Over the last couple of weeks, clients have asked for our advice on how to properly deal with health care providers who are refusing to treat a patient suspected of having Coronavirus. It is well-known that doctors take the Hippocratic Oath to treat patients in need of medical care to the best of their abilities. This Oath state “I swear by Apollo the physician, and Asclepius, and Hygeia and Panacea and all the gods and goddesses as my witnesses, that according to my ability and judgement, I will keep this Oath and this contract: …I will benefit my patients according to my greatest ability and judgement, and I will do no harm or injustice to them.” However, does this Oath require doctors and other health care providers to treat patients who have contagious diseases, such as Coronavirus?
Under common law, a doctor does not have a duty to treat an individual so long as the relationship between physician and patient does not exist. This is referred to as the “no duty” rule. Determining whether a relationship exists, however, is not always easy. It may be established expressly or impliedly. For example, it might result if a doctor’s office schedules someone for an appointment and that person comes to the office for treatment.
Once a relationship is established, generally a doctor has a duty to treat that patient. Moreover, various laws limit a doctor’s right to refuse to provide medical care. One such federal law is the Rehabilitation Act of 1973, which prohibits denying medical care to a disabled person because of his or her disability if that person is in a program actively receiving federal financial assistance. Similarly, the Americans with Disabilities Act (“ADA”) provides broader protection to disabled patients. A disability under the ADA is a physical impairment that substantially limits one or more major life activities, a record of impairment or someone regarded as having an impairment. Various state laws are also implicated and many provide greater protection than the ADA. For example, under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD), a disability is far easier to establish. It covers any “infirmity.”
Under Title III of the ADA, a place of public accommodation cannot deny medical care to an individual because of his or her disability unless the individual poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of practices and procedures.
In Bragdon v. Abbott, 524 U.S. 624 (1998), a dentist refused to fill a cavity of a patient with HIV. The Supreme Court held that the patient had a disability and that the dentist had a duty to treat the asymptomatic patient because he posed no direct threat to his health or safety. Finding that a dentist’s office was a place of public accommodation, the Supreme Court relied upon Section 302 of the ADA, which provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the … services… of any place of public accommodation by any person who …operates a place of public accommodation.” The Court also referenced 42 U.S.C. 12182(b)(3) of the ADA, which limits that right to treatment “where such individual poses a direct threat to the health or safety of others.” According to the Court, “[t]he existence or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based upon medical or other objective evidence.” See School Bd. Of Nassau Cty. v. Arline, 480 U.S. 273, 288 (1987).
The bottom line: doctors and other health care providers in places of public accommodation, such as hospitals, clinics and doctors’ offices, who are provided masks and other protection, must treat patients they suspect have coronavirus unless there remains objective proof that the patient still poses a direct threat to their health or the health or safety of others.
As the numbers of Coronavirus patients exponentially increase, it would be prudent for healthcare providers, including practices, facilities, physicians and non-physician providers to adopt and implement a policy and practice that complies with the above laws as well as laws governing employee rights/employer obligations, so as to avoid pitfalls that could result in costly litigation and negative publicity.
Healthcare Litigation Co-Chairs, Mohamed H. Nabulsi, Esq., Steven I. Adler, Esq., and Dennis J. Alessi, Esq., are experienced in advising clients on patient care and employment issues in the medical practice/healthcare facility environments, and can advise you in this area. They can be reached at mnabulsi@lawfirm.ms, sadler@lawfirm.ms and dalessi@lawfirm.ms.