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December 7, 1994


The opinion of the court was delivered by: JAMES MCGIRR KELLY

 J. M. KELLY, J.

 Presently before the court are the Second Motion of Plaintiff, Paul Scoles, M.D., for Partial Summary Judgment and the Motion of Defendants, Mercy Health Corporation of Southeastern Pennsylvania, Mercy Catholic Medical Center of Southeastern Pennsylvania, Mercy Health Plan, Plato A. Marinakos and Thomas F. Toomey, Jr., M.D. for Partial Summary Judgment. For the reasons set forth below, Plaintiff's Motion will be denied and Defendant's Motion will be granted. *fn1"


 Plaintiff, Paul Scoles, M.D. ("Dr. Scoles"), is a resident of Pennsylvania and an orthopedic surgeon. Defendant Mercy Health Corporation is a corporation doing business in Pennsylvania with principal offices in Bala Cynwyd, Pennsylvania. Defendant Mercy Catholic Medical Center is a corporation doing business in Pennsylvania and is a subsidiary of Mercy Health Corporation. Mercy Catholic Medical Center operates two hospitals in the area: Fitzgerald Mercy Hospital in Darby, Pennsylvania and Misericordia Hospital in Philadelphia, Pennsylvania. Defendant Mercy Health Plan is a corporation doing business in Pennsylvania and has its principal office in Lester, Pennsylvania. Mercy Health Plan is also a subsidiary of Mercy Health Corporation. Mercy Health Plan contracts with health care providers to provide health care to Mercy Health Plan subscribers, who are Medicaid recipients. The parent, Mercy Health Corporation, also operates Mercy Work Care and Mercy Careport, two occupational health programs that provide health care to workers at two locations in Philadelphia. Defendant Plato A. Marinakos is the President and Chief Executive Officer and the former Executive Vice President of Mercy Health Corporation. Defendant Thomas F. Toomey, Jr., M.D. is Senior Vice President for Professional Affairs and Medical Director for Mercy Health Corporation and Mercy Catholic Medical Center.

 In late July, 1991, Dr. Scoles disclosed his HIV-positive status to Dr. Leon Clarke, Director of Surgery at Misericordia Hospital, one of Defendant Center's hospitals. Dr. Clarke notified Defendant Dr. Toomey. After various officials of the Defendants held a meeting, it was decided that Dr. Toomey would seek Dr. Scoles's agreement to cease performing surgery at Defendants' facilities and to cooperate in notifying past patients of his HIV-positive status.

 In light of the Pennsylvania Confidentiality of HIV-Related Information Act, Defendants filed a petition with the Court of Common Pleas of Delaware County on August 9, 1991. After a hearing on whether there was a "compelling need" to notify Dr. Scoles's former patients of his HIV status, the court granted Defendants permission to do so.

 On September 16, 1991, Defendant Center sent letters to 1050 former patients of Dr. Scoles as authorized by the court. The letters informed the patients that their surgery had been performed by an orthopedic surgeon who was recently discovered to be HIV-positive. Also on September 16, Defendant Plato Marinakos, as Executive Vice President for Mercy Health Corporation and Mercy Catholic Medical Center notified Dr. Scoles that his clinical privileges to perform diagnostic or therapeutic invasive procedures at Mercy Catholic Medical Center were suspended. In his letter to Dr. Scoles, Defendant Marinakos also stated that prior to each proposed invasive procedure, Dr. Scoles would have to seek Defendants' approval by submitting documentation that the patient had consented to the procedure being aware of Dr. Scoles's HIV status. On September 18, 1994, defendant Center held a press conference and informed the public of its actions but did not disclose Dr. Scoles's name. The Center also notified its employees, staff, Board of Directors and two other hospitals regarding its actions.

 At that point, Dr. Scoles sought a hearing under the Center's by-laws. After a hearing held in April of 1992, the Center's Medical Board decided that Dr. Scoles should be reinstated with full privileges. The Center's Board of Directors then considered the matter and convened an ad hoc committee. The committee recommended that Dr. Scoles's privileges be reinstated on the condition that Dr. Scoles inform his patients of his HIV status prior to any invasive procedure.

 Although Defendants did not reveal Dr. Scoles's identity, Plaintiff claims that his identity was easily deduced from Defendants' statements. Plaintiff also charges that Defendants disclosed the fact that he was employed with Greater Atlantic Health Service ("Greater Atlantic"), an entity unrelated to Defendants, and had surgical privileges at Graduate Hospital. Plaintiff claims that as a result, he was forced to terminate his employment with Greater Atlantic and take a disability policy. Plaintiff also states that referrals from the Center dropped to zero and that his name was removed from the list of Mercy Work Care and Mercy Careport physicians, even though his practice in those programs did not include invasive procedures.

 Plaintiff filed his First Amended Complaint on April 15, 1994. Plaintiff asserts in Count I that Mercy Health Corporation, Mercy Catholic Medical Center, Mr. Marinakos and Dr. Toomey ("the Hospital defendants") violated Section 504 of the Rehabilitation Act of 1973 by discriminating against him on the basis of handicap while receiving federal funds. Count II alleges the same violation by Defendant Mercy Health Plan. In Count III, Plaintiff claims that the Hospital defendants also violated Section 101 of the Americans with Disabilities Act.

 Defendants have moved for partial summary judgment. With the exception of Plaintiff's claims regarding Mercy Work Care and Mercy Careport (which concern non-invasive procedures), Defendants claim that they are entitled to judgment as a matter of law. Defendants argue that prohibiting Dr. Scoles from performing surgery without patient consent given with the knowledge of his HIV status was within the boundaries of the law. Specifically, Defendants claim that they did not violate the Rehabilitation Act or the Americans with Disabilities Act ("ADA") because Dr. Scoles was not "otherwise qualified" to perform his duties as an orthopedic surgeon and presented a "direct threat" to his patients.

 Plaintiff has also moved for partial summary judgment. Plaintiff vigorously disputes Defendants' claims that Dr. Scoles presents a danger to his patients. Plaintiff argues that the Defendants' actions were motivated by an unreasonable fear of AIDS and liability concerns rather than an objective evaluation of the risk of HIV transmission from surgeon to patient. Plaintiff claims that the risk of transmission is minuscule and theoretical. Thus, Defendants' actions against Dr. Scoles were unjustified and in violation of the Rehabilitation Act and the ADA.


 I. Summary Judgment ...

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