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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.