Audrey Strauss, the Acting United States Attorney for the Southern District of New York, announced that SPRINGFIELD MEDICAL AESTHETIC P.C. d/b/a ADVANCED COSMETIC SURGERY OF NEW YORK (“ADVANCED COSMETIC”), and EMMANUEL O. ASARE, M.D. (“ASARE”), a plastic surgery practice and surgeon in that practice, were found by federal district judge Analisa Torres, after a bench trial, to have engaged in discrimination on the basis of disability in violation of Title III of the Americans with Disabilities Act of 1990 (“Title III of the ADA”). Specifically, Judge Torres concluded that ADVANCED COSMETIC, which has offices in Manhattan and Long Island, and ASARE, had an unlawful policy of denying services to individuals who are, or perceived to be, living with HIV, and applied that policy to unlawfully deny services to three prospective patients (the “Patients”) on the basis of their disability. The Court further concluded that ADVANCED COSMETIC and ASARE engaged in an unlawful practice of testing every preoperative patient for HIV, in violation of the ADA. Judge Torres awarded each of the three Patients $125,000 for emotional distress suffered as a result of ADVANCED COSMETIC’s and ASARE’s conduct, and imposed $15,000 in civil penalties. The Court also enjoined ADVANCED COSMETIC and ASARE from continuing to engage in practices that violate the ADA.
Acting U.S. Attorney Audrey Strauss said: “This verdict marks a significant victory in our continuing efforts to enforce the ADA and eliminate discriminatory practices against individuals living with HIV. The three patients who bravely testified at trial should not have had to suffer the discrimination they did when seeking medical services, and medical providers are reminded again that they are prohibited by law from treating individuals living with HIV differently from anyone else.”
Title III of the ADA prohibits discrimination by doctors, lawyers, hospitals, restaurants, retail stores, hotels, private transportation providers, and other private businesses and nonprofit organizations that provide services to the public. All of these entities are prohibited from excluding individuals with disabilities from their services and programs because they are living with a serious medical condition, such as HIV.
On May 6, 2015, the United States filed a Complaint in Manhattan federal court, alleging that ADVANCED COSMETIC and ASARE denied cosmetic surgery services to individuals living with HIV, in violation of the ADA. On February 10, 2016, one of the Patients filed an intervenor complaint alleging that ADVANCED COSMETIC and ASARE denied him cosmetic surgery services on the basis of his HIV status in violation of the ADA and the New York City Human Rights Law. At the bench trial held in October 2018, the Patients testified that they were denied services by ADVANCED COSMETIC and ASARE because they were either living with HIV, or, in the case of one Patient, perceived to be living with HIV. The Court’s findings of fact after trial included the following:
(1) Defendants refused cosmetic surgery services to the three Patients;
(2) Defendants did so when they became aware that each Patient was either living with HIV, potentially living with HIV, or living with HIV and taking antiretroviral drugs;
(3) Defendants tested the Patients without their consent in order to ascertain their HIV status; and
(4) each Patient suffered emotional distress as a result of Defendants’ actions.
The Court concluded that the above conduct violated the ADA. The Court further found that the testimony of the Patients detailed “severe psychological and emotional consequences of Defendants’ actions,” and awarded each Patient $125,000 in damages. The Court also awarded the United States $15,000 in civil penalties due in part to Defendants’ “troubling” practice of testing all prospective patients for HIV without their express consent. Finally, to prevent ADVANCED COSMETIC and ASARE from continuing to engage in unlawful practices, the Court permanently enjoined Defendants from (1) performing HIV testing on every patient as a routine practice, and (2) conducting HIV testing on any patient without the patient’s express consent.
This case is being handled by the Office’s Civil Rights Unit. Assistant U.S. Attorneys Arastu Chaudhury and Lara K. Eshkenazi are in charge of the case.