714 F.Supp. 1377 (E.D.La. 1989), Civ. A. 86-4235, Leckelt v. Board of Com'rs of Hosp. Dist. No. 1

Docket Nº:Civ. A. 86-4235
Citation:714 F.Supp. 1377
Party Name:Leckelt v. Board of Com'rs of Hosp. Dist. No. 1
Case Date:March 15, 1989
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana
 
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Page 1377

714 F.Supp. 1377 (E.D.La. 1989)

Kevin LECKELT

v.

BOARD OF COMMISSIONERS OF HOSPITAL DISTRICT NO. 1, et al.

Civ. A. No. 86-4235.

United States District Court, E.D. Louisiana.

March 15, 1989

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Lambda Legal Defense and Educ. Fund, R. James Kellogg, Trial Atty., New Orleans, La., for Kevin M. Leckelt.

William P. Quigley, General Counsel, ACLU of Louisiana, The Advocacy Center for the Elderly and Disabled, Maureen O'Connell, James E. Comstock-Galagan, Ruth Colker, ACLU of Louisiana, Tulane University School of Law, New Orleans, La., Nan D. Hunter, Judith Levin, Staff Attys., American Civil Liberties Union Foundation, New York City, for plaintiff.

Watkins & Walker, William S. Watkins, Ann M. Barker, Trial Attys., Houma, La., Keck, Mahin & Cate, K. Bruce Stickler, Andrew B. David, Mark D. Nelson, Chicago, Ill., Kullman, Inman, Bee & Downing, Elmer E. White, III, Trial Atty., New Orleans, La., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PATRICK E. CARR, District Judge.

Plaintiff, Kevin Leckelt, brought this action against defendants, Board of Commissioners of Hospital District No. 1, who operate and govern the Terrebonne General Medical Center (TGMC) in Houma, Louisiana; the individual commissioners, namely, Pearl Bonvillain, Elward Brady, Phillip Cooper, Jimmy Dagate, Dr. Richard Landry, Dr. Glenn Manceaux, J.B. Marceaux, Chester Morrison, Dr. Mae Ellen Terrebonne, Rev. Craig Rinker and Donald Verrett; Alex Smith, Executive Director of TGMC; Mable Russell Michel, Director of Nursing for TGMC; Gustavia Growe, Infection Control Nurse; and William Miller, Director of Human Resources for TGMC. The plaintiff claims that defendants have violated his rights secured by Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,

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the Louisiana Civil Rights for Handicapped Persons Act, R.S. 46:2251, et seq., the Fourth and Fourteenth Amendments to the United States Constitution and the Constitution of Louisiana. Plaintiff alleges that defendants illegally and unconstitutionally singled him out by requiring that he divulge medical information about his human immunodeficiency virus (HIV) status, suspended him pending disclosure of the information, and discharged him when he refused to provide the information.

Trial without a jury commenced on July 25, 1988. Additional evidence was taken on December 1, 1988 pursuant to the Court's order granting defendants' motion to reopen. After considering the pleadings, the testimony of the witnesses, the documents in evidence, and the law applicable to this case, the Court makes the following findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure.

The Court has jurisdiction in this matter pursuant to Title 28 U.S.C. § 1331 and 1343(a)(3).

Under nationally followed guidelines hospitals may have to modify the duties of employees with certain infectious diseases, including HIV. In order to implement these guidelines most effectively, a hospital may need to require medical testing for an employee whom it learns has a high medical risk of having such diseases. Plaintiff was a licensed practical nurse whose duties came within these guidelines; when it became apparent that plaintiff had such a medical risk, the hospital asked him to provide it with HIV test results in order to determine what reasonable accommodation, if any, may be required. Plaintiff refused and, thus was terminated for insubordination. Because a hospital has a right to require such testing in order to fulfill its obligation to its employees and to the public concerning infection control and health and safety in general, plaintiff's employer was justified in terminating him.

INFECTION CONTROL

An important function within any health care facility is infection control, which is concerned with preventing the spread of disease, either from employees to patients or from patients to employees. Directed to this end, health care facilities, such as TGMC, have established infection control departments which administer infection control policies by promulgating a set of procedures for health care workers to follow, making those procedures known, and enforcing them. The Center for Disease Control (CDC) has established guidelines which have become the standard for institutions in maintaining infection control in health care facilities. One such guideline has been to establish a system by which hospitals report infections among its patients and employees. This recommendation has also been adopted by the American Hospital Association (AHA).

