surgeons surgery operation Photo Credit: shutterstock.com

U.S. District Judge Analisa Torres of the Southern District of New York issued a summary judgment order Wednesday in favor of federal prosecutors and a former patient of a Manhattan plastic surgeon, finding the refusal to perform surgeries on HIV-positive patients was a violation of the U.S. Americans with Disabilities Act and the New York City Human Rights Law.

Dr. Emmanuel Asare, formerly of co-defendant Advanced Cosmetic Surgery of New York, was scheduled to perform gynecomastia surgery on plaintiff Mark Milano in July 2014. Asare asked about Milano’s HIV status, which Milano confirmed was positive. Asare declined to perform the surgery, telling Milano he was not a suitable candidate. According to court records, Asare made similar decisions not to operate based on HIV status in the case of at least two other anonymous patients.

Milano alerted the U.S. Attorney’s Office to the situation and, after an investigation, federal prosecutors brought suit against Asare over claims, under the ADA, that he illegally screened out HIV patients, while also failing to provide reasonable modifications if, in fact, the safety risk Asare claimed was substantiated.

Asare claimed he was protected under ADA because applying the criteria to HIV-positive patients was necessary, as there are potential complications with the antiretroviral drugs such patients may be taking. As Torres notes, there is little guidance available in the U.S. Court of Appeals for the Second Circuit to this line of defense, making it a matter of first impression.

Torres relied on the U.S. Supreme Court’s 1987 decision in School Board of Nassau County v. Arline and a subsequent First Circuit decision that relied on the decision. The circuit found that automatically rejecting a protected individual without considering the individual themselves was a violation of the ADA.

Asare never disputed that potential patients were rejected automatically because of their HIV status, Torres noted, without any individualized inquiry, and was therefore in violation of the ADA. Absent that requisite individualized inquiry, defendants then were unable to proceed with any kind of reasonable modification defense, Torres found.

While granting summary judgment to plaintiffs on both ADA and Human Rights Law claims—any ADA violations also violate the city’s laws—Torres found that the government’s evidence solely targeted Asare’s actions towards HIV-positive patients and no other ADA-protected class. She therefore granted summary judgment for the defendants limiting the government to only those claims.

Torres ordered the parties to file a joint letter informing the court how they wished to proceed by Jan. 10, 2018.

A spokeswoman for the U.S. Attorney’s Office declined to comment.

Private attorney Steven Warshawsky represents the defendants. In a statement provided to the New York Law Journal, Warshawsky said that his client “does not discriminate against persons with HIV” and is disappointed with the decision.

“He is a caring and conscientious physician who considers all safety risks before operating on patients. Indeed, he has performed cosmetic surgery on patients with HIV who he determines are at low risk for complications,” Warshawsky said. “We do not believe that this is what the ADA intended. We will consider all of our legal options going forward.”

Milano was represented by Emery Celli Brinckerhoff & Abady associate Ali Frick, along with co-counsel from the HIV Law Project legal director Armen Merjian. In a statement, Frick said the court’s decision “elevated science and facts over fear and prejudice.”

“Discrimination against people living with HIV remains a pervasive problem,” Frick said. “A doctor cannot hide behind his medical degree to discriminate against patients.”