by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the April/May 1995 issue of the Journal
Question: Like more and more dentists, I have recently had a patient of record inform me that he has AIDS. I treated the patient and performed a prophy, during which there was heavy bleeding. Upon my recommendation, the patient thereafter purchased and used an electric toothbrush to reduce the risk of bleeding, but subsequently stopped using it. If the patient is noncompliant about his home care, there will likely be heavy bleeding at each subsequent prophy. Can I discontinue seeing this patient for noncompliance with my clinical instructions? Can I inform the patient that a complete prophy will not be done due to massive bleeding, and only a superficial polishing will be done?
Answer: The answers to these questions turn on the Americans with Disabilities Act (AwDA), which prohibits discrimination on the basis of disability by any private entity operating a place of public accommodation. The AwDA applies to the treatment of patients in dental offices. AIDS and HIV infection are disabilities under the AwDA.
If a dentist would discontinue treating a non-disabled patient for ignoring clinical instructions, discontinuing the treatment of an AIDS or HIV-infected patient for the same reasons should not be actionable under the AwDA. The AwDA does not require health care providers to continue treating disabled patients who ignore clinical instructions. The AwDA merely requires health care providers to treat disabled patients on the same basis as non-disabled patients.
Similarly, the AwDA does not require a dentist to render a specific procedure, such as a complete prophy, if the dentist determines that such a procedure is not appropriate for clinical reasons. The offering of an appropriate alternative form of treatment, such as superficial polishing, is consistent with the AwDA's requirement that persons with disabilities may not be denied services or treatment differently because of the absence of auxiliary aids and services, unless it can be shown that taking such measures would result in an undue burden. The AwDA does not require health care providers to treat disabled persons who pose a significant risk to the health and safety of others that cannot be eliminated by the use of auxiliary aids or special procedures.
Question: What do I do if a new patient is in the chair and the hygienist or assistant realizes that the patient is HIV-positive and refuses to render treatment?
Answer: Because the AwDA does not prohibit health care providers from taking a complete and accurate health history in order to render appropriate patient care, dentists may determine a patient's HIV or AIDS status prior to rendering treatment. If this has not been done and the hygienist or assistant realizes that the patient is HIV-positive while treating the patient, the AwDA does not prohibit the hygienist or assistant from ceasing treatment in order to determine whether auxiliary aids or special procedures are required for clinical reasons to render appropriate care to the patient.
Question: If a member of my staff refuses to treat an AIDS or HIV-positive patient, and I treat the patient myself, am I still liable (as the employer) for a possible charge of discrimination that could be filed by the patient? Can I put a question on an employment application asking a potential hygienist or assistant if he or she is willing to treat HIV-positive or AIDS patients?
Answer: If a staff member refuses to treat an HIV-positive of AIDS patient merely because of the patient's HIV-positive or AIDS status, there may be a technical violation of the AwDA even if the dentist thereafter renders the treatment. However, the risk of liability for money damages or a fine is probably minimal, because the patient has not incurred any damage. Dentists should be aware that they are subject to liability under the AwDA for the acts or omissions of their employees.
Dentists may ask on employment applications and during employment interviews whether potential employees are willing to treat disabled individuals, including HIV-positive and AIDS patients. There is nothing in the AwDA that prohibits any employer from asking a potential employee whether he or she has any objection to rendering services to disabled individuals.