'Open Wide'?

Some dentists are paying the price for refusing to treat people with HIV

Nine months after the Supreme Court ruled that a dentist's refusal to treat a person living with HIV disease is illegal, dental discrimination is still common in Los Angeles.

The HIV/AIDS Legal Services Alliance (HALSA) receives more valid complaints of discrimination by dentists than any other type of HIV/AIDS discrimination, including employment and housing discrimination. Despite last year's ruling, HALSA still receives several complaints a month from clients who have been denied services by dentists. The Supreme Court ruling appears to have increased patients' awareness of their rights but has not deterred dentists from discriminating.

During the past year, HALSA has settled three dental discrimination cases for more than $13,000, and has filed another case in federal court. Currently, HALSA is in the initial stages of litigating two additional cases.

Most of these cases involve patients who were told at their first appointment with a new dentist that they could not receive treatment because they were HIV-positive. After disclosing their HIV status on a medical questionnaire, they were turned away.

Discrimination is common

Frequently, the discrimination is very explicit. The dentist actually says the patient will not be treated because he or she is HIV-positive. These cases are easier to prove and often result in settlement before a lawsuit is even filed.

In December, HALSA settled two cases against a dentist in the San Fernando Valley who told each of the two patients that he did not treat people with HIV disease because they were "unstable." He also told them that they would be better off at the "special dental clinic at USC" for people living with HIV disease.

The dentist made this referral before asking to speak with either patient's HIV/AIDS doctor, or inquiring about their health status, T-cells or viral load. He simply learned they were HIV-positive, and told them he would not treat them.

HALSA settled each client's case for $4,000 and a set of specific policy changes. The dentist now has to inform all of his patients, in writing, that he does not discriminate on the basis of HIV or AIDS. In addition, he must have all of his employees sign a statement that they will not discriminate.

Last summer, HALSA settled another case for $5,000. In that case, the dentist again gave a patient a "referral" after the patient disclosed his HIV status on a medical questionnaire at his first appointment. The dentist told the patient that he should go to the UCLA dental clinic because "they're better suited to treat someone in your situation" and "we're not set up to treat people with HIV."

HALSA is investigating a case in which the dentist told a new patient that he should go to a "special HIV clinic" because such a clinic would have "super sterilization" procedures. She told the patient that she would have to "double wrap in plastic" her implements if she were to treat him and that she did not have enough equipment to properly sterilize her office and that she had bacteria in her office that would not be present at a "special HIV clinic."

Not always explicit, but still illegal

Sometimes dentists don't come right out and say that they're refusing to treat a patient because he or she is HIV-positive. Instead, they make up other reasons for denying services. If these reasons are proven to be a "mere pretext" for HIV-discrimination, the dentist's conduct is still illegal.

For example, in a case that HALSA is currently litigating in federal court, the dentist never explicitly said that she was not going to treat the patient because he was HIV-positive. Unlike the other cases, this patient did not disclose his HIV status on a medical questionnaire. Instead, he asked to interview the dentist first. He wanted to make sure he would be comfortable working with her.

After a 15-minute conversation in which the dentist described her services and stated that she could treat him, he disclosed his HIV status. The dentist then abruptly told him that her schedule was full and that she was no longer accepting new patients.

In another case that HALSA is investigating, the patient was actually admitted as a new patient and scheduled for a number of appointments. However, at each appointment he was told that the work could not be performed and that he would have to schedule another appointment.

At his third appointment, he finally got to speak to a dentist. The dentist again told him that he could not be treated at his scheduled appointment, but that he could come back at the end of the day when all of the other patients were gone. When the patient objected, the dentist informed him that he would have to wait until the end of the day because of his "medical condition." The patient refused to be segregated to the end of the day, and left the office.

Obviously, both of these patients were discriminated against even though the dentists did not explicitly say that they were refusing services because the patients were HIV-positive.

Your right to dental care

People living with HIV/AIDS have a right to expect the same care and treatment from dentists as anyone else. The Americans with Disabilities Act prohibits a dentist from denying services, providing different or less services, or providing segregated services to persons living with HIV disease or AIDS.

A dentist does not have a valid defense to a discrimination lawsuit by claiming that his or her office is not sufficiently sterile or equipped to treat persons living with HIV disease or by giving a referral to another provider, such as an HIV dental clinic, without medical justification.

All dental offices must be equipped to handle persons with suppressed immune systems and to follow "universal precautions," policies that will present infections with every patient.

Further, referrals can only be given if the dentist cannot provide that treatment to any other patient. For example, this means that dentists do not have to perform periodontal work on a person living with HIV, if they are not peridontists. It does not mean that they can refuse to provide routine dental care for patients with HIV because they are ignorant about HIV disease. The law holds dentists to a higher standard of knowledge.

Before services can be denied because the dentist believes that providing services might pose a risk to the patient, the dentist must perform a thorough evaluation of the patient's health and of the procedures that need to be performed. In the cases above, a "referral" was given the moment the dentist learned the patient was HIV-positive. Those "referrals" had no medical justification.

Further, dentists cannot deny services to persons living with HIV-disease because they fear that they or their staff might become infected. The risk of a health care worker being infected by treating an HIV-positive patient is too small for the law to recognize this fear as a valid legal defense to discrimination. In order to prevent infection from all blood-borne disease, the law requires that health care workers follow universal precautions with all patients.

Disclosing to a dentist

To avoid dental discrimination, it may seem better not to disclose your HIV status on a medical questionnaire at your first appointment.

In fact, the choice is yours. While it is not illegal for a dentist to ask you if you are HIV-positive, you are also not legally required to give an answer. However, if you refuse to answer a direct question about your HIV status, the dentist may be able to legally deny you services on that basis alone.

Dentists are allowed to ask about a patient's HIV status because there are a number of legitimate medical reasons why they may need to know that information. The dentist may need to consult with your HIV doctor before performing more complicated procedures or before using certain medications or anesthesia. In addition, some symptoms of HIV disease and of opportunistic infections may first appear in the mouth. If your dentist knows that you are HIV-positive, it will help her or him to properly diagnose and treat those symptoms.

Finally, even though dentists are supposed to apply universal precautions with everyone, revealing your HIV status may ensure that they will apply them with you or apply extra precautions if your immune system is extremely compromised.

Fighting dental discrimination

If you feel that a dentist has discriminated against you, you have several options. You can address the issue immediately with the dentist. However, you may not feel comfortable being treated by someone who initially discriminated against you, even if he or she decides to treat you after all.

If you decide to pursue any action against the dentist, you should request your dental records from his or her office. You are legally entitled to a copy of these records and they will let you know what the dentist has written down about why your services were terminated.

You should then call the HALSA intake line, (323) 993-1640, and ask to speak with the discrimination attorney. HALSA can help you determine if you have a valid discrimination case.

HALSA can also assist you with filing a complaint with the California Dental Board or in Small Claims Court. HALSA may also be able to represent you in a dental discrimination lawsuit.

Brad Sears is director of the HIV Legal Checkup Project.

This article has been reprinted at The Body with the permission of AIDS Project Los Angeles (APLA).