when they were told of their termination, not on the last day of their actual employment.
In a previous order in this case, this court held that Pennsylvania's two-year statute of limitations for personal injury claims applies to plaintiff's claims under the Rehabilitation Act. See Order of 9/10/93; accord, Morse, 973 F.2d at 125-127, citing Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). As this suit was filed on June 14, 1993, any claim arising before June 14, 1991 is time-barred.
Both plaintiff and Dr. Bradford have submitted affidavits in support of their positions regarding the motion for summary judgment. While the facts alleged in these affidavits conflict in many respects, it is undisputed that Dr. Bradford is a family practitioner who saw plaintiff for the first and only time on March 18, 1991. Plaintiff states in his affidavit that when he told Dr. Bradford of his HIV status during that appointment, Dr. Bradford "expressly advised [Toney] that he did not want an HIV positive patient in the office and that [Toney] was not to come into the office for any reason."
While Dr. Bradford did leave referral slips in a box outside his office door for plaintiff so that he could see specialists, plaintiff never again saw Dr. Bradford.
The only allegation of discrimination against Dr. Bradford in plaintiff's complaint arises from Dr. Bradford's alleged refusal to act as Toney's treating physician. While plaintiff argues in his response to Dr. Bradford's motion that "Defendant fails to take into account the myriad additional incidents of discrimination," not one such additional incident is alleged which involves Dr. Bradford in any way.
Plaintiff's cause of action against Dr. Bradford arose on March 18, 1991, when Dr. Bradford allegedly informed plaintiff that he would not treat him because of his HIV status. Since this alleged refusal occurred more than two years before June 14, 1993, when suit was filed against Dr. Bradford, the claim against him is time-barred. In light of the decision reached on this issue, this court need not address the other issues raised by Dr. Bradford in support of his motion for summary judgment.
Motion of Dr. Binnion
Plaintiff and Dr. Binnion have each submitted affidavits in support of their positions in regard to Dr. Binnion's summary judgment motion. The parties agree that Dr. Binnion personally treated plaintiff for approximately three months, and that the doctor-patient relationship between them ended when plaintiff's HMO notified Dr. Binnion that he would no longer be a covered provider. Dr. Binnion offered to continue treating plaintiff even after the HMO terminated his coverage, but plaintiff was unable to afford treatment on his own. Plaintiff does not dispute that Dr. Binnion sees other patients who are HIV positive or who are suffering from AIDS.
To state a claim under the Rehabilitation Act, "a plaintiff must prove (1) that he is a handicapped individual' under the Act, (2) that he is otherwise qualified'. . ., (3) that he was excluded from the [treatment] sought solely by reason of his handicap, and (4) that the program or activity in question receives federal financial assistance." Strathie v. Department of Transportation, 716 F.2d 227, 230 (3d Cir. 1983) (citation omitted). While Dr. Binnion does not dispute that plaintiff satisfies the first factor, he does argue that plaintiff does not meet the other three.
To prevail under the Rehabilitation Act, plaintiff must establish that although he is handicapped, he is "otherwise qualified" for medical treatment. Thus, he must prove that if it were not for his handicap, he would be eligible for the treatment at issue. Dr. Binnion cites United States v. University Hospital to support his contention that plaintiff cannot meet that statutory test. 729 F.2d 144 (2d Cir. 1984). University Hospital held that the "otherwise qualified" language of § 504 "cannot be applied in the comparatively fluid context of medical treatment decisions without distorting its plain meaning." 729 F.2d at 156. Accordingly, "where the handicapping condition is related to the condition(s) to be treated, it will rarely, if ever, be possible to say with certainty that a particular decision was discriminatory.'" 729 F.2d at 157. In Johnson v. Thompson, the Court of Appeals for the Tenth Circuit followed University Hospital in holding that infants were not "otherwise qualified" for treatment for spina bifida, because the treatment sought would be wholly unnecessary in the absence of the handicapping condition. 971 F.2d 1487, 1494 (10th Cir. 1992). In this case, plaintiff's handicapping condition, HIV seropositivity, is the condition for which he seeks treatment. Thus, as in the Johnson and University Hospital cases, an analysis of whether plaintiff is "otherwise qualified" for treatment is meaningless.
Dr. Binnion also argues that the undisputed facts demonstrate that any alleged discrimination against plaintiff could not have been based "solely [on] his disability," that is, his HIV status. § 794(a) (emphasis added). In Johnson, the court held that for a plaintiff to maintain a claim pursuant to § 504, "the discrimination must result from the handicap and from the handicap alone. If others with the same handicap do not suffer the discrimination, then the discrimination does not result solely by reason of [the] handicap.'" 971 F.2d at 1494.
Plaintiff does not contest Dr. Binnion's affidavit stating that he has other HIV positive patients, nor does plaintiff allege that Dr. Binnion acts differently towards his HIV positive patients than he acts towards his HIV negative patients. Accordingly, plaintiff cannot show that his HIV status was the sole basis for Dr. Binnion's alleged discrimination against him. As plaintiff "has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," all other factual disputes between the parties are rendered immaterial, and Dr. Binnion is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323 (1986).
Dr. Binnion alleges that he is also entitled to summary judgment on the claim against him because plaintiff has challenged medical treatment decisions which are nonreviewable under § 504 of the Rehabilitation Act. The Court of Appeals for the Second Circuit has held that the Rehabilitation Act was not meant to apply to medical treatment decisions, stating that:
in view of [the] consistent congressional policy against the involvement of federal personnel in medical treatment decisions, we cannot presume that congress intended to repeal its earlier announcements in the absence of clear evidence of congressional intent to do so. . . . there is no such clear expression of congressional intent in either the language or legislative history of section 504.