Patients and Providers in the Courts: Fractures in the Americans with Disabilities Act

46 Pages Posted: 28 May 2009 Last revised: 14 Mar 2014

See all articles by Mary Anne Bobinski

Mary Anne Bobinski

University of British Columbia (UBC) - Faculty of Law

Date Written: 1997


The last fifteen years of the AIDS epidemic have given us ample opportunities to study social and legal responses to health threats in the context of an apparently new and frightening risk of harm. The epidemic has sparked a wide range of social and legal policies designed to minimize the risks of HIV infection.

This Article focuses on the process of risk identification and reduction in the relationship between patients and physicians, nurses, and other health care professionals. It explores whether and how laws prohibiting discrimination against persons with disabilities -- which reflect important social values -- have constrained efforts to eliminate the risk of HIV transmission between provider and patient. The Article also examines whether the legal response to HIV is consistent with the legal response to other types of risks in the provider-patient relationship.

In Part II, the Article summarizes current research attempting to assess and to quantify the risk of H1V transmission in the healthcare treatment relationship. These studies indicate that there is a risk of HlV transmission from patient to provider and from provider to patient, though there is no agreement on the precise probability of harm.

In Part III, the Article focuses on the parallel development of two seemingly inconsistent lines of decisions under the Americans with Disabilities Act (ADA). One line of cases, decided under the Act's employment provisions, permits employers to discriminate against HIV-infected health care workers on the theory that they present a "direct threat" to the health and safety of others, especially patients. The second line of cases, decided under the Act's public accommodation provisions, prohibits health care providers from discriminating against HIV-infected patients because those patients do not present a "direct threat" to providers. The apparent inconsistency of these decisions is even more striking when they are compared to the medical evidence about the risks presented by HIV-infected health care workers and patients.

Part IV analyzes whether the outcomes in these two lines of cases are truly inconsistent. I conclude that the divergence in the treatment relationship decisions cannot be explained by the statutory language (which is identical) or by traditional risk assessment (which would appear to lead to the opposite results in the two lines of cases). Instead, the courts and litigants have reached results which reflect normative assumptions about the health care provider relationship, in which the duty to accept risk is not reciprocal. The decisions reflect the view that health care providers have a duty to confront risks presented by patients and to refrain from presenting additional risks to those patients. This Article will explore how these normative conceptions of risk have surfaced in the courts -- a matter of some interest because the relevant statutes do not appear to permit courts to consider the normative justification for differential discrimination.

Keywords: AIDS (Disease), Medical personnel, Health aspects

Suggested Citation

Bobinski, Mary Anne, Patients and Providers in the Courts: Fractures in the Americans with Disabilities Act (1997). (Spring 1998) 61:3 Albany Law Review 785-830. Available at SSRN:

Mary Anne Bobinski (Contact Author)

University of British Columbia (UBC) - Faculty of Law ( email )

1822 East Mall
Vancouver V6T 1Z1, British Columbia V6T 1Z1
604-822-2818 (Phone)

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