Bragdon v. AbbottóFirst Circuit Rules
on Direct Threat Defense to ADA Claim

By Ronald Turner

Sydney Abbott was infected with HIV, but asymptomatic, i.e., had not yet developed symptoms related to or caused by the HIV infection. She sued her dentist Dr. Randon Bragdon under the Americans with Disabilities Act (ADA) after he refused to fill her cavity in his office because of her HIV infection. He offered to fill her cavity at a hospital with the additional hospital costs to be paid by Ms. Abbott. In June 1998, the Supreme Court held in Bragdon v. Abbott that an individual who is HIV positive but asymptomatic has a disability within the meaning of, and is covered by, the ADA. For a more detailed discussion of the Courtís ruling, see Bragdon v. Abbott -- Supreme Court Decision Addresses Application of Americans with Disabilities Act to Individuals with HIV. The Court remanded the case to the First Circuit for reconsideration of certain evidence relative to the question whether the plaintiffís HIV infection posed a direct threat to the health or safety of others.

The Supreme Court was particularly concerned that the First Circuitís earlier ruling in the case may have mistakenly relied on the Centers for Disease Controlís 1993 Dentistry Guidelines and the American Dental Associationís 1991 Policy on AIDS, HIV Infection and the Practice of Dentistry. In the Courtís view, the CDC Guidelinesí recommendation that universal precautions are the best way to prevent HIV transmision did not necessarily imply that additional risk-reduction measures were desirable or that routine dental care for individuals with HIV was safe. The Court also noted that it was not clear the extent to which the American Dental Associationís Policy was based on that associationís assessment of dentistsí ethical and professional duties rather than on a scientific assessment of risk. In addition, the Court asked the First Circuit to reconsider Dr. Bragdonís argument that as of September 1, 1994 the CDC had identified seven dental workers with possible occupational transmission of HIV.

On December 29, 1998 the First Circuit reaffirmed that Dr. Bragdonís refusal to treat Ms. Abbott in his office violated the ADA and found no evidence supporting his direct threat defense. See Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998). The court noted that the text of the CDCís 1993 Dentistry Guidelines was an update of earlier versions in which the CDC had indicated that universal precautions eliminated the need for additional precautions and were effective in preventing the transmission of HIV, hepatitis, and other infectious diseases. Thus, the court concluded, the 1993 Guidelines constituted "competent evidence that public health authorities considered treatment of the kind Ms. Abbott required to be safe, if undertaken using universal precautions." As for the American Dental Associationís 1991 Policy, the First Circuit determined that the policy had been drafted by that associationís Council on Scientific Affairs (comprised of dentists and a staff of professional experts and consultants) and not by a separate council responsible for the drafting of ethical policies. For those reasons, the court was confident that it was appropriate to rely on the Policy and the CDC Guidelines.

The First Circuit then considered Dr. Bragdonís evidence concerning the seven cases of possible HIV transmission from patients to dental workers. The First Circuit noted (as had the Supreme Court) that the CDC had marked cases as involving possible occupational transmission if "a stricken worker, who had no other demonstrated opportunity for infection, simply failed to present himself for testing after being exposed to the virus at work." Because that definition of "possible" had been made public and had been explained in two scientific articles prior to Ms. Abbottís September 1994 visit to Dr. Bragdonís office, the court concluded that Dr. Bragdon could not have reasonably regarded the risk of treating Ms. Abbott to be significant.

In further support of his direct threat defense, Dr. Bragdon pointed to a CDC report of 42 documented cases of occupational transmission of HIV to health-care workers. As none of those 42 individuals were dental workers, the court held that this evidence was not sufficient absent a documented showing that the risk to dentists was comparable to the risk to other health-care workers.

The First Circuitís decision is significant in that the court recognized the work and views of the CDC and the American Dental Association on the subjects of safety, risk assessment, and the utilization of universal precautions in treating HIV-positive dental patients. Moreover, the courtís rejection of Dr. Bragdonís direct threat defense demonstrates that the denial of services by a provider violates the ADA when the refusal of treatment is not based on scientific evidence establishing a significant risk of transmitting HIV. Whether such evidence can be produced in future cases was not foreclosed by the First Circuit: "we caution future courts to consider carefully whether future litigants have been able, through scientific advances, more complete research, or special circumstances, to present facts and arguments warranting a different decision."