HEALTH
Surgeon Denying Care Due to HIV Status Loses Big
Fed court awards maximum damages to three men rejected by Dr. Emmanuel O. Asare
BY ARTHUR S. LEONARD
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 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 identifi ed as J.G., and S.V. —
$125,000 and pay a fi ne to the government
of $15,000, as well.
The US Department of Justice —
which enforces Title III of the ADA,
forbidding unjustifi ed disability
discrimination by public accommodations
such as medical practices
— fi led 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 one cas
— that they were HIV-positive.
The court found Asare’s practice
was to draw blood several days
in advance of a procedure to determine
whether a patient had a
condition that would cause him to
deny them treatment. J.G. and S.V.
both testifi ed they were unaware
their blood would be tested for HIV.
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.
Asare’s policy was to categorically
refuse to treat HIV-positive people.
J.G., who was on anti-retroviral
therapy with 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
DONNA ACETO
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 his anti-viral
medication could be responsible
for the fatty deposits he wanted to
have removed. Asare replied that
his offi ce 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
unqualifi ed for the service. Judge
Torres heard expert testimony
that convinced her that being HIVpositive,
which is considered a disability
under the ADA, was not a
disqualifi cation 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 unjustifi -
ably screen out qualifi ed individuals
from receiving a service. The
medical experts testifi ed 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
qualifi ed people with a disability.
Some of these fi ndings 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
fi ve years to conclude.
Regarding the damages award,
each of the three men credibly testifi
ed 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 HIVpositive,
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.
got smut?
WANTED: Vintage Male Erotica
Magazines
Photos
Ephemera
Books
Comix
Etc…
50s, 60s, 70s & 80s – Collections Bought
VMEBuyer@gmail.com
August 27 - September 9,24 2020 | GayCityNews.com
link
/GayCityNews.com
link
