---

Thursday, November 27, 1997

---

High court to hear dentist's appeal

The case of a Bangor dentist who refused to treat an HIV-positive woman in his office will be heard by the U.S. Supreme Court, the court announced Wednesday.

The court said it will hear an appeal by dentist Randon Bragdon, who a lower court said violated the federal Americans With Disabilities Act when he told patient Sidney Abbott he would only fill her cavity at a hospital.

The court is using the dispute to clarify protections against bias for people with the AIDS virus.

The Americans With Disabilities Act bans discrimination against disabled people in employment, government services, public accommodations, transportation and telecommunications. Under the law, people are disabled if they have a physical or mental impairment that substantially limits ''one or more major life activities.''

The case being heard established two legal precedents:

• It was the first federal appellate ruling to establish that people who are HIV-positive, but are asymptomatic, are protected from discrimination by the ADA.
• The First U.S. Circuit Court of Appeals found that it is illegal under the federal ADA for a dentist to refuse to treat a patient with HIV based on the fear of HIV transmission from a patient to a dentist.

The 140,000-member American Dental Association supported Bragdon's appeal in a friend-of-the-court brief that urged the justices to clarify dentists' legal obligations in such circumstances.

A spokesman for the Gay and Lesbian Advocates and Defenders, which represents Abbott, said the ADA must be all-encompassing.

''Unless the Americans with Disabilities Act covers all people with HIV, regardless of stage of disease progression, then people who are HIV-positive can be fired from a job, denied necessary medical care, or even refused service at a restaurant simply because they are HIV-positive,'' said Bennett H. Klein, the Aids Law Project Director at GLAD.

Abbott's lawyer, David G. Webbert of Augusta, spoke similarly.

''Without strong legal protections against discrimination, the nearly one million Americans in this country who are living with HIV will become second-class citizens.''

It is slightly more than three years since Abbott, of Bangor, went to Bragdon to have a cavity filled. Because Abbott was HIV-positive, Bragdon refused to fill the tooth in his office. Instead, he offered to treat her in a hospital, which he said was safer but would have added $150 to her bill.

Two months later, Abbott sued.

In December 1995, U.S. District Judge Morton Brody ruled against Bragdon on the basis that a solid base of medical opinion considers the treatment of patients with asymptomatic HIV safe.

Bragdon appealed, but the federal appeals court, in March, upheld the lower court ruling.

The appeals court ruled that because Abbott was HIV positive, the virus limits her ability to have children - a major life activity - and therefore she is disabled according to the ADA.

''Cases of this kind are necessarily fact-sensitive,'' the 1st Circuit court said. ''Had the patient required more invasive treatment or had the dentist proffered stronger evidence of a direct threat, the result may well have differed.''

Before monetary damages could be calculated, Bragdon appealed to the nation's highest court. His lawyers argued, among other things, that reproduction should not be considered a major life activity comparable to walking, seeing, hearing, speaking, working or caring for one's self.