Few Precedents : AIDS--an Uncharted Legal Field
Luis Maura Jr. understands the discrimination that AIDS victims feel. When he was diagnosed as having the fatal illness, the 36-year-old attorney was fired by his Fort Worth law firm. He chose not to sue.
“I had no legal grounds because technically they were correct,” he said recently. “I could not commit to being there 60 to 70 hours a week because of my illness. . . . It was not the right camp to fight a battle.” He sought a better way to fight back.
Maura moved to West Hollywood where doctors re-diagnosed his illness as AIDS-related complex (ARC) rather than acquired immune deficiency syndrome (AIDS). For the first time, he publicly acknowledged his homosexuality. And he found his proper battleground.
Handful of Attorneys
First as a volunteer and then as an executive with the AIDS Project Los Angeles, Maura became one of a handful of attorneys in the United States who deal full time with the myriad legal problems of victims of AIDS, which has infected 18,576 people and killed 9,865 since 1981, according to the Centers for Disease Control in Atlanta.
Because law lags behind societal events, the legal caseload generated by AIDS has developed more slowly than the 5-year-old medical epidemic.
AIDS now touches virtually all areas of law from probate matters to criminal charges, but for the most part cases are so new that few have gone to trial or have been reviewed by the decisive higher courts. Without appellate opinions to guide them, scores of attorneys who work in major cities where AIDS is most prevalent have flocked to nearly a dozen recent seminars in New York, New Orleans, Washington, Chicago and Los Angeles for information about the disease itself and emerging AIDS law.
They have paid from $5 to $225 for one- or two-day crash courses in how to use the few city and state laws specifically banning discrimination against AIDS victims and in applying older laws prohibiting discrimination against anyone physically handicapped. Some pay $500 a year for newsletters detailing AIDS cases.
“It is difficult for lawyers to say ‘I don’t know,’ but here the questions are still developing. We really don’t know the answers,” said Deputy City Atty. Mary House, who oversees compliance with Los Angeles’ innovative anti-discrimination ordinance for AIDS victims. “Everyone who deals with these issues is on a slippery slope.”
“The law of AIDS is as broad as the law itself. To be an expert on AIDS law requires you to be an expert on all law, and nobody can be that,” Roger Kohn said. “But I’m building very good files, and I share them.”
Kohn, as head of the Los Angeles County Bar Assn.'s subcommittee on AIDS and confidentiality and privacy, addresses groups and provides free information on AIDS law to attorneys and other interested professionals.
“In any new area of law like this,” said Deputy City Atty. David I. Schulman, who works for House implementing the Los Angeles law, “the need for communication between attorneys is crucial to avoid reinventing the wheel.”
While attorneys in recent seminars speculated that AIDS litigation could increase dramatically, California lawyers dealing with the problem do not believe that AIDS cases will clog the courts.
‘Willing to Listen’
“I don’t see it as explosive as some of the predictions we heard a year or so ago. It is just not happening,” said Susan Sholley, an attorney with the Gay and Lesbian Community Services Center, who marshals a panel of 36 volunteer lawyers to help AIDS patients and homosexuals throughout Los Angeles County. “People are willing to listen to reason. People are basically open to education.”
“We expected a deluge of litigation a couple of years ago, but we’ve had eight cases in two years and that is not very much,” said Susan McGrievy of the American Civil Liberties Union of Southern California. “There is just not going to be the massive amount of litigation in this area that people think. The epidemic is leveling off. Education works.”
Lawyers, like health professionals, believe their greatest weapon in AIDS cases is education. Explain the law to an employer and convince him that AIDS can be spread only through blood and semen and not by normal contact of workers, they say, and the AIDS victim will not be fired.
Consequently, the developing AIDS cases end more often in negotiation or settlement than in trial.
“Our basic view is that because of the lack of law here we should do everything possible to get the cases resolved before going to a courtroom,” McGrievy said. “There is no guarantee of what will happen.”
Greatest Legal Need
While the greatest legal needs of AIDS victims themselves appear to be wills and death planning, those who have only been exposed to the disease or who have homosexual life styles causing them to be suspected AIDS carriers have a variety of continuing legal problems.
