Maine: Panel Sides With HIV-Positive Patient Who Accused Surgeon of Bias

The Maine Human Rights Commission has ruled in favor of a Portland man who claimed that a surgeon refused to operate on him because he has HIV. By a 3-1 vote, the panel found reasonable grounds to believe that Steven DesRochers, 39, was unlawfully discriminated against by Dr. Paul Kamins, an orthopedic surgeon in Belfast. DesRochers said he has not decided if he will sue Kamins. Commission rulings carry no penalties but are frequently used as the basis for mediation or lawsuits.

Through Kamins' nurse, DesRochers contacted the surgeon in January because DesRochers needed both hips replaced and Kamins had been recommended by a former colleague in Boston. According to the commission investigator, Kamins called back a week later and sounded interested in doing the procedure. However, after the nurse informed Kamins that DesRochers is HIV-positive, there was a long pause. Kamins then commented that this would put his surgical team at risk, and he also had a family to consider. "There was definite tone change in the conversation," Robert Sorrenson, the nurse, recalled. A week later, Kamins called back and left a message saying he was too busy to do the surgery and he could not recommend another doctor.

Kamins' attorney, Joseph Hahn, acknowledged that the surgeon had concerns about treating someone with HIV, but insisted that was not his only motivation for turning down the job. Hahn said Kamins never has performed a bilateral hip replacement, so is unqualified to do the procedure. He also pointed out that Kamins is in practice alone and the simultaneous replacement of both hips would require two surgeons. Commission investigator Barbara Lelli sided with DesRochers: "Although he now denies it, Dr. Kamins' fear of HIV infection was the reason he did not want a doctor-patient relationship with [DesRochers]. The other reasons are rationalizations."

Courts have ruled that health care providers cannot deny critical services to patients with HIV on the basis of their disability. The landmark US Supreme Court case involved a Bangor dentist who refused to treat in his office a woman who was HIV-positive.

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