Glanz v. Vernick

In 1989, plaintiff’s decedent, Raymond Vadnais brought this suit against defendants, Dr. Vernick and Beth Israel, alleging discrimination in violation of Section 504 of the Rehabilitation Act of 1973. Mr. Vadnais claimed that Dr. Vernick, an employee of the Beth Israel’s Ear Nose and Throat Clinic, refused to perform elective ear surgery on him because Mr. Vadnais was HIV positive. Mr. Vadnais claimed to have suffered severe pain in his ear that was prolonged as a result of the defendant’s refusal to treat him. In 1990, Mr. Vadnais died of AIDS-related illnesses. Plaintiff, the executor of the estate of Mr. Vadnais, maintained this suit to seek compensatory damages.

In 1986, Dr. Vernick treated Mr. Vadnais for severe ear pain. In 1987, Dr. Vernick diagnosed Mr. Vadnais with a perforation and recommended surgery. After Mr. Vadnais had agreed, Dr. Vernick learned of his HIV status and informed him he would not perform the operation. Mr. Vadnais’s pain persisted until another physician performed the surgery.

The Court examined whether the defendants unlawfully discriminated against Mr. Vadnais by refusing to perform surgery because of his handicap in violation of Section 504 of the Rehabilitation Act.

The Court began its analysis by assessing whether Beth Israel qualifies as a “program or activity receiving Federal financial assistance” within the meaning of Section 504 by virtue of the fact that it receives Medicare and Medicaid payments. The Court held that it does, based on legislative history that established that Medicare and Medicaid were intended to constitute federal financial assistance for the purpose of Title VI, and that the scope and effect of Section 504 were intended to be identical to those of Title VI.

The Court then analyzed the argument that Beth Israel cannot be held liable for the actions of its doctors. Here, the Court ruled that it is appropriate to hold Beth Israel liable for the actions of medical staff in complying with the Rehabilitation Act, even without a finding of power or control. In reaching this conclusion, the Court noted that the question of vicarious liability depended on whether the hospital exercised any power or control over the conduct of the physician. Plaintiff presented evidence that the hospital did exercise control over its physicians with an AIDS coordinator and through the use of directives. The Court also cited Patton v. Dumpson, 498 F.Supp. 933, 942–44 (S.D.N.Y.1980), for its application of respondeat superior to Section 504 and discussion of the strong public policy reasons that justified imposing vicarious liability on employers for discriminatory actions.

Next, the Court determined whether Dr. Vernick could be held personally liable for discriminating against Mr. Vadnais as an employee of Beth Israel’s federally funded program. Here, the Court held that Dr. Vernick could not be held liable. The Court reached this decision after weighing the Supreme Court’s decision in Grove City College  which indicated that the application of Section 504 must be limited to to the relevant program receiving federal funds in the form of Medicare or Medicaid payments. The Court agreed with the Court in Paralyzed Veterans which stated that by limiting coverage to federal funding recipients, Congress imposed the obligation of Section 504 upon those who are in a position to accept or reject those obligations. The Court held that in his resident teaching position, Dr. Vernick was not in such a position.

The Court also addressed the defendants’ argument that it was proper for a doctor to consider a patient’s handicap in determining whether a patient is qualified for surgery and that Mr. Vadnais was therefore not “otherwise qualified” for elective ear surgery. Here, the Court held that the defendants cannot be faulted for considering Mr. Vadnais’s handicap in determining whether he was “otherwise qualified” for surgery, citing the Supreme Court’s decision in School Bd. v. Arline, 480 U.S. 273, 287–89, 107 S.Ct. 1123, 1130–31, 94 L.Ed.2d 307 (1987). The Court agreed that the “otherwise qualified” determination requires inquiry and appropriate findings of fact. The Court finds that in this case, the facts concerning the risks of surgery are in dispute.

The Court concluded that because the receipt of Medicare and Medicaid payments brings Beth Israel within the scope of Section 504 and because there are genuine issues of material fact surrounding the “otherwise qualified” inquiry, summary judgement on the Section 504 claim was inappropriate. Defendant Dr. Vernick’s motion for summary judgement was allowed.

“The defendants do not dispute that HIV-positive status is a “handicap” within the meaning of the Act. In fact, several district courts and the Department of Justice have found that it does qualify.” Glanz v. Vernick, 756 F. Supp. 632, 635 (D. Mass. 1991)

“Defendants also assert that the alleged discrimination did not occur in a federally funded program because the procedure that Mr. Vadnais underwent was an elective procedure, and elective surgery is not covered by Medicaid. Whether the particular procedure is covered, however, is irrelevant. If the ENT Clinic is a program or activity for the purposes of § 504, then it cannot discriminate against any handicapped individuals, regardless of whether they receive Medicaid benefits or not.” Glanz v. Vernick, 756 F. Supp. 632, 636 (D. Mass. 1991)

“If Dr. Vernick is to be held personally liable in this case, then, it must be solely on the basis of his participation in Beth Israel's federally funded program.” Glanz v. Vernick, 756 F. Supp. 632, 637 (D. Mass. 1991)

“While it can be argued that Dr. Vernick can elect not to work at Beth Israel, he cannot be held to the requirements of § 504 for choosing to work at a federally funded hospital any more than a commercial airline can be subjected to its provisions for choosing to operate out of federally funded airports.” Glanz v. Vernick, 756 F. Supp. 632, 637 (D. Mass. 1991)