50 F.3d 1261 (4th Cir. 1995), 94-1462, Doe v. University of Maryland Medical System Corp.

Docket Nº:94-1462.
Citation:50 F.3d 1261
Party Name:9 A.D.D. [PG1048 John DOE, Plaintiff-Appellant, v. UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION, et al., Defendants-Appellees.
Case Date:April 03, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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50 F.3d 1261 (4th Cir. 1995)

9 A.D.D. [PG1048

John DOE, Plaintiff-Appellant,




No. 94-1462.

United States Court of Appeals, Fourth Circuit

April 3, 1995

Argued Jan. 30, 1995.

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ARGUED: Trent Mitchell Kittleman, Jeanine Marie Worden, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for appellant. Peter Edward Keith, Gallagher, Evelius & Jones, Baltimore, MD, for appellees. ON BRIEF: Julie Ellen Squire, Gallagher, Evelius & Jones, Baltimore, MD, for appellees.

Before WILKINSON, WILKINS, and LUTTIG, Circuit Judges.

Affirmed by published opinion. Judge WILKINS wrote the opinion, in which Judge WILKINSON and Judge LUTTIG joined.


WILKINS, Circuit Judge:

John Doe, M.D. (Dr. Doe) appeals a decision of the district court granting summary judgment to University of Maryland Medical System Corporation (UMMSC) 1 on his claims under Sec. 504 of the Rehabilitation Act, 29 U.S.C.A. Sec. 794 (West Supp.1994), and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. Sec. 12132 (West Supp.1994). The district court reasoned that Dr. Doe, who is a carrier of the human immunodeficiency virus (HIV), is not an otherwise "qualified individual" with a disability. Because we agree with the district court that Dr. Doe poses a significant risk to patients at UMMSC that cannot be eliminated by reasonable accommodation, we affirm. 2



The material facts are undisputed. When the events leading to this lawsuit began to unfold, Dr. Doe was a neurosurgical resident at UMMSC in the third year of a six-year training program. In January 1992, Dr. Doe was stuck with a needle while treating an individual who may have been infected with HIV, the virus which causes Acquired Immune Deficiency Syndrome (AIDS). 3 Dr. Doe subsequently tested positive for HIV. 4 Upon learning that Dr. Doe was HIV-positive, UMMSC suspended him from surgery pending a recommendation of its panel of experts on blood-borne pathogens. The panel recommended that Dr. Doe be allowed to return to surgical practice with the exception of certain specific procedures involving the use of exposed wire, which the panel deemed to involve too great a risk of transmission of HIV to patients. In addition, the panel suggested that certain restrictions be placed on Dr. Doe, including requirements that he rigorously follow infection control procedures; that if Dr. Doe's blood ever contacted a patient's non-intact skin he notify his supervisor, UMMSC's Infection Control Office, and the patient; and that Dr. Doe provide a specimen of his blood so that in the event a patient claimed to have contracted HIV from Dr. Doe, the DNA of the two viruses could be compared. However, the panel did not recommend that Dr. Doe be required to obtain the informed consent of his patients before performing surgical procedures.

After careful consideration and further study, senior administrators at UMMSC rejected the recommendations of the panel. Instead, UMMSC permanently suspended

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Dr. Doe from surgical practice and offered him alternative residencies in non-surgical fields. After Dr. Doe refused the alternative residencies and insisted that he be reinstated with full surgical privileges, UMMSC terminated him from its residency program.


HIV is a fragile virus that may be transmitted only through certain bodily fluids, including blood. One way in which HIV may be transmitted is through blood-to-blood contact with infected blood. Thus, it is possible that a patient could contract HIV from a surgeon who is HIV-positive. For example, a surgeon might sustain a cut from a sharp instrument which causes him to bleed directly into a patient's open wound during an invasive surgical procedure. Or, a surgeon might be stuck with a needle which is then used on a patient to start an intravenous line or to suture a wound. 5

Although estimates of the risk of surgeon-to-patient transmission vary, there is general agreement among public health officials that the risk is small. For example, the Centers for Disease Control and Prevention (CDC) has estimated that the risk to a single patient from an HIV-positive surgeon ranges from .0024% (1 in 42,000) to .00024% (1 in 417,000). Centers for Disease Control, U.S. Dep't of Health & Human Servs., Open Meeting on the Risks of Transmission of Blood-borne Pathogens to Patients During Invasive Procedures (Feb. 21-22, 1991) (statement of Dr. David Bell, Centers for Disease Control). However, the CDC also estimated that the cumulative risk of transmission by an HIV-positive surgeon during the course of his career ranges from .8%-8.1%. Id.

