Plastic Surgeon Denying Care Due to HIV Status Loses Big

Longtime AIDS and gay activist Mark Milano was one of three men who complained they were denied plastic surgery because of their actual or perceived HIV status.
Donna Aceto

A federal judge in Manhattan ruled on August 5 that three men denied plastic surgery by Dr. Emmanuel O. Asare because he believed they were HIV-positive are entitled to the maximum statutory damages available under the Americans With Disabilities Act (ADA) and the New York City Human Rights Law.

US District Judge Analisa Torres ordered Asare to pay each of the men — longtime AIDS activist Mark Milano and two other men identified as J.G., and S.V. — $125,000 and pay a fine to the government of $15,000, as well.

The US Department of Justice — which enforces Title III of the ADA, forbidding unjustified disability discrimination by public accommodations such as medical practices — filed this lawsuit in 2015, consolidating the complaints of the three men. Each had gone to Asare seeking a procedure to remove unwanted body fat from their chests, a common procedure in which the doctor specializes. The doctor rejected all three men when he came to believe — incorrectly in the case of one of them — that they were HIV-positive.

The court found that Asare’s practice was to draw blood several days in advance of the scheduled procedure to determine whether a patient had any condition that would cause him to deny them treatment. J.G. and S.V. both testified they were unaware their blood would be tested for HIV. Asare’s policy was to categorically refuse to perform plastic surgery on HIV-positive people.

J.G., who was on anti-retroviral therapy and had an undetectable viral load, was told by Asare that he would not receive the procedure.

S.V., a single father of two children planning to get married, decided to get the surgical procedure to improve his appearance. When he arrived for the procedure he was sedated but then Asare informed him his blood showed he was HIV-positive and the surgery was off. Asare called a car service for him and sent him home in a sedated state. When he arrived home, S.V. was so woozy he had to crawl up the stairs to his bedroom and slept for hours. Several days later, he got tested and found out, as he thought, that he was not in fact HIV-positive.

Milano also knew that he was HIV-positive but did not indicate this on the intake questionnaire because because he preferred to discuss it in person. In talking about the procedure with Asare, he asked whether the anti-viral medication he was taking could be responsible for the fatty deposits he wanted to have removed. Asare replied that his office was not set up to provide surgery for HIV-positive people and refused to schedule the procedure.

Under the ADA, a public accommodation, including a medical practice, may not deny services to somebody because of a disability, either actual or perceived, unless the disability renders the person unqualified for the service. Judge Torres heard expert testimony that convinced her that being HIV-positive, which is considered a disability under the ADA, was not a disqualification for the procedure. She concluded that Asare’s explanation that it would be dangerous to mix the anesthetic he used with anti-retroviral medication for HIV had no medical basis.

The ADA also prohibits medical testing that would unjustifiably screen out qualified individuals from receiving a service. The medical experts testified that all surgeons are supposed to observe “universal precautions” with patients to avoid exposure to any blood-borne infections — a standard of care actually sparked by the AIDS epidemic. Before then, it was an open secret in the medical profession that many health care professionals were infected with hepatitis B as a result of casual exposure to patients’ blood.

Asare was found to have violated the ADA and the city Human Rights Law by denying services to people with a disability and using medical testing to screen out otherwise qualified people with a disability.

Some of these findings that had been established at earlier stages of the litigation when the focus was on Milano’s discrimination claim. When the Justice Department added the claims regarding J.G. and S.V., the issue of testing came into the case. The effort to establish an appropriate expert on whether the testing violated the ADA delayed the case, one of the reasons it took five years to conclude.

Regarding the damages award, each of the three men credibly testified about the severe emotional distress they suffered, prompting Torres to award the highest amount of damages that can be awarded under the ADA, with consideration to the remedies available under the city Human Rights Law, as well.

Asare could potentially get the damages reduced on appeal to the Second Circuit Court of Appeals, but Torres spent considerable effort in showing how each man was affected by being rejected for the procedure — particularly the bizarre treatment of S.V., who was not HIV-positive, was actually prepped for surgery and sedated by mistake, and then sent home sedated without any follow-up from Asare.

Justice Department attorneys prosecuted the case, but Milano, allowed to intervene as a co-plaintiff, was represented by attorneys Armen Merjian, who has litigated many important HIV-related cases on behalf of Housing Works, and Alison Ellis Frick and Matthew D. Brinckerhoff of Emery Celli Brinckerhoff & Abady, LLP.