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Maureen K v. Theodore Tuschka

April 17, 2013


Kent M. Kellegrew, Rebecca Riley, Judges Superior Court County of Ventura (Super. Ct. No. 56-2009-00362326)

The opinion of the court was delivered by: Yegan, J.


(Ventura County)

The Unruh Civil Rights Act provides a comprehensive statutory scheme to protect all persons from unlawful discrimination. A medical doctor is not immune from the broad sweep of the Act. The irony here is that appellant was in need of surgery to repair an umbilical hernia, and turned to the medical profession for help. She was turned away minutes before surgery because of a disability - she was HIV-positive. The surgery was abruptly canceled in the hospital's pre-operative room by the anesthesiologist, respondent Dr. Theodore Tuschka, after he learned from appellant's chart that she was HIV-positive and was not taking anti-retroviral (ARV) medications. Respondent refused to go forward with the surgery because of his concern for his own safety and that of the operating room staff.*fn1

As we shall explain, the trial court prejudicially erred by submitting the issue of whether appellant was disabled to the jury. A person with HIV is disabled as a matter of law. Here there is an additional reason why appellant is disabled as a matter of law: respondent "regarded or treated" her as a person with a disability.

Appellant's complaint against respondent alleges causes of action for disability discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51, et seq.)*fn2 and violation of the Confidentiality of Medical Information Act (CMIA) (§ 56, et seq.). She appeals from the judgment entered in respondent's favor after the trial court granted his motion for summary adjudication of the CMIA claim and the jury found that she is not disabled within the meaning of the Unruh Civil Rights Act.

The Legislature has determined that a person with HIV is disabled as a matter of law within the meaning of the Unruh Civil Rights Act. This is not a question for the jury. As a consequence, we reverse the judgment as to this cause of action. However, the trial court correctly granted respondent's motion for summary adjudication of the cause of action for violation of the CMIA because respondent did not disclose any individually identifying medical information.


Appellant is HIV-positive but has not yet developed AIDS. Since her diagnosis in 2006, appellant has been under the regular care of a primary care physician and an immunologist specializing in the treatment of infectious diseases. After her diagnosis, appellant had two separate surgeries in which each of her knees were replaced. Both surgeries were completed without incident. In late October 2008, with the consent of her immunologist, appellant stopped taking ARV medications because she was experiencing negative side effects.

Appellant developed a painful umbilical hernia. In January 2009, her primary care physician, Dr. Chase, referred her for hernia repair surgery. When Dr. Chase spoke with the surgeon, Dr. Rayhrer, she informed the surgeon that appellant is HIV-positive and not currently taking ARV medications.

Appellant met with the surgeon about one week later. While giving Dr. Rayhrer her complete medical history, appellant provided a list of the medications she was then taking. There were no ARVs on the list. Dr. Rayhrer wrote in her chart that appellant had "HIV without AIDS." Dr. Rayhrer ordered several laboratory tests for appellant and scheduled her for surgery. The tests ordered by Dr. Rayhrer did not relate to appellant's HIV-positive condition and did not determine her viral load. After reviewing the test results, Dr. Rayhrer was satisfied that appellant was a suitable candidate for surgery, notwithstanding her HIV-positive status. She scheduled appellant for the surgery.*fn3

On February 9, 2009, the day scheduled for her surgery, appellant arrived at the hospital and was taken to the pre-operative room where she was placed in a bed between two other patient-occupied beds that were separated by curtains. She gave the nurse a list of her medications, signed a hospital consent form and discreetly told the nurse that she was HIV-positive. The nurse was unfazed by this revelation and inserted an intravenous needle in appellant's arm.

A few minutes later, respondent appeared at appellant's bedside, fully dressed and prepared for surgery. He announced that he was going to be her anesthesiologist and began reviewing appellant's medical chart. Respondent quickly and loudly announced that appellant was HIV-positive. He commented that her chart contained no information on her viral load or T-cells and asked if she was on medications. Appellant told him she was not and gave him the name of her immunologist. Respondent then told appellant that he was not going to participate in the surgery. He left the room. When he came back a few minutes later, respondent told appellant that he had reached the surgeon, Dr. Rayhrer, and that the surgery was canceled. Appellant testified that respondent explained to her "that he wanted to keep himself safe and the people that he works with safe. That it was foolish to get involved where he didn't know what [appellant's] count was, and that [the surgery] was off." On respondent's orders, the nurse removed appellant's intravenous needle and escorted her out of the room.*fn4

Respondent testified that, when he understood appellant had stopped taking ARV medication prior to surgery, he left the room to telephone the surgeon. He asked whether she thought it was wise to continue with the surgery without knowing the patient's viral load, since the patient had started, and then stopped taking ARV medication. According to respondent, Dr. Rayhrer agreed the surgery should be postponed. Respondent wrote a note in appellant's hospital chart that read: "Patient with HIV positive off medications two months. Suggest workup by treating physician documenting viral loads and infectious status. Hopefully patient will be on meds or have documented nonviremic state for the safety of the operating room personnel."*fn5

After respondent informed appellant the surgery was canceled, the nurse removed her intravenous needle, she got dressed, and was escorted from the pre-operative room to the public waiting area. Appellant testified that she was humiliated and very upset by the experience. One of the nurses working in the pre-operative room that day overheard respondent talking to appellant about her HIV-status and why she was not taking certain medications. Appellant testified that she believed other patients in the room could hear respondent's statements to her. She also testified that, as she was being escorted out of the room, another patient acknowledged her with a sympathetic gesture.

Dr. Rayhrer testified that it is not unusual for her to perform surgery on an HIV-positive patient. In every surgery, the doctors, nurses and other staff take "universal precautions" to avoid the transmission of blood borne diseases, regardless of whether the patient is known to be HIV-positive. As a general rule, Dr. Rayhrer does not ask patients about their viral load prior to surgery. She explained, "I don't feel I need to be ordering the viral load because either I'm operating on an HIV patient because it's an emergency and the patient needs the surgery no matter what their viral load is, or I'm operating on a patient that is referred to me by a primary care doctor. They're usually well managed and so I don't normally order [a test to determine the patient's viral load] as a routine." Dr. ...

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