At TGMC, Gustavia Growe was the infection control practitioner who was responsible for overseeing the enforcement of infection control procedures in the hospital. TGMC did not have a specific written policy concerning HIV infection or AIDS, but had infection control procedures regarding communicable and infectious diseases which would encompass HIV or AIDS. The purpose of these policies was to "insure that employees received proper and necessary medical treatment to prevent serious prolonged illnesses, to protect both patients and employees from the possibility of contracting infectious diseases from employees who have a communicable disease, and to provide a safe environment and safeguard the health of all patients and employees." To this end, TGMC's infection control policies required employees to report any infectious or communicable disease to employee health service. Culture and sensitivity testing of employees was to be conducted where indicated (for example exposure to TB, hepatitis or syphilis). Employee test results were evaluated by the employee health nurse and consultation conducted with the individual employee's physician. Any employee found to have a communicable disease was required to receive clearance from his physician prior to returning to active employment. While an employee was absent from work due to an

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infectious disease, he was paid sick time benefits. Working restrictions were placed on employees as the disease indicated, including reassignment to areas not associated with direct patient care. Infectious employees allowed to work in direct patient care were required to scrupulously follow infection control procedures to decrease potential risk to others. Periodic re-evaluation of the health of active duty personnel was to be conducted as it related to their work, as well as evaluation as required by their symptoms or exposure to an infectious hazard. (Defendants Ex. D-3.1 through D-4.3 and D-9).

TGMC's employee handbook stated that employees committing serious infractions of TGMC policy were subject to immediate termination, insubordination being listed as a serious offense. Plaintiff was given an employee handbook when he began employment at TGMC and signed a statement that he had read and understood TGMC's policies contained in the employee handbook.

ACQUIRED IMMUNODEFICIENCY SYNDROME

Extensive expert medical testimony was presented in this case concerning the human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS). The human immunodeficiency virus or HIV is a retrovirus that attacks white blood cells (T-lymphocytes) in the human blood. This virus attacks the immune system and damages the ability of the infected person to fight off other diseases. The individual then becomes significantly more susceptible to opportunistic infections. 1 AIDS is the presence of HIV coupled with the diagnosis of one or more opportunistic infections which, although usually harmless to a healthy person, thrive on the suppressed immune system of a person with AIDS. A diagnosis of dementia or wasting, together with the presence of HIV, also constitutes AIDS. There are many less severe symptoms of HIV infection that do not amount to AIDS, but that nonetheless indicate that HIV has in some way compromised the person's immune system.

Once a person has become infected with HIV, he may not show any signs of illness. Such a person does not have AIDS but is a carrier of HIV. It is impossible to determine when an HIV positive individual will become symptomatic. Symptoms of HIV infection include fever, swollen lymph nodes, loss of weight, decreased appetite, diarrhea, and night sweats. It is presently estimated that between 50% and 70% of all HIV positive carriers will eventually show symptoms of the AIDS disease. Some portions of the medical community believe, however, that recent studies show that the number of HIV carriers who become symptomatic will eventually reach 100%. Another possible effect of an HIV infection is neurological alterations such as memory loss, behavioral changes, progressing to inability to care for oneself and dementia. Some few individuals who exhibit neurological effects of AIDS do not have other observable physical effects of the disease. Neurological effects of AIDS consist of slow, gradual changes in the individual's brain functions.

There is no known cure for AIDS, nor has a vaccine been developed to prevent it. Extensive research continues to be conducted on the epidemiology of HIV since its discovery in 1980. A new drug, AZT, although not a cure, has helped decrease the number of opportunistic diseases contracted by a patient with HIV, thus, prolonging the lives of these individuals. However, at the present time, a person diagnosed with AIDS is terminal.

The medical consensus is that HIV is primarily transmitted in one of three ways: intimate sexual contact, exposure to blood or blood components, and from mother to fetus in utero or through breast milk. HIV cannot be transmitted by casual contact.

The Center for Disease Control (CDC) has reported three cases in which health care workers have become infected with

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HIV through unexplained or unexpected...

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