1. Planteamiento del Problema
2.2 Bases Teóricas
2.2.4 El rendimiento académico
Having access to health care is a fundamental part of American life. For some individuals with HIV, that access is compromised by health care professionals who refuse to treat those with HIV. The Department recognizes the importance of full access to health care, and has moved aggres- sively to investigate and resolve such complaints. The Department has carefully studied the med- ical evidence about HIV and heeded the guide- lines issued by the Centers for Disease Control
61 Settlement Agreement between the United States and Washington Hosp. Ctr. (Nov. 2, 2005), available at http://www.ada.
gov/ whc.htm.
62 Settlement Agreement between the United States and Valley Radiologists Med. Group (Nov. 2, 2005), available at
asked his doctor about surgical options. Mr. Bourdon alleged that his doctor refused to per- form surgery because of his HIV. Mr. Bourdon filed a lawsuit against his physician, and the Department intervened in 2003. The case settled prior to trial through a consent decree, in which Arizona Bone & Joint Specialists agreed to pay $120,000 in compensatory damages to Mr. Bourdon and $20,000 in civil penalties.67The doc-
tors adopted a nondiscrimination policy, and agreed in the future not to deny services to indi- viduals with HIV or other disabilities.
Complaints are not limited to refusals to pro- vide care in an office setting. The Department has also focused on the denial of care in an emer- gency situation. In 2001, John Gill Smith of Phil- adelphia called 9-1-1 because he believed he was having a heart attack. Paramedics employed by the City of Philadelphia arrived on the scene and, after being informed of Mr. Smith’s HIV status, refused to provide the pre-hospital care that would have been reasonable and appropriate for an individual complaining of chest pains. Mr. Smith alleged that they refused to touch him or assess his condition and refused to give him physical assistance in getting out of his home and into the ambulance. He alleged that on the way to the hospital he was verbally harassed and insult- ed because of his HIV status. The Department filed suit in 2004 seeking to prevent the City’s EMS providers from discriminating against indi- viduals with HIV and seeking an award of com- pensatory damages for Mr. Smith.68 The parties
are in settlement discussions to resolve issues in the case. If settlement fails, the case will be scheduled for trial.
governing safe treatment.63 The Department is also guided by the Supreme Court’s decision in
Bragdon v. Abbott,64 a case involving a dentist who refused to provide even the most routine dental care to a patient with HIV. The Court held that a medical provider may not refuse to treat by invoking the “direct threat” defense unless the risk of HIV transmission is “significant” and based on objective evidence.65
In 2003, the Department resolved allegations in a complaint filed by a young man who went to the Burleson St. Joseph Health Center in Burton, Texas, for treatment of sinusitis. In the course of providing his medical history, he disclosed that he had HIV. Several weeks later, the Health Center sent him a letter by certified mail inform- ing him that he could no longer receive treatment at the clinic “due to [his] medical condition being out of the scope of service of our nurse practi- tioner,” and suggesting that he see a physician in a town an hour away. Under the settlement agreement negotiated by the Department, Burleson St. Joseph agreed that it would no longer turn away patients with HIV whom it is otherwise qualified to treat, and employees would be trained about the nondiscrimination requirements of the ADA.66
Mark Bourdon alleged a similar experience when his doctor informed him that he would not treat him because of Mr. Bourdon’s HIV. In May 2000, Mr. Bourdon consulted the Arizona Bone & Joint Specialists, Ltd., a sports medicine practice with offices in Phoenix and Scottsdale, about a strained muscle in his shoulder. At his initial visit, Mr. Bourdon disclosed he had HIV. When physical therapy failed to correct the problem, he
63 See, e.g., Centers for Disease Control, Recommendations for Preventing Transmission of Human Immunodeficiency Virus and
Hepatitis B During Exposure-Prone Invasive Procedures, Morbidity and Mortality Weekly Report (July 12, 1991), Vol. 40, (RR08), 1-
9; Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public-Safety
Workers, Morbidity and Mortality Weekly Report (June 23, 1989), Vol. 38, No. S-6; Recommendations for Prevention of HIV Transmission in Health-Care Settings, Morbidity and Mortality Weekly Report (Aug. 21, 1987), Vol. 36, No. 2S.
64 Bragdon v. Abbott, 524 U.S. 625 (1998). 65 Id. at 649-55.
66Settlement Agreement between the United States and the Burleson St. Joseph Health Ctr. (Apr. 21, 2003).
67 Bourdon and United States v. Croft, No. 02-1233 (D. Ariz. Feb. 10, 2004), available at http://www.ada.gov/bourdoncons.htm. 68 Smith and United States v. City of Philadelphia, No. 03-6494 (E.D. Pa. 2004).