Subject: AIDS Cases Prompt a Host of Lawsuits Date: Published: 10/7/87 309 lines Source: WALL STREET JOURNAL. Copyright Dow Jones & Co. Inc. AIDS Cases Prompt a Host of Lawsuits --- A Fear of Contagion Found at the Center Of Many Conflicts --- By Roger Ricklefs Staff Reporter of The Wall Street Journal IN WEST HOLLYWOOD, Calif., an AIDS patient sues Jessica's Nail Clinic for refusing to give him a pedicure. If convicted, the clinic owner could serve up to six months in jail. In Chicago, a woman suing American Airlines claims a ticket agent carrying the AIDS virus bit her in a scuffle over a boarding pass. American offers her $30,000. The woman, seeking $10 million in the suit, declines the offer. In Lexington, Mass., Raytheon Co. decides to appeal a California ruling that it owes back pay to the estate of an AIDS patient whom it refused to reinstate in a job. The patient died nearly three years ago, but the case lives on. The spread of acquired immune deficiency syndrome is generating scores of legal cases like these. In the nation's courts, society's conflicts over AIDS finally come down to the nitty-gritty of indictments, judgments and money. Some 150 cases involve complaints of AIDS-virus contagion through blood transfusions. Many other cases, involving alleged employment discrimination and refusal to provide services, pit businesses against AIDS patients. And day by day, the caseload grows. "I get dozens of calls every week from people wanting help," says Benjamin Schatz, director of the AIDS civil-rights project of California-based National Gay Rights Advocates, a nonprofit law firm. "If we took all the cases, we would have 1,000 cases a year at least." More than in almost any other field, lawyers say, suits arise from misunderstandings of law and medical risk. "Three-quarters of the cases originate out of misinformed fears," says Harvey Grossman, legal director of the Civil Liberties Union's Illinois branch, who spends about half his time on AIDS cases. With existing laws covering most incidents, Mr. Grossman says, "we have negotiated away 80% of our AIDS cases." But some issues may go unresk,{ed until the Supreme Court rules on them. For instance, lawyers say mandatory testing to detect the AIDS virus raises constitutional issues of unreasonable search, due process, invasion of privacy and equal protection. In one way or another, a huge share of the cases involve fear of contagion. Doctors overwhelmingly believe that AIDS isn't spread through casual contact. But enough doubt remains in some people's minds about possible contagion through bites, spitting or means yet undiscovered to keep fears alive and lawyers busy. The fear of contagion takes many forms. Here are some of the issues and types of cases that judges increasingly confront: EMPLOYMENT Lawyers say the largest number of cases involve jobs. When AIDS struck Vincent Chalk, the Orange County, Calif., school system fretted that the teacher might endanger his students' lives. Its solution was to transfer Mr. Chalk to office duties writing grant proposals. But the infuriated instructor, armed with doctors' statements that he posed no health threat, quickly sued to get back in the classroom. "My heart is in teaching, and I'm strong enough to work," says Mr. Chalk, who started instructing hearing-impaired children as a Mormon missionary 23 years ago. If "I accepted being shuffled off" to a desk job, he adds, "I would always think I should have stood up for what I believe." Ronald Wenkart, a lawyer for the Orange County school system, says doctors consulted by the school system are far from certain that Mr. Chalk doesn't pose a health hazard to students. Hearings in the case began Sept. 8 in federal district court in Los Angeles. A judge rejected Mr. Chalk's petition for a preliminary injunction to prevent his being moved from the classroom, but he is appealing. AIDS patients -- or their estates -- have already won a number of employment conflicts. Earlier this year, for instance, the California Fair Employment and Housing Commission awarded lost pay and interest to the estate of John Chadbourne, who died of AIDS complications. After Mr. Chadbourne was diagnosed as having AIDS in late 1983, his doctor said he posed no danger to co-workers. But Raytheon placed him on medical leave in early 1984 at partial pay and refused to reinstate him as a quality-control analyst. A Raytheon spokesman says, "Our decision was based on the limited medical evidence at that time and the uncertainty as to whether or not the health and safety of other employees would be threatened." The commission said Raytheon's arguments that AIDS "might in the future be found to be casually transmissible" were "unsupported by any hard evidence." But ruling that Raytheon's "misreading of the medical evidence" wasn't "malicious or oppressive," it declined to award punitive damages. Raytheon has appealed the commission's decision that the company owed Mr. Chadbourne's estate back pay plus interest. In employment cases generally, many state laws prohibiting discrimination against the handicapped also protect AIDS