawsuit against a hospital that violated the HIV testing and confidentiality statute by revealing a patient’s HIV status to his employer.
 

Gavann v. Douglas Wooldridge, M.D. (Massachusetts, 1996)

VICTORY!!

GLAD obtained a $10,000 judgment in Suffolk Superior Court against a surgeon who illegally tested a patient for HIV without his knowledge or consent.

Public Accommodations

Jane Doe v. Roe Moving Company (Massachusetts, 2001)

VICTORY!!

GLAD won a favorable settlement in a case filed at the Massachusetts Commission Against Discrimination (MCAD) against a central Massachusetts moving company that refused to provide moving services to a mother and her son, upon discovering that the son had AIDS.  The case settled following an MCAD finding of probable cause to believe that the company violated Massachusetts anti-discrimination laws.