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TONEY v. U.S. HEALTHCARE

December 30, 1993

WILLIAM R. TONEY
v.
U.S. HEALTHCARE, INC., et al.



The opinion of the court was delivered by: BY THE COURT; BARTLE

 Bartle, J.

 As stated in this court's Memorandum of November 5, 1993, reported at F. Supp. , 1993 WL 492390, E.D. Pa. Nov. 5, 1993 (NO. CIV.A. 93-3181), plaintiff, William R. Toney ("Toney"), is infected with the human immunodeficiency virus ("HIV"), the virus which causes acquired immunodeficiency syndrome ("AIDS"). He alleges that defendants Dr. George Bradford and Dr. Peter Binnion have discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and that Dr. Binnion has discriminated against him in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101. Presently before the court are the motions of these defendants for summary judgment. *fn1"

 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 his HMO to find a new physician who was willing to treat an HIV positive patient.

 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 refer plaintiff to Dr. Van Uidert, an infectious disease specialist, on a number of occasions.

 Plaintiff continued to contact his HMO to try to locate a primary care physician who would treat him. Through a referral system unaffiliated with his HMO, plaintiff obtained an appointment with Dr. Luanne Thorndyke. Dr. Thorndyke accepted plaintiff as a patient in October of 1991 and continued to see him until July of 1992, when plaintiff left her care to begin treatment with Dr. Peter Binnion.

 Dr. Binnion treated plaintiff from July of 1992 until October of 1992, when plaintiff's HMO removed Dr. Binnion from its provider list. Dr. Binnion informed plaintiff that the HMO would no longer cover the cost of prescriptions or referrals Dr. Binnion made to specialists, but that he would continue to treat plaintiff if he wished. Plaintiff declined and began treatment with a physician whose services his HMO would cover.

 To obtain summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the moving party must establish that no genuine issues of material fact remain in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A factual dispute is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In deciding a summary judgment motion, the evidence must be viewed in the light most favorable to the non-moving party. Mellon Bank Corp. v. First Union Real Estate Equity & Mort. Invs., 951 F.2d 1399, 1404 (3d Cir. 1991).

 Motion of Dr. Bradford

 Plaintiff has asserted a claim under the Rehabilitation Act against Dr. Bradford. 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. . . .

 29 U.S.C. § 794.

 Dr. Bradford raises a statute of limitations defense in his motion for summary judgment. As the Rehabilitation Act contains no statute of limitations, the most closely analogous state statute of limitations applies. Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992). Nevertheless, the date on which a federal claim accrues is determined by federal law. Id. at 125-126. A claim accrues and the applicable statute of limitations begins to run when the plaintiff " knows or has reason to know' of the injury that is the basis of the action." Id.

 In Chardon v. Fernandez, the Supreme Court held that when determining the accrual date of a discrimination claim, "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." 454 U.S. 6, 8, 102 S. Ct. 28, 70 L. Ed. 2d 6 (1981) (emphasis in original) (citation omitted). The respondents in Chardon were school administrators who were notified of their allegedly discriminatory termination several weeks before their employment actually ended. The Court held that ...


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