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Posts Tagged ‘HIV-related discrimination’

Federal Court Awards Significant Damages to Individuals Denied Plastic Surgery Because of HIV Status 

Posted on: August 22nd, 2020 by Art Leonard No Comments

U.S. District Judge Analisa Torres (S.D.N.Y.) ruled on August 5 in United States v. Asare, 2020 U.S. Dist. LEXIS 139864, that three men who were denied plastic surgery by Dr. Emmanuel O. Asare because he believed them to be HIV-positive are entitled to the maximum statutory damages available in such a case under the Americans With Disabilities Act and the New York City Human Rights Law.  The court ordered that Dr. Asare to pay each of the men $125,000 and to pay a fine to the government of $15,000.  The total awarded is $390,000 in damages and penalties.  The court also ordered Dr. Asare to refrain from testing patients for HIV as a prerequisite for denying them services if they test positive.

The U.S. Department of Justice, which enforces Title III of the Americans with Disabilities Act (ADA), forbidding unjustified disability discrimination by public accommodations (including medical practices), filed this lawsuit in 2015, consolidating in one case complaints by three New York men, Mark Milano, J.G., and S.V.  Each of the men had gone to Dr. Asare seeking a procedure to remove unwanted body fat from their chests, a common procedure in which the doctor specialized.  Each of the men was ultimately rejected for the procedure by the doctor when he came to believe (incorrectly in the case of one of them) that they were HIV-positive.

According to the court’s findings after discovery and trial, Dr. Asare’s practice was to have blood drawn for testing some days in advance of the scheduled procedure, to determine whether the patient had any condition that would cause him to deny them treatment.  J.G. and S.V. both testified that they were not asked to consent to HIV testing and were not aware that their blood would be tested for this purpose.  Dr. Asare’s practice was to categorically refuse to perform plastic surgery on HIV-positive people in his clinic.

J.G. had been scheduled for the procedure, but received a call from Dr. Asare’s office asking him to come in to speak with the doctor, who informed him that he had tested positive for HIV and could not receive the procedure.  J.G. had known for years that he was HIV-positive but had not disclosed this on the doctor’s intake questionnaire because he had long kept this information secret from all but a handful of individuals.  He was on anti-retroviral therapy, with an undetectable viral load, and was otherwise healthy.  When he submitted to a blood draw for testing, he was not told that his blood would be tested for HIV.

S.V., a single father of two children who was planning to get married, decided to get the surgical procedure because he was dissatisfied by the appearance of his body.  Due to some sort of mix-up, he had actually reported for the procedure, was sedated and ready for it to be performed, when Dr. Asare informed him that the blood draw a few days earlier showed that he was HIV-positive and the procedure was off.   Asare called a car service for S.V. and sent him home in a sedated state!  When he arrived home, S.V., who was puzzled and shocked by the news, was so woozy that he had to crawl up the stairs to his bedroom and slept for hours.  Not believing that he could possibly be HIV-positive, he went to a hospital a few days later for testing and was informed that he was not HIV-positive.  Judge Torres’ opinion identifies J.G. and Milano as gay men, but does not so specify as to S.V., and does not mention the gender of the person he was planning to marry.

Mark Milano, who was working at the time for an HIV/AIDS organization, also knew that he was HIV-positive, but he did not indicate this on the intake questionnaire because he did not consider the information relevant.  However, in discussing the procedure with Dr. Asare, he asked out of curiosity whether the anti-viral medication he was taking could be responsible for the fatty deposits he wanted to have removed from his chest.  Asare replied that his office was not set up to provide surgery for HIV-positive people and refused to schedule the procedure.  Thus, with Milano things did not get to the stage of blood testing in advance of the procedure.

Under the ADA, a public accommodation, including a medical practice, may not deny services to somebody because of a disability, either actual or perceived, unless the disability renders the person unqualified for the service.  In this case, Judge Torres heard expert testimony that convinced her that being HIV-positive, which is considered a disability under the ADA, was not a disqualification for the procedure Dr. Asare was supposed to provide to these men.  She concluded that the doctor’s explanation that it would be dangerous to mix the anesthetic he used with the anti-retroviral medication that an HIV-positive person would be taking had no medical basis.

Furthermore, the ADA prohibits medical testing that would unjustifiably screen out qualified individuals from receiving a service.  The medical experts testified that all surgeons are supposed to observe “universal precautions” with patients to avoid exposure to any blood-borne infections, regardless of testing.  The emergence of “universal precautions” as the standard of care was actually sparked by the AIDS epidemic.  Before then, it was an open secret in the medical profession that many health care professionals were infected with hepatitis B, a much more easily transmitted infection through blood exposure than HIV, as a result of casual exposure to the blood of patients in health care facilities where universal precautions against such exposure were not enforced.

Thus, Dr. Asare was found to have violated the ADA (and, since his activities were taking place in New York City, the City’s Human Rights Law) in two respects: denying services to people with a disability, and using medical testing to screen out otherwise qualified people with a disability.