patients. Moreover, the Supreme Court ruled last March that recipients of federal funds couldn't discriminate against people handicapped by contagious diseases unless they posed a real risk of infection to others or couldn't do their work. Though the case at hand involved a tuberculosis patient, it left little doubt that AIDS patients would be protected, says Thomas B. Stoddard, executive director of Lambda Legal Defense and Education Fund, a gay-rights public-service law firm in New York. But the ruling didn't specify whether carriers of the AIDS virus who don't have AIDS itself are protected, and the decision only applies to recipients of federal funds, Mr. Stoddard notes. TESTING Some employers also have invited trouble by giving employees blood tests for the AIDS virus. "The most difficult and most important issue we face is mandatory testing," says Lambda's Mr. Stoddard. "Test results will be used to deny people jobs, services and housing, and will be used against people who are not ill. It is also a prerequisite for quarantine and segregation." The American Federation of Government Employees recently sued the State Department to stop testing employees and job prospects subject to overseas assignment. The department says employees who might get sick shouldn't be sent to areas with inadequate medical facilities. It says it won't hire applicants who test positive but will retain current employees who do so. A federal judge in Washington denied the union's motion for a preliminary injunction against the testing program, which began in January, and dismissed the case. He concluded that AIDS-virus carriers weren't suited for world-wide service and that "every effort was being made to accommodate existing employees found to carry the virus." Lambda Legal Defense, which is representing the union, says the union won't appeal the ruling. But Mr. Stoddard says use and disclosure of test results, as well as mandatory testing itself, can violate laws concerning confidentiality and other issues. Representing a man allegedly tested without his consent, Lambda recently sued Prudential Insurance Co. of America. The suit, filed in federal court in New York City, claims that Prudential told the man the company would run only "standard" blood tests. When the man tested positive for antibodies to the AIDS virus, Prudential denied the insurance, the suit alleges. Later, the suit claims, a Prudential underwriting consultant violated confidentiality obligations by discussing the test results publicly. Without admitting any of the allegations, Prudential says, it resolved the case through an out-of-court financial settlement with the plaintiff. Neither side will disclose terms. DENIAL OF SERVICES Some suits center on claims that AIDS patients were denied various services. Applicable state and local laws vary widely. But in West Hollywood, Calif., the man denied a pedicure is pursuing his case under local civil and criminal anti-discrimination statutes and state civil-rights law. According to his civil suit filed in Los Angeles Superior Court, Paul Glen Jasperson mentioned his AIDS condition within earshot of employees at Jessica's Nail Clinic. Hours later, the clinic telephoned him to cancel the appointment he had just made, citing a scheduling problem, and declined to reschedule him for a pedicure, the suit claims. Among other defenses, the clinic's lawyer, Paul J. Geragos, maintains that toes can bleed during a pedicure and thus pose a real danger. Mr. Jasperson's lawyer, Gloria Allred, charges: "There isn't one documented case in the whole country of a person getting AIDS through giving a pedicure or manicure." As in other AIDS cases, the patient could die before his case comes to trial. Thus, Mr. Jasperson has already put his testimony on videotape. Insurers anxious to avoid future claims attract many denial-of-service complaints. National Gay Rights Advocates and others are currently suing Great Republic Insurance Co., Santa Barbara Calif., for allegedly discriminating illegally against gay men in issuing health insurance. Among other actions, the suit says, the insurer required a special supplementary health questionnaire of single male health-insurance applicants in "occupations that do not require physical exertion," such as antique dealers, interior decorators, consultants, restaurant employees and florists. These questionnaires, since scrapped in favor of a new form given to all health-insurance applicants, aimed only to identify people likely to submit AIDS-related claims rather than homosexuals as such, says James Pritchett Jr., president of Great Republic. The suit is still pending in San Francisco Superior Court. THE MOUTH AS 'WEAPON' Some cases focus on the issue of biting. The Chicago woman alleging that an American Airlines ticket agent with the AIDS virus bit her accuses American in U. S. district court in Chicago, of recklessly hiring a public-service employee who posed "a health or safety risk." American, a unit of AMR Corp., says it will challenge the plaintiff's version of the fight and denies any reckless hiring. To some, the biting