Florida Man Sues Over Being Denied a Hair Transplant

[Bill - Seemiller]

I thought this was pretty interesting so I thought I'd share it with everyone.

 

It would be interesting to get a doctor's input not necessarily the lawsuit, but the subject of whether or not their knowledge of a patient's disease like HIV determined by a blood test would prevent them from performing a procedure.

 

http://www.comcast.net/article...716/US.Hair.Lawsuit/

[miked]

wow! really interesting. i like the language "denying someone treatment". A good lawyer should be able to argue that there is no medical treatment involved as HTs are simply cosmetic and are not "treating" any health concerns.

 

But the reality is that aside from perhaps a questionnaire, few if any HT doctors conduct a test beforehand to establish whether or not a patient has a blood borne decease.

 

As such most (perhaps all?) HT Doctors practice in a way that assumes the worst case condition exists and perform HTs using appropriate "best practices" in the presence of sharps and blood.

 

Would love to hear if Doctors here feel potential HIV exposure is part of the HT landscape and only one more job related hazard that comes with the territory of being an HT surgeon/tech.

 

Certainly I imagine that more than a trivial percentage of men with MPB who are concerned with their looks are gay, so we could infer that there must be a sub-population of those with HIV that go on to seek HTs on a regular basis (in addition to a sub-population of straight men who have also become infected).

 

On the one hand you wouldn't want to deny someone with HIV the opportunity for an HT.

 

On the other hand we know that some fatigue is common(especially so in mega sessions involving thousands of needle pricks). The odds of a stray stick will eventually catch up with you no matter how careful one is. Should a tech or Doctor be put at such risk for the sake of someone's looks?

[Bill - Seemiller]

As such most (perhaps all?) HT Doctors practice in a way that assumes the worst case condition exists and perform HTs using appropriate "best practices" in the presence of sharps and blood.

 

That's exactly right. Even the reputable doctors I've spoken to that require blood tests prior to a procedure still operate under "worst case conditions", thus, minimizing their risk of exposure to any communicable disease. The question then ibecomes, is there a safety issue (significant or otherwise) if clinics perform hair transplant surgery on a patient with a communicable disease?

 

It would be interesting to hear the opinions of doctors on this.

 

Of course, the above link may not tell the full story. For all we know, the patient wasn't a proper candidate for the procedure and was denied the procedure for other reasons.

 

Best wishes,

 

Bill

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[alwayswaiting1]

All doctors treat all patients with the assumption that something could be transferred. All physicians, dentists, or who ever deals with patients fluids must adhere to infection control standards set forth by OSHA requirements. This means gloves, masks, and eye protection. If aerosols or splattering is produced, smocks and head covers are also required.

 

You cannot turn patients down for having a disease. The only defense this physician has is that a HT would not be recommended for this patient for "x" reason.

[miked]

You cannot turn patients down for having a disease. The only defense this physician has is that a HT would not be recommended for this patient for "x" reason.

 

 

Agreed. But that will put a great burden on the Doc since it is doubtful anyone ever gets turned away except perhaps for inability to pay.

[thanatopsis_awry]

Interesting....I'd be curious to hear Dr. Feller's view on this, particularly since he has been quite outspoken when digging into the layers and language of HTs -- "treatment", "cure", etc.

[Curious]

It should be up to the doctor to decide on whether he wants to perform surgery on a patient with a life-threatening, communicable disease. Doctors have the right to turn down patients just as patients have the right to decline the services of a physician.

[the B spot]

Wow this is a tough one, but the law says you cannot deny treatment to a patient simply because they are HIV positive.

 

Pretty standard. The only option left for the clinic is to challenge the actual law as unconstitutional or show why in this particular instance the law should be amended to not include cosmetic surgery.

 

It will interesting to follow this story--but I 100% understand the hesitation regarding HIV positive patients---there is no room for error.

 

I can see both sides and it is a tough one.

 

Jason

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[TC17]

I wouldn't be so sure to conclude that this is a slam dunk case for the patient. The Florida law in question is an extension of the federal American's with Disabilities Act of 1990. Refusing medical treatment solely on the basis of a patient's status as being HIV positive would be a violation, but doctors are given some wiggle room for professional discretion. Provided the physician in question could establish a legitimate, rational reason for refusing treatment (other than being HIV positive), the patient would be SOL. Remember, not every patient is a candidate for hair transplantation. So, compelling a physician to perform a surgery on an individual whom the physician does not believe to be a suitable candidate would be a violation of the 14th Amendment's protection against forced servitude. I don't see the plaintiff winning because I am sure that the doctor and his attorney are both intelligent enough to come up with a reason for refusing treatment, even if the real reason was the patient's status as being HIV positive.