Some of these points had been established at earlier stages of the litigation when the focus was on Mr. Milano’s discrimination claim.  The government’s decision to add claims on behalf of J.G. and S.V. prolonged the case, because the issue of testing, which was not raised in Milano’s case, had to be addressed in connection with J.G. and S.V..  The court needed medical expert testimony so that Judge Torres could determine whether requiring the testing violated the statute, a crucial point in framing her remedial order in the case, and haggling about the qualification of an appropriate expert caused significant delay, which is one of the reasons a lawsuit originally filed in 2015 did not come to a final ruling by the trial court until five years later.

The amount of damages was determined by reference to the range of damages that are customarily awarded in Title III cases.  Here the focus was on the psychological and emotional impact on the three men from being denied Dr. Asare’s services under these circumstances.  Each of them credibly testified about severe emotional distress that they suffered, prompting the judge to award the highest amount of damages that she found to be available under the ranges of damages that have been awarded in ADA cases, adding consideration of the range of remedies available under the New York City law as well.

It is possible that Dr. Asare could get the damages cut down on appeal to the 2nd Circuit Court of Appeals, but Judge Torres devoted a substantial part of her opinion to describing the testimony about how each man was affected by being rejected for the procedure, and particularly the bizarre treatment of S.V., who was not HIV-positive and was actually prepped for surgery and sedated by mistake, then sent home in that sedated state without any supervision or follow-up from Dr. Asare’s office to see whether he was all right.  The court’s description of Dr. Asare’s conduct in this case should draw the attention of regulatory authorities on health care practice.

Lawyers from the U.S. Department of Justice prosecuted the case against Dr. Asare, but Mark Milano was allowed by Judge Torres to intervene as a co-plaintiff, and he was represented by Alison Ellis Frick and Matthew D. Brinckerhoff, of Emery Celli Brinckerhoff & Abady, LLP, New York, NY, as well as Armen Hagop Merjian, who has litigated many important HIV-related cases on behalf of Housing Works, Inc., a provider of housing to people living with HIV and an active advocate for their rights.

Federal Court Refuses to Dismiss HIV-Related Housing Discrimination Claim Against LeFrak Realty Organization

Posted on: December 17th, 2013 by Art Leonard No Comments

U.S. District Judge Denise Cote has refused to dismiss a discrimination case brought by a person living with HIV, identified in court papers as L.C., and the Fair Housing Justice Center against a major New York City realtor, Lefrak Organization and its subsidiary, Estates NY Real Estate Services, Inc.  Judge Cote’s December 13 ruling found that that plaintiffs had successfully alleged facts supporting a claim that LeFrak’s rental practices at its LeFrak City apartments in Queens discriminate against people living with HIV who are clients of New York City’s HIV/AIDS Services Administration (HASA), a division of the City’s Human Resources Agency.  L.C. v. LeFrak Organizations, Inc., 2013 U.S. Dist. LEXIS 175756.

According to the complaint, L.C. was notified by HASA that she would be entitled to economic support to rent an apartment up to a monthly rent of $1,100.  Under HASA’s policies, L.C. was supposed to locate and apply to rent a suitable apartment and, upon approval by HASA, the agency would issue a check to the landlord for the first month’s rent and a voucher to cover an equal amount as a security deposit, and HASA would subsequently issue monthly checks to the landlord to cover the rent.  HASA also covers any necessary broker fees.

Thus notified by HASA, L.C. went to the LeFrak City website, determined that apartments were available there within the specified price range, and called the rental office.  When she identified herself as a HASA client, she was referred to “an office on Queens Boulevard that deals with applicants who will be using government benefits programs to pay their rent,” according to Judge Cote’s opinion.  There, L.C. encountered the Catch-22 in this situation.  LeFrak’s agents would not show L.C. an apartment until she provided a letter from HASA confirming that they would pay a specific amount for the rent, but HASA does not issue such letters before a client has actually been approved to rent a particular apartment.  L.C. explained to the LeFrak agent that she needed to apply for the particular apartment and have it approved by HASA before HASA would issue a letter, but the LeFrak people said they would not process L.C.’s application until they had a letter from HASA.

L.C. then met with her HASA case manager, who confirmed with her supervisor that HASA does not issue such letters.  L.C. then visited Housing Works, and a Housing Works manager called LeFrak.  The LeFrak representative confirmed at that time that they had apartments available for around $1,100 a month, but that a letter from HASA had to be submitted before they would process L.C.’s application.

The other plaintiff in the case, Fair Housing Justice Center, sent “testers” to LeFrak to confirm what their policies are.  LeFrak was then listing three apartments at LeFrak City within the $1,100 price range.  One tester told the LeFrak staff that she was employed, earning $46,000 a year, and looking for a studio or one-bedroom in LeFrak City in that price range.  She was promptly shown a floor plan and given an application to complete, and no request for documentation of her income was made at that time.  Two other testers told the LeFrak people that they were inquiring for a brother who was living with AIDS and would be receiving a housing subsidy from HASA, and in both cases they were referred to the special office for renters using government program subsidies.  They confronted the same response as L.C..  They could not submit an application or see an apartment until they submitted the requested “papers” including a HASA commitment letter.  They were also required to wait for LeFrak to do a criminal and credit background check.   (This had not been requested of the tester who said she was employed.)  The testers also noted that the office to which they were referred had a glass window separating the applicants from the LeFrak staff, unlike the regular rental office.