Litigants range from children kicked out of school to people who attempt to sell or buy houses or seek medical treatment to purported AIDS carriers who face criminal charges for biting law enforcement officers. Among the topics lawyers wrestle with are:
- Blood product liability. When 3-year-old Sammy Kushnick died of AIDS in 1983 after contracting it through blood transfusions, his parents, Jerry and Helen Kushnick, hired attorney Thomas V. Girardi to sue Cedars-Sinai Medical Center. Girardi has also sued Cedars on behalf of a nurse, Joan Burg, who contracted AIDS when she received blood transfusions during routine surgery.
“The total innocence of the Kushnick baby and Ms. Burg is a very positive factor in their ability to recover damages,” the veteran lawyer said. “Some jurors would take a harder line on those who got AIDS as a drug user, but when someone totally innocent of any antisocial conduct like drugs ends up with a devastating disease, I think most jurors would be sympathetic to them.”
- Right to attend school. Citing state laws excluding children with contagious diseases, school districts around the country have banned a small number of youngsters who contracted AIDS or tested positive for AIDS antibodies indicating exposure through blood transfusions. Although federal judges finally ordered a Kokomo, Ind., school to admit seventh-grader Ryan White after 15 months, parents of his classmates got a state court order banning him anew.
Civil rights attorneys have been encouraged by the decision last month of Orange County Superior Court Judge Harmon Scoville readmitting fifth-grader Channon Phipps to school after county health officials said he was not contagious.
Phipps, who is to be reevaluated Aug. 1, has AIDS antibodies, indicating that he has been exposed to the disease through blood transfusions used to treat his hemophilia. Medical experts estimate that no more than 30% of people exposed to AIDS will actually contract the disease.
- Right to receive medical treatment. Los Angeles attorney G. Merle Bergman, now 65, sued Los Angeles after paramedics refused to physically touch him on May 31, 1983, when he had a heart attack, claiming that he had “borderline AIDS.” Bergman, who does not have the disease, said the paramedics who arrived at his home concluded that he had AIDS because they saw a variety of medicines and because he was living with another man.
Bergman said he is encouraged by subsequent paramedic policies that promote safe handling of AIDS patients, including mouth-to-mouth resuscitation through a tube, and by passage of Los Angeles’ AIDS anti-discrimination ordinance, but he still intends to pursue his suit to help educate all health professionals.
- Exposure to AIDS. Marc Christian, 31, has sued the estate of actor Rock Hudson for $14 million, claiming that Hudson, his employees and doctors conspired to keep Hudson’s fatal AIDS diagnosis from him despite their sexual relationship. Health officials said blood tests have shown that Christian has no AIDS antibodies, indicating that he has not been exposed to the disease.
- Job discrimination. John Chadbourne, a quality control analyst for Raytheon in Goleta, Calif., was diagnosed as having AIDS in late 1983 and forbidden to return to work because his employer considered him a danger to other employees. Chadbourne died Jan. 6, 1985, but the California Fair Employment and Housing Department is pursuing a claim against Raytheon seeking monetary damages for Chadbourne’s family and a ban on future discrimination that could have statewide effect.
A First Attempt
A decision from the Fair Employment and Housing Commission, which oversees the department, is expected in about six months. Attorney Gloria Barrios said the case is the department’s first attempt to apply to AIDS victims a state law banning discrimination against the physically handicapped.
- Housing and real estate. After San Francisco attorney Jayne Kelly Roberts sued brokers and sellers for not revealing the illnesses of former owners of a $380,000 Berkeley house she planned to buy, the California Assn. of Realtors advised members that they could be sued for invasion of privacy if they disclosed that a seller had AIDS and that they could be sued for failure to disclose “material facts” about the house if they kept silent.
Roberts, who insisted that the case had nothing to do with AIDS and that as a mother of six who had twice had hepatitis she was concerned only because an owner had died of hepatitis, recovered $8,500 of her $10,000 deposit in a settlement. Bay Area lawyer Gary Wood said the