In reaching its decision to terminate Dr. Doe, UMMSC considered recommendations issued by the CDC regarding HIV-positive health care workers (HCWs). See Centers for Disease Control, U.S. Dep't of Health & Human Servs., Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures, 40 Morbidity & Mortality Weekly Report 1, 3-4 (July 12, 1991) (CDC Recommendations). In light of its determination that the risk of HCW-to-patient transmission of HIV is at most a small one, the CDC recommended that HIV-positive HCWs should not be barred from performing most surgical procedures. See id. at 5. Instead, the CDC recommended strict adherence to "universal precautions" for infection control. Id. These precautions include hand-washing, wearing of protective barriers such as gloves and masks, and care in the use of needles and other sharp instruments. Id. Provided that the universal precautions are followed, the CDC concluded that "[c]urrently available data provide no basis for recommendations to restrict the practice of HCWs infected with HIV ... who perform invasive procedures." Id.

However, the CDC distinguished between the large class of invasive procedures (ranging from insertion of an intravenous line to most types of surgery) and a more limited class of "exposure-prone" procedures, i.e., those posing a greater risk of percutaneous (skin-piercing) injury to the surgeon. Although the CDC did not attempt to specifically identify exposure-prone procedures, it did provide a general definition of the term:

Characteristics of exposure-prone procedures include digital palpation of a needle tip in a body cavity or the simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site. Performance of exposure-prone procedures presents a recognized risk of percutaneous injury to the HCW, and--if such an injury occurs--the HCW's blood is likely to contact the patient's body cavity, subcutaneous tissues, and/or mucous membranes.

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Id. at 4. The CDC further recommended that individual health-care organizations should identify which procedures performed at their facilities are exposure prone, and should determine whether, and under what circumstances, HIV-positive HCWs should perform such procedures. Id. at 5 & n.*. UMMSC determined that most or all of the procedures Dr. Doe would perform as a neurosurgical resident fit within the CDC's definition of exposure-prone procedures and that Dr. Doe should, consistent with the CDC Recommendations, be prevented from performing them.

UMMSC also considered a study of percutaneous injuries to HCWs during surgical procedures (the Tokars study), which concluded that such injuries are common, occurring in approximately 6.9% of all surgeries. The Tokars study also found that "recontacts"--contact with a patient's tissues from an instrument that had previously injured an HCW--were common, particularly when suturing a wound. 6 Based on this study, UMMSC concluded that a very real possibility existed that Dr. Doe could be injured during a surgical procedure and that patients could thereby be exposed to his blood.

Shortly after he was terminated, Dr. Doe filed this lawsuit claiming that UMMSC had discriminated against him in violation of Sec. 504 of the Rehabilitation Act, Title II of the ADA, and the Equal Protection Clause of the Fourteenth Amendment. Dr. Doe also alleged retaliation in violation of the Rehabilitation Act and the ADA, breach of contract, and invasion of privacy. He requested injunctive relief, a declaratory judgment that UMMSC had violated the Rehabilitation Act and the ADA, and compensatory and punitive damages. In an interlocutory order, the district court dismissed Dr. Doe's prayers for compensatory and punitive damages under the Rehabilitation Act and Title II of the ADA and also dismissed his retaliation claims. After extensive discovery, the parties moved for summary judgment.

The district court granted summary judgment to UMMSC, concluding that as a matter of law Dr. Doe was not entitled to relief under the Rehabilitation Act, the ADA, and the Equal Protection Clause. The district court also dismissed without prejudice Dr. Doe's state-law claims for breach of contract and invasion of privacy and denied his motion to amend his complaint.


Dr. Doe primarily argues that the district court erred in granting summary judgment to UMMSC on his claims under Sec. 504 of the Rehabilitation Act and Title II of the ADA. Section 504 of the Rehabilitation Act, 29 U.S.C.A. Sec. 794, 7 and Title II of the ADA, 42 U.S.C.A. Sec. 12132, 8 prohibit discrimination against an otherwise...

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