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November 17, 1995


James F. McClure, Jr., United States District Judge

The opinion of the court was delivered by: MCCLURE

November 17, 1995


 Plaintiff Jeffrey Sharrow filed this action to recover for alleged discrimination against by him by defendants John Bailey, Jr., M.D. and the Williamsport Hospital and Medical Center (the hospital) on the basis of his HIV *fn1" positive status.

 Plaintiff is a double below-the-knees amputee as a result of an automobile accident. On or about September 29, 1994, he was referred to the hospital emergency room by the hospital's Ambulatory Care Clinic with complaints of pain in his right leg and a suspected infection in that leg. Plaintiff was also experiencing fever and chills.

 Plaintiff was admitted by Dr. Stephen Weber with a principal diagnosis of an abscess of the right thigh and a secondary diagnosis of osteomyelitis of the right femur. I.V. antibiotics were prescribed, and blood cultures, X-rays and a consultation with an orthopedic surgeon were scheduled.

 Dr. Bailey was the orthopedic consult. After reviewing plaintiff's x-rays, he concluded that the hardware surgically implanted in plaintiff's right femur was infected. Further testing confirmed his diagnosis, revealing that the right femur rod was definitely loose and probably infected.

 Surgery was scheduled for October 7, 1994. *fn2" Dr. Bailey requested the use of protective suits for himself and the surgical team before he would go forward with the surgery. Such gear was not routinely made available by the hospital, and his request was not granted. Plaintiff's surgery was performed the following day, October 8, 1994, at the hospital by Dr. DiSimone. Plaintiff made a full recovery.

 Plaintiff's allegations arise out of the one-day delay occasioned by Dr. Bailey's refusal to perform the surgery without first obtaining protective suits for himself and his surgical staff. Plaintiff alleges that such suits were not necessary under currently existing standards established by the Center for Disease Control (CDC) and that Dr. Bailey's insistence on their use was, therefore, improper.

 Plaintiff alleges federal claims against both defendants under: 1) the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq (ADA) (Count I); and 2) section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count II). He also alleges state claims against Dr. Bailey for the infliction of emotional distress (Count III) and medical malpractice (Count V), *fn3" and against the hospital on grounds of vicarious liability stemming from the conduct of Dr. Bailey, who is alleged to be an "agent, servant, employee, director or officer" of the hospital (Count VI) and direct liability of the hospital stemming from an alleged failure to train its staff in the proper treatment of HIV-positive patients. Plaintiff seeks compensatory and punitive damages.

 Before the court are: 1) a Rule 12(b) motion to dismiss filed by Dr. Bailey (record document no. 3); and 2) a motion for summary judgment filed by the hospital (record document no. 23). Both motions will be disposed of as motions to dismiss, there having been inadequate opportunity for plaintiff to conduct discovery on key points.

 For the reasons which follow, we will enter an order: 1) granting Dr. Bailey's motion in part by dismissing Counts III and V asserted against him, and 2) denying the hospital's motion to dismiss.



 Dr. Bailey submitted an affidavit in support of his Rule 12(b) motion and urges the court to consider the latter a motion for summary judgment as permitted under Rule 12(b)(6). Plaintiff opposes Dr. Bailey's request and the hospital's motion for summary judgment on the ground that motions for summary judgment are premature since plaintiff has had no opportunity to conduct discovery on issues key to the grant or denial of defendant's motion. We agree that motions for summary judgment are premature and will rule on both pending motions under Rule 12(b).

 In deciding a Rule 12(b) motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Id. Dismissal is not appropriate unless "it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id.

 ADA claims against Dr. Bailey

 The ADA provides that:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

 42 U.S.C. § 12182(a).

 To establish liability under this section, a plaintiff must prove that he or she: 1) has a disability; 2) was discriminated against on the basis of that disability; 3) was thereby denied goods or services; 4) by a place of public accommodation by the owner or operator of that facility.

 "Disability" is defined under the ADA as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." 42 U.S.C. § 12102(2). Individuals diagnosed as HIV-positive are considered disabled for ...

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