L.C. and FHJC filed their federal discrimination lawsuit on April 25, 2013, asserting claims under the federal Fair Housing Act (FHA), which forbids housing discrimination against people with disabilities, and the New York City Human Rights Law, which forbids discrimination not only against people with disabilities but also discrimination based on a potential renter’s source of income.  The complaint claimed both intentional discrimination (disparate treatment) and maintenance of procedures that had a disproportionate adverse effect on people with disabilities (disparate impact).

LeFrak moved to dismiss the case, claiming that it did not intentionally discriminate against people with HIV.  LeFrak argued that the FHA claims had to be dismissed because they failed to allege that LeFrak had discriminated because of HIV status.  They asserted that the story told in the complaint was one of treating people differently depending upon their source of income to pay rent, and that this did not violate the FHA.  Rejecting this argument, Judge Cote wrote that the complaint “alleges that LeFrak understood that HASA clients, alone of all persons requiring government housing subsidies, would be unable to produce a source-of-income letter at the application stage of the rental process.  This is sufficient to give the defendants fair notice of the plaintiffs’ theory that LeFrak intentionally discriminated against L.C.”

Judge Cote also found that plaintiffs could maintain an action under another provision of the FHA which refers not only to the actual rental of housing but also to the “terms, conditions or privileges” attached to housing.  For example, refusing to let L.C. see an available apartment or floor plan can itself be the basis of a discrimination claim, so the case is not solely based on a denial of a rental application.

Judge Cote found that the complaint could also qualify under the disparate impact theory, by showing that LeFrak maintained procedures that made it particularly difficult for HASA clients to rent apartments, thus having a “disparate impact” against persons with HIV.   LeFrak objected that the plaintiffs failed to provide statistics showing the disparate impact, but Judge Cote found that they had alleged that out of 8 million New Yorkers, 67,000 are living with HIV and almost half of them are HASA clients, the “vast majority” of whom are using the HASA housing subsidy program.  “This adequately puts the defendants on notice that plaintiffs’ alleged basis for disparate impact is that the percentage of the HIV population in New York City on housing subsidies exceeds the percentage of non-HIV New York City population on housing subsidies.”

LeFrak argued that L.C. should be challenging HASA’s refusal to provide the necessary commitment letters, rather than LeFrak’s refusal to process rental applications without receiving such letters.  Judge Cote rejected this argument as well, pointing out that LeFrak had not argued that HASA was a “necessary party” to this case, so this argument did not entitled LeFrak to get the claims against itself dismissed.

The judge’s analysis of the New York City Human Rights Law claims was straightforward.  Since the city law outlaws the same kind of housing discrimination based on disability that is outlawed by the FHA, the same factual allegations supported the city law discrimination claim.  That the city law also forbids housing discrimination based on source-of-income, a relatively recent addition to the law, makes the city law claim even stronger in this case, especially since LeFrak argued in opposition to the federal claim that its policies discriminated based on source-of-income, not disability.  In fact, LeFrak’s argument sounds like a concession that its policy violates the city law.

LeFrak argued that its policy of requiring rental applicants to provide income documentation before renting an apartment was “legitimate and applied to all applicants.”  Cote pointed out that the plaintiffs were not denying that, but rather were challenging LeFrak’s refusal to show apartments or accept rental applications before documentation of income was presented, because this policy “served as an impediment that prevented L.C. from ‘securing’ an apartment.”  Judge Cote observed that the complaint makes the claim that LeFrak’s differential approach on documentation between applicants of means and applicants who are relying on government programs establishes “a prima facie case of disparate treatment based on source of income,” a direct violation of the city law.  Judge Cote also found that the plaintiffs had alleged necessary facts to put their city law case in play, by showing that if LeFrak had processed L.C.’s application and conditionally approved her as a tenant, HASA would have provided the documentation necessary to complete the rental process.

Finally, Cote rejected LeFrak’s argument that because the city law applies to discrimination in rentals but doesn’t mention any right for a member of the public to “inspect” an apartment before applying for it, LeFrak could not be held liable for a violation merely because it refused to allow inspections of vacant apartments by public housing subsidy applicants who had not yet presented written confirmation of their housing benefits.  Cote pointed out that the city law has a provision mandating “liberal construction,” and found that any obstruction put in the way of a potential client could come within the ambit of the anti-discrimination law.

Attorneys Armen Merjian from Housing Works and Diane Lee Houk from the law firm Emery Celli Brinckerhoff and Abady represent the plaintiffs L.C. and FHJC.   LeFrak is represented by Randy Mastro and other attorneys from Gibson, Dunn & Crutcher.