United States v. Asare

Background

The United States brought an enforcement action under Title III of the Americans with Disabilities Act (ADA), alleging that Emmanuel O. Asare, M.D., and Springfield Medical Aesthetic P.C., doing business as Advanced Cosmetic Surgery of New York, denied cosmetic surgery services to people with disabilities, including HIV. Mark Milano intervened and alleged that the defendants denied him services because of his HIV status, violating the ADA and the New York City Human Rights Law (NYCHRL).

The court had previously ruled on summary judgment that the defendants’ policy of denying services to people taking antiretroviral medication violated the ADA. It denied summary judgment on the Government’s claims concerning J.G. and S.V. because factual disputes remained, and granted the defendants’ motion concerning alleged discrimination against people with disabilities other than HIV. The court then held a bench trial on the remaining claims and damages.

Findings

The court found that the defendants refused cosmetic surgery services to J.G., S.V., and Milano after learning, or believing, that they had HIV. It also found that the defendants tested patients for HIV before surgery without obtaining consent. The court determined that routine preoperative HIV testing was not medically necessary because medical professionals use universal precautions and otherwise healthy people with controlled HIV can be appropriate candidates for cosmetic surgery.

J.G. was living with HIV and taking antiretroviral medication when the defendants cancelled his scheduled surgery after testing him without consent. S.V. was mistakenly told that he had HIV, his procedure was cancelled, and he was sent home while still sedated; later testing confirmed that he did not have HIV. Milano was told that the practice had a policy of never performing procedures on patients with HIV. The court credited the testimony of J.G., S.V., Milano, Lisa Frederick, and the neutral expert Timothy Wilkin, while rejecting key portions of Dr. Asare’s testimony.

ADA Liability

The court held that the defendants applied two discriminatory policies. First, they denied services to people living with HIV who were taking antiretroviral medication. Second, they used preoperative HIV testing to screen out anyone living with, or believed to be living with, HIV, regardless of medication use. The court concluded that these policies imposed eligibility criteria that screened out people with a disability and were not necessary to provide cosmetic surgery services. The court also concluded that the defendants failed to make reasonable modifications, including individualized assessments of patients and appropriate accommodations.

The court held that the Government proved the ADA violations by a preponderance of the evidence, meaning that the violations were more likely than not to have occurred. Because the ADA violation established discrimination under the NYCHRL as well, Milano was entitled to damages under that law.

Damages and Other Relief

The court awarded $125,000 in compensatory damages to each of J.G. and S.V. under the ADA and $125,000 to Milano under the NYCHRL for emotional distress. The court found that each person experienced severe psychological and emotional consequences from the defendants’ conduct.

The court also imposed a $15,000 civil penalty payable to the United States, calculated as $5,000 per victim. It found the penalty appropriate to vindicate the public interest, even though the defendants argued that their conduct was not intentional or malicious.

The defendants were enjoined from testing every patient to determine whether the patient had HIV and from conducting HIV testing without the patient’s express consent. They were also ordered to establish and follow written policies ensuring compliance with the ADA during patient intake and screening. The court retained jurisdiction to monitor compliance, ordered the Clerk to enter judgment, and closed the case.