[thanatopsis_awry]

As if being HIV, or AIDS, positive isn't a "legitimate, rational reason for refusing treatment"; law and truth needs to be further bastardized by lawyers (rightfully) concocting (additional) bullshit to simply negate the (original) bullshit that slithered its way into codified law.

 

Seems like the eminently plausible situation of....contracting HIV....or....death....to the doctor and his workers is a fairly "legitimate, rational reason".

 

I agree w/ TC's analysis and don't see the plaintiff getting the W.

[miked]

This expands on the ADA and the case law as it stands

 

The Americans With Disabilities Act of 1990 provides even broader protections for disabled individuals, including individuals who have a contagious disease. Title III of the ADA prohibits a place of public accommodation from denying an individual access to health care because of disability, unless the individual poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of policies, practices or procedures. A disabled individual is one who has a physical impairment that substantially limits one or more major life activities, a record of impairment, or is regarded as having an impairment.

 

In several cases, the courts have addressed the application of the ADA to a physician's decision to refuse to treat a patient. For example, in the case of Bragdon v. Abbott, decided by the Supreme Court in 1998, the court found that asymptotic HIV infection is a disability under the ADA. Bragdon involved a dentist's refusal to fill a cavity of an asymptotic HIV patient in his office, although the dentist was willing to treat the patient in a hospital at a higher cost to the patient. The patient sued Bragdon for violation of the ADA. The court ruled that asymptotic HIV constitutes a disability. The court's decision speaks to health care providers' legal obligation to treat HIV infected patients along with patients with other disabilities.

 

Ethical considerations may also limit the circumstances under which a physician can deny care to a patient. The American Medical Association Council of Ethical and Judicial Affairs has found it unethical to deny treatment to individuals because they are HIV positive.

 

Both the ethical opinions and legal precedents agree that a physician may not intentionally and unilaterally sever an existing relationship with any patient, unless the physician provides reasonable notice to the patient, in writing, and sufficient time to locate another physician. Failure of the physician to continue to provide care when the patient remains in need of care or failure to provide notice and an adequate opportunity for the patient to find another physician before the physician terminates the physician/patient relationship can be construed as the physician's abandonment of the patient or dereliction of the physician's duty if injury results. In addition to being exposed to liability for any damages that are caused by the abandonment or the breach of duty, the physician may be subject to disciplinary action under the state's medical practice act. In Pennsylvania, a physician's abandonment of a patient can result in disciplinary action against the physician and exposure to civil liability.

 

Even given these limitations, there are some circumstances when a physician can "fire" the patient in non-emergency situations. One such circumstance is the patient's unwillingness or inability to pay. However, caution must be exercised in this situation. Courts are split on whether a patient's inability to pay or lack of insurance justifies a physician's termination of the physician/patient relationship, especially when the patient continues to require medical attention.

 

If the patient is not currently receiving treatment and fails to pay, the physician may terminate the relationship after giving the patient reasonable notice and sufficient opportunity to secure another physician. Similarly, at least one court has found that a physician may terminate treatment when the physician no longer participates with the patient's health plan by informing the patient of the change and giving the patient a list of providers that participate with the health plan or obtaining the patient's agreement to pay out-of-pocket for the medical services provided.

 

A physician is not required to prescribe or render medical treatment that the physician deems ethically inappropriate or medically ineffective. A physician may refuse to treat a patient when the physician has a moral or religious objection to the care that is sought by the patient. If a physician decides not to provide services to a patient on religious, ethical or moral grounds, the physician should discuss the reasons for the refusal with the patient, inform the patient of other resources or providers that can competently respond to the patient's needs, and document the discussion with the patient in the patient's medical record.

 

A physician may deny care when a patient requests services outside the physician's area of expertise or office hours or at a location other than the physician's office. Physicians also have the right to close their panels and to refuse to accept new patients when they do not have the capacity to treat additional patients.

 

In non-emergency situations, a physician is justified in refusing to treat unruly and uncooperative patients. If a patient refuses to follow the physician's plan of care or to comply with an appropriate treatment regimen, the physician may unilaterally terminate the physician/patient relationship by giving the patient advance notice of the specific reasons for his termination. Assuming there is no change in the patient's behavior after receipt of the notice, the physician may give the patient written notice of the effective date of termination of the relationship as long as the physician provides ample opportunity for the patient to secure a competent substitute.

 

A physician employed only for a specific occasion or service may be under no duty to continue visits or treatment thereafter. Examples are a surgeon who limits treatment to the performance of the operation and necessary aftercare or a physician who is called upon to consult on a one-time basis with the patient's attending physician. In these situations, the physician may want to ensure that the patient has no expectation of repeat visits or continued treatment. Consequently, the physician should make sure that the patient understands the treatment is limited to a certain illness or injury or to a certain specified time and place and that another health care practitioner will be responsible for follow-up care.

