Mark Milano, 64, of New York City, is a true survivor. Not only was he diagnosed with AIDS in 1982, even before there was an actual test to detect HIV, he’s a longtime ACT UP New York member, nearly died in 2007 from anal cancer but lived to tell, and currently serves as lead trainer at ACRIA, which, in collaboration with GMHC, supports efforts to increase health literacy, improve HIV services, and meet the needs of older folks living with HIV.
In other words, he’s used to fighting for his life—and his rights. And that’s exactly what he did in July 2014, after a disastrous visit to New York City’s Emmanuel Asare, M.D., who is well known for liposuction-like procedures that correct gynecomastia. That’s the condition of fat build-up in male breasts, usually due to a hormone imbalance, making them look somewhat like female breasts. During his cancer, Milano dramatically lost weight. After the cancer, he put it back on, which, he thinks—perhaps along with decades on HIV meds—may have led to his gynecomastia.
Whatever the reason, he wanted to get rid of it. “Nothing I did in six years with diet and exercise helped,” he says. So he made an appointment with Asare’s office, and, upon arrival, decided not to fill out the medical history form, given the complexity of his own history, and to relate it to Asare in person.
“When I opened my shirt,” Milano recalls, “he said, ‘Yes, we can do something about this.’ I asked, ‘What caused this? Gaining weight back after cancer?’ He said, ‘Maybe.’ I said, ‘As soon as I mentioned that I had HIV, his tone suddenly changed.’ He said, ‘You didn’t check HIV on your form.’ I said, ‘I know, I’m telling you now.’ Then, very seriously, he said, ‘I should inform you that it’s our policy to not perform procedures on any patients with the Human Immunodeficiency Virus.’”
Milano says he was “dumbfounded—it was a gut punch.” He told the doctor that what he was doing was illegal under the Americans with Disabilities Act (ADA)—a fact Milano knew from his years as a special investigator for the New York State AIDS Institute. According to Milano, Asare said that his own lawyers had told him he was exempt from the law because he was in private practice and because cosmetic surgery was elective. (Asare did not return a call from TheBody asking for comment.) Milano told Asare he would report him—to which, says Milano, Asare replied, “Be my guest.”
After Milano filed his complaint with the U.S. Department of Justice (DOJ), the HIV Law Project and Legal Director Armen H. Merjian agreed to represent Milano individually, also enlisting the civil rights law firm Emery, Celli, Brinckerhoff and Abady. According to Milano, Asare not only ignored the first letter from the DOJ but replied to the second one by openly admitting that he indeed turned away people with HIV. In 2015, Asare refused to settle the case. “His first lawyer even told him to cut a deal, and he said no,” says Milano.
In December 2017, a New York State Supreme Court judge ruled in favor of Milano, saying that the illegality in the case was clear-cut. Around the same time, Milano, on an online review page of Asare, found half a dozen people with HIV who’d said Asare had turned them away as well but had not taken legal action. Two of them agreed to testify in Milano’s case. At the October 2018 hearing, says Milano, one of them even said that Asare had learned of their HIV status and turned them away after administering anesthesia. It also came out during the trial that Asare was actually illegally screening all his patients for HIV without their consent. He even once gave a patient a false-positive HIV test result, says Milano.
Finally, this month, Asare was ordered to pay $375,000 in damages to Milano and the other two plaintiffs, plus $15,000 in penalties to the government; attorneys’ fees have not yet been awarded. But Milano says they won’t see that money anytime soon; Asare will likely appeal the decision, “and even if we win the appeal, we have to get the money out of him.”
Equally important to Milano, however, is that “we sent a clear message that no doctor in this country can turn someone away for a procedure just because they have HIV.” The judge also affirmed, says Milano, that “we experienced significant stress because of this.”
“This is a terrific opinion and result,” says attorney Scott Schoettes, the openly HIV-positive director of the HIV Project at Lambda Legal. “The Court’s recognition of the emotional distress this kind of discrimination causes—and substantial damages awards to compensate the plaintiffs for those harms—is particularly important. People living with HIV should not have to endure this type of discrimination from anyone, certainly not from medical providers.”
Both Schoettes and Merjian noted that the ADA does not allow plaintiffs to sue directly for damages in such cases, and that the DOJ must bring the case in order to do so. This, Merjian said, is also why Milano secured private counsel and filed a claim under the New York City Human Rights Law, which does allow plaintiffs to collect damages.
Milano’s court ruling also echoes the legal conclusions of several past related complaints handled by the DOJ.
“We would all like to think that this is ‘so ’80s’ and no longer a concern,” says Merjian of Milano’s case. “After all, universal precautions [against HIV transmission in medical settings] have been in place since the mid-1980s, and the disability laws clearly prohibit this blatant discrimination. But au contraire.”
Merjian then noted a case very similar to Milano’s, which was found in favor of the HIV-positive plaintiff against a cosmetic surgeon in Illinois in late July.
As for Milano, he says he’s postponing looking for another gynecomastia surgeon, at least until after the COVID-19 pandemic subsides. Also, he says, “I don’t have the money right now, and I’ve also been really scared to go to another surgeon and be turned away. I’ve gotten leads, but most charge $200 even for the consult, and it’s still very hard to get insurance to cover this.” Massachusetts is the only state that requires insurers to cover cosmetic surgery to correct HIV- or HIV-treatment-related side effects.
Still, he says, he had the recent satisfaction of addressing Asare directly in court. “The judge let me look him right in the eye and say, ‘What you did really hurt very deeply. It was medically, morally, and legally wrong. You’ve done this to numerous people, and you have no right, and you should never do this again.’”