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WOOLFOLK v. DUNCAN

January 5, 1995

JOHN WOOLFOLK
v.
THEODORE G. DUNCAN, et al.



The opinion of the court was delivered by: JOHN R. PADOVA

 Padova, J.

 January 5, 1995

 Plaintiff, John Woolfolk, alleges that Defendants, Dr. Theodore G. Duncan, Pennsylvania Hospital ("PH"), and HealthPASS, *fn1" refused to provide medical treatment because he has tested positive for the Human Immunodeficiency Virus ("HIV"). *fn2" Woolfolk seeks relief pursuant to § 504(a) of Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C.A. § 794(a) (West Supp. 1994), the Americans With Disabilities Act ("ADA"), 42 U.S.C.A. §§ 12101-12213 (West Supp. 1994), and state law. *fn3" Pursuant to Federal Rule of Civil Procedure 56, all Defendants seek summary judgment; PH also seeks attorney fees. For the reasons set forth below, I shall grant in part and deny in part Defendants' motions for summary judgment, and I shall deny PH's motion for attorney fees.

 I. FACTUAL ALLEGATIONS

 The following facts are essentially undisputed, except as noted. HealthPASS enrollees may receive medical treatment from participating primary care physicians included on HealthPASS' list of "preferred doctors." At all times relevant to this dispute, Duncan was a participating physician, *fn4" and Woolfolk was a HealthPASS enrollee who had selected Duncan as his primary care physician. Duncan is a member of PH's professional staff, and serves as chief of its diabetes section, but he receives no income from PH. HealthPASS pays Duncan to treat HealthPASS enrollees. Duncan maintains private medical office space ("Office") at the Franklin Medical Building in Philadelphia, but neither PH nor HealthPASS has any ownership interest in the Office.

 On June 29, 1992, Woolfolk learned that he was HIV-positive, that is, had tested positive for HIV. On November 30, 1992, Woolfolk informed Duncan of his HIV status during a visit at the Office. On December 7, 1992, Woolfolk again visited the Office, and he informed Duncan that a second test confirmed his HIV status. Duncan allegedly informed Woolfolk that he did not "treat HIV," but rather referred patients with HIV-related difficulties to an infectious disease specialist. Duncan also allegedly recommended that Woolfolk join a support group for HIV-positive individuals.

 Woolfolk did not see Duncan again until November 1, 1993, when he sought treatment at the Office for lower chest pain. Duncan performed a physical examination, which revealed that Woolfolk's temperature was normal, but that he had tenderness on the left side of his chest, and had increased pain with breathing. Duncan ordered a chest x-ray, which was performed at PH, and a urinalysis, which was performed at the Office. Duncan alleges that neither test revealed abnormal results. Duncan diagnosed Woolfolk's symptoms as muscle pain, prescribed an analgesic, told him to go home, and told him to return to the Office if his symptoms did not improve.

 On November 2, 1993, Duncan authorized Woolfolk's treatment at the Thomas Jefferson University Hospital ("Jefferson") emergency room. Woolfolk was treated for musculoskeletal pain and seizures, and then released in the early morning hours of November 3, 1993.

 On November 4, 1993, Woolfolk returned to Duncan's Office complaining about continued discomfort. Duncan asserts that Woolfolk was agitated and demanded to be admitted to a hospital emergency room. Woolfolk alleges that Duncan told him that he did not need emergency care, but could be adequately treated in the Office. Duncan also suggested that Woolfolk see a psychiatrist. Woolfolk allegedly refused, and stated that he was going to an emergency room.

 On November 7, 1993, Woolfolk was brought by police to Jefferson's emergency room, complaining of shortness of breath, vomiting, fever, and breathing pain. The hospital records indicate that Duncan refused to authorize Woolfolk's emergency room treatment. *fn5" Nevertheless, Woolfolk was admitted to Jefferson for gastrointestinal hemorrhaging. Woolfolk remained at Jefferson until November 18, 1993. Upon discharge, Woolfolk was diagnosed as having pneumonia, staph aureus bacteremis, upper GI bleeding, and AIDS.

 Woolfolk alleges that Duncan treated him "like an outcast" because he is HIV-positive, and never made any bona fide medical judgments about Woolfolk's condition.

 II. STANDARD FOR SUMMARY JUDGMENT

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

 An issue is "genuine" only if there is sufficient evidence with which a reasonable jury could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Furthermore, bearing in mind that all uncertainties are to be resolved in favor of the nonmoving party, a factual dispute is only "material" if it might affect the outcome of the case. See id. at 248, 106 S. Ct. at 2510.

 A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S. Ct. at 2554. After the moving party has met its initial burden, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S. Ct. at 2552.

 III. DISCUSSION

 I shall first address Woolfolk's claims against Duncan, and then discuss Woolfolk's claims against PH and HealthPASS. Finally, I shall address PH's motion for attorney fees.

 A. DUNCAN

 1. Rehabilitation Act Claim

 The Rehabilitation Act provides that "no otherwise qualified individual with a disability . . . 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." § 794(a). This statutory section "creates a private right of action in favor of persons who allege to have been subjected to ...


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