issue also raises the novel legal question: Does AIDS make the human mouth a "deadly weapon? " The AIDS virus has been isolated in saliva, albeit in small quantities. A federal court in Minneapolis recently convicted James V. Moore, a federal prison inmate, of assault with a deadly weapon, and sentenced him to an additional five years in prison. The credit-card fraud convict, who has the AIDS virus, was charged with biting two guards. Without the AIDS issue, a simple assault conviction would have cost him no more than three more years behind bars. "I have never had a case like this," says Kevin Lund, Mr. Moore's lawyer, who has filed an appeal. "There is no evidence that AIDS can be transmitted by a human bite, or by saliva for that matter." But other contagion cases involve sexual relations, which clearly can transmit the virus. In St. Paul, Minn., a woman suing the estate of her former fiance -- now dead -- alleges that she contracted the AIDS virus from him. She says he never told her that he was ill with AIDS-related complex, a milder condition than AIDS, but still serious. Lawyers for both sides decline to comment. MEDICAL CARE Fear of contagion pervades cases involving medicine. In Hartford, Conn., three private-duty kidney-dialysis nurses who say they were dismissed for refusing to care for AIDS patients sued Hartford Hospital and an affiliated dialysis concern in state superior court there. One nurse, for instance, said her doctor suggested a change when she became pregnant. But a Hartford Hospital spokesman says: "We are here to treat any and all regardless of their affliction. Otherwise, where would they get their health care? " The medical world also attracts suits based on contracting the AIDS virus through blood transfusions. Because most of these incidents occurred several years ago, before the need to screen blood for the virus became widely recognized, defendants can say they followed all precautions known at the time. Besides, most states have passed legislation that helps protect blood banks against negligence litigation. Thus, lawyers say blood cases generally may prove hard to win. CHILDREN For many people, some of the saddest xxx involve children. Last year, an Atascadero, Calif., school admitted Ryan Thomas to kindergarten even though he had the AIDS virus and had suffered some AIDS-related illness. "Parents kept asking, 'What if he bites? '" recalls school superintendent Anthony Avina. "We kept saying he isn't a biter." But xxx did bite another child's pants leg, the school kept him out of classes for the rest of the school year. His family sued. U. S. District Court Judge Alicemarie H. Stotler ruled that there wasn't any evidence that Ryan posed a significant danger and ordered him readmitted to school this fall. The legal right to a free education and the difficulty of proving a medical threat usually help families win cases like this, lawyers say. Fights over child custody and visitation also generate cases when one of the divorced parents is gay or actually carries the virus. In a Chicago case, a mother got a judge to order that her former husband, who is gay, undergo an AIDS-virus test before the couple's children could visit him in San Francisco. But a second judge vacated the order. "We couldn't find any medical authority who would say that the AIDS virus could be transmitted by casual contact," concedes her Chicago lawyer, Patrick McGann. The parents agreed out of court that the youngsters could visit their father. --- Issues That Give Rise to Conflicts When Lawyers Were Asked: "Should victims of contagious diseases be entitled to federal protection from discrimination? " Yes ............................... 28% No ................................ 52% Not sure .......................... 20% Source: ABA Journal mail poll of 578 lawyers nationwide, October 1986 "Please tell me if you agree or disagree: Insurance companies should be permitted to deny life or health coverage on the basis of a positive AIDS test" Yes ............................... 63% No ................................ 30% Not sure .......................... 7% Source: ABA Journal telephone poll of 601 lawyers nationwide, March 16-26 When the General Public Was Asked: "Do you think employers should test new employees to see if they have the AIDS virus, or don't you think so? " Yes ............................... 42% No ................................ 48% Not sure .......................... 10% Source: Wall Street Journal/NBC News Poll of 2,304 adults nationwide, April 12-14 "Do you think children who have been diagnosed as having AIDS should be allowed to attend school with other children, or don't you think so? " Should be allowed ................. 64% Shouldn't be allowed .............. 24% Not sure .......................... 12% Source: Wall Street Journal/NBC News Poll of 800 adults nationwide, Jan. 4 [This article is made available here by Dow Jones Co. for the personal and non-commercial use of callers to this bbs, in the hope that it will be of some help to those who are suffering from the disease and others who are seeking to help them.]