The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III
Plaintiff, William R. Toney, is infected with the human immunodeficiency virus ("HIV"), the virus which causes acquired immunodeficiency syndrome ("AIDS"). He alleges that defendant physicians and defendant U.S. Healthcare, Inc., the health maintenance organization to which he belongs, have discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101. The case is now before the court on motions to dismiss or for summary judgment filed by defendant Dr. Luanne Thorndyke and defendant U.S. Healthcare.
In February of 1991, plaintiff's physician, Dr. Harvey Spector, diagnosed plaintiff as infected with HIV. Plaintiff alleges that Dr. Spector refused to continue to treat him after making this diagnosis.
Plaintiff contacted U.S. Healthcare to find a new physician who was willing to treat an HIV positive patient. U.S. Healthcare provided plaintiff with a list of participating physicians to contact.
In March of 1991, plaintiff obtained an appointment with Dr. George Bradford, who allegedly also refused to treat plaintiff once he learned of plaintiff's HIV status. Dr. Bradford did, however, refer plaintiff to Dr. Van Uidert, an infectious disease specialist, on a number of occasions.
Plaintiff continued to contact U.S. Healthcare to try to locate a primary care physician, rather than a specialist, who would agree to care for him. Through a health care referral system unaffiliated with U.S. Healthcare, plaintiff obtained an appointment with Dr. Luanne Thorndyke. Dr. Thorndyke accepted plaintiff as a patient in October of 1991 and treated him until July of 1992, when plaintiff voluntarily left her care to begin treatment with Dr. Peter Binion.
Dr. Binion treated plaintiff from July of 1992 until October of 1992, when Dr. Binion stopped accepting U.S. Healthcare patients. Plaintiff admits he was able to secure another physician after again contacting U.S. Healthcare, and apparently, plaintiff has maintained his relationship with this physician without incident.
Plaintiff has asserted a claim under the Rehabilitation Act against Dr. Thorndyke.
Section 794(a) of the Rehabilitation Act, more commonly referred to by its original section number, § 504, provides that
no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .
Both plaintiff and Dr. Thorndyke have submitted affidavits in support of their positions regarding her motion to dismiss or for summary judgment. It is undisputed that Dr. Thorndyke treats HIV positive patients other than plaintiff, that she knew of plaintiff's HIV status when she accepted him as a patient, that she saw him for appointments nine times in approximately ten months, that she referred him to ...