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Doctor’s Refusal to Perform Necessary Surgery on HIV-positive Patient Violated Patient’s Civil Rights


By Max Nuyen

Most savvy employers have a firm grasp on the anti-discrimination laws which have been enacted by the federal government and the States to protect employees from discrimination on account of certain protected characteristics.  For employers who deal with the public in some way, shape or form, there are less well known anti-discrimination laws which apply as well.  These laws have force even if there is no employment relationship between the parties.

The public has a right to service free of discrimination
In 1959, California,  enacted the Unruh Civil Rights Act.  Its purpose is to prohibit discrimination in providing services or accommodations in retail establishments.  For example, a restaurant cannot refuse to serve a customer because of their race or ethnicity.  

The scope of the Unruh Civil Rights Act is broad.  It states that all persons, regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation, are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.    While the original intent of the Unruh Civil Rights Act was to eliminate discrimination in retail establishments, its plain language makes it applicable to any type of business.  As discussed below, under the Unruh Civil Rights Act, a court found that a doctor who refused to perform a necessary operation on an HIV-positive patient violated the patient’s rights.

A doctor-patient relationship is covered by civil rights laws
The patient in this case was HIV-positive since 2006.  However, she was not taking anti-viral medications for her condition.  In 2009, she developed a painful umbilical hernia  and was scheduled for surgery soon after . The surgeon was aware of her HIV-positive status, but saw no dangers or complications otherwise to the patient in performing the surgery.  Indeed, the pre-surgery testing confirmed that the patient was a good candidate for hernia repair.

On the day of the scheduled surgery, the patient was in the process of being prepped when the anesthesiologist, who had never met  the patient before, reviewed her charts.  He noted that she was HIV-positive but not on anti-viral medications.  He expressed a concern for his safety and the safety of the surgical team, then outright refused to take part in the scheduled procedure.  Because of his protest, the necessary hernia operation was cancelled on the spot.  The patient was then wheeled out of the hospital and discharged the same day.  She felt humiliated by the events.

The patient sued the anesthesiologist for violating her civil rights under the Unruh Civil Rights Act.  She alleged the anesthesiologist had discriminated against her on account of her disability, HIV-positive.  The anesthesiologist argued that being HIV-positive is not a disability recognized by the Unruh Civil Rights Act.

The appellate court disagreed with the doctor.  In fact, the appellate court found that being HIV-positive may be considered a disability as a matter of law.  Meaning, there is no factual or legal dispute that a person who is HIV-positive is disabled.  The appellate court noted that although federal courts have found that whether or not a person who is HIV-positive is disabled is a question of fact under the American with Disabilities Act, California courts have taken a different tack.  Under California anti-discrimination statutes, it has long been held that being HIV-positive is a form of disability.  In other words, the question is not up for debate – HIV-positive individuals are disabled under California law.

Thus, the anesthesiology, who refused to participate in the patient’s surgery on account of her being HIV-positive, violated the Unruh Civil Rights Act.  His refusal to provided services to  the patient is akin to a restaurant’s refusal to provide services to a diner.  This type of discrimination has long been outlawed in California ( as well as other states).

Words to the wise
While it is important for a company to ensure its internal policies regarding its employees are non-discriminatory, employers should also be aware that other statutes apply in situations which do not involve any employees, but to  its relationship with customers too.  Establishments should check their local laws and might even want to consider taking down their “We reserve the right to refuse service to anyone” sign.

Read the case here.


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