Home E-Weekly January 9, 2018

Did Surgeon Discriminate Against HIV Patient?

Published: January 8, 2018

VIOLATION A judge said Dr. Emmanuel Asare's refusal to treat a patient based solely on HIV history went against the Americans with Disabilities Act.

A New York surgeon was in violation of the U.S. Americans with Disabilities Act (ADA) and the New York City Human Rights Law when he refused to perform breast reduction surgery on a man after learning he was HIV positive, court records show.

U.S. District Judge Analisa Torres issued the summary judgment order last week and sided with federal prosecutors and former patient Mark Milano, who brought a discrimination suit against Emmanuel Asare, MD, a former surgeon with Advanced Cosmetic Surgery of New York, which was also named in the suit.

The lawsuit concerned an incident in July 2014 when Mr. Milano went for a consultation for a gynocomastia procedure at Dr. Asare's office. During the consultation, Mr. Milano told the doctor that he had HIV, resulting in Dr. Asare declining to perform the surgery, court records show.

Before dismissing Mr. Milano, Dr. Asare allegedly also cancelled surgeries on 2 other patients after he suspected they might be HIV positive, court records show.

Mr. Milano filed a complaint about Dr. Asare with the U.S. Department of Justice, prompting federal prosecutors to investigate both Dr. Asare and Advanced Cosmetic Surgery of New York.

During the investigation, prosecutors asked Dr. Asare about his policy regarding HIV-positive patients, to which the doctor reportedly replied, "Any condition that a patient has that to the best of my knowledge will potentially have any negative effect on the outcome of the surgery or recovery process will disqualify the patient," the order said.

Dr. Asare went on to include a history of HIV, along with obesity, a history of DVT and a recent heart attack as conditions that would disqualify a patient. According to the order he added, "I have some qualifying and disqualifying criteria based on my comfort level and how much risk or stress I am willing to take! I think that is my right as a cosmetic surgeon!"

Prosecutors filed a complaint against Dr. Asare in 2015 based on violation of the ADA. Mr. Milano intervened shortly thereafter, accusing Dr. Asare of violating the ADA and the Human Rights Law, the order said.

Judge Torres's decision rested on Dr. Asare's admission that he had rejected the patients based on the fact that they were taking antiretroviral drugs, without investigating each patient's case further.

"Defendant's blanket refusal without individualized inquiry is insufficient to pass muster under the ADA," the judge wrote.

Anna Merriman

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