 

In no case should the reason given to the patient for the denial of care be a pretext for discrimination. To avoid such an inference, the policy and procedures for termination of the physician-patient relationship must be uniformly applied and implemented by the physician in a non-discriminatory fashion. The physician should give the patient sufficient notice to find a new physician, assist in referral of the patient , provide the patient written notice or confirmation of the reasons for termination and include such documentation in the patient's medical record.

 

In summary, the physician/patient relationship, which is similar to any contractual relationship, creates certain obligations. Assuming that a physician/patient relationship exists, a physician has a duty to treat and may not just say "no" to care of a patient without exposure to liability for abandonment of the patient and possible malpractice. A physician's withdrawal from the relationship should not be attempted or accomplished during a time when the patient is in need of medical attention.

 

In every other instance, prior to withdrawal from or termination of the relationship, the physician should explain to the patient the reason why the physician is unable to attend to the patient's needs and assist in the patient's transfer to a competent substitute. Written documentation of the physician's notification to the patient and of the referral sources or providers recommended to the patient will demonstrate that the physician has satisfied the conditions for proper withdrawal. Just as the physician must exercise reasonable care and skill in treating the patient, the physician must exercise reasonable care and skill in discontinuing the physician/patient relationship.

 

Laura L. Katz, Esq., and Marshall B. Paul, Esq., are partners in the Business Department of Saul Ewing LLP in Baltimore, Maryland.

[miked]

Based on what I posted above, the doctor may argue within a narrow range that his skills and those of his staff may not be sufficiently evolved to safely and effectively control the risk posed by treating this patient.

 

Doctors take an oath to do no harm, but I don't recall them taking any oaths saying they should put their patients interests ahead of their wellbeing.

 

I am sure if the procedure is described to a jury that they would agree that the potential risk involved in a single strip HT is many times that which most healthcare professionals face over the course of a year.

 

I would also emphasize the the cosmetic nature of the treatment being sought.

 

Would like this to go all the way to the Florida Supreme court.

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[miked]

swim

 

perhaps I should have rephrased. The door seems pretty tight in allowing refusal once a doc/patient relationship is established.

 

but reading this section below - "individual posing significant risk" led me to believe that if the Doctor can show that his experience treating infected individuals and that of his staff is not adequate to guarantee his or his staff's safety, then he "may" have an out.

 

Perhaps showing a history of needle pricks by him or his staff may be sufficient to conclude that he and his staff needs additional training to properly handle this patient.

 

the ADA prohibits a place of public accommodation from denying an individual access to health care because of disability, unless the individual poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of policies, practices or procedures.

 

Would like to see some Doctors chime in on this.

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[TC17]

His status of being HIV positive can not be reason AT ALL for legitimate refusal. Moreover if they include that reason even LITTLE bit, or mention it, imply it etc.they sabotage them selves.

 

- I disagree with your assessment. Assuming for sake of argument that the doctor's assistant told the patient that they would not perform his surgery because he was HIV positive, that does not necessarily mean that the doctor would lose.

 

For starters, the ADA grants employers the ability to not hire an otherwise qualified applicant who is HIV positive, if there is a "significant risk of substantial harm to the health or safety of the invididual or of others", and if the threat cannot be eliminated or reduced to acceptable levels by way of reasonable accomodations. You can easily analogize the employer/employee relationship to that of cosmetic surgeon/prospective patient. Your argument would then center on whether there is a significant risk, and whether it can be eliminated or lessened to such a degree as to fall under ADA protection. (personally, I think the risk is so low that it wouldn't meet that criteria, but I'm not a doctor)

 

Second, the lawyers could argue that the statute in question was never intended to apply to elective procedures, and that hair transplants are not "treatment".

 

Third, the always popular "slippery slope" argument can be made. If the plaintiff is allowed to proceed with this claim, the court would be substituting its judgment for that of the physician. That could open the floodgates compelling physicians to perform all types of procedures that are against their medical judgment, or risk suit.

 

My personal opinion of this matter is that the risk can most likely be minimized to such a degree as to be practically nonexistent. Whether this would be actionable under ADA is a question that would have to be answered in the courts. I am struggling to understand how being HIV positive is a disability absent a substantial impairment to ones life. I'm no expert on ADA, but if I remember correctly, merely having a "disability" is not sufficient to get protection under the law. You must also show that the disability significantly impacts your life in a negative way.

[TC17]

Also, I'm tapping out of this discussion. While it is an interesting topic, I just don't care enough to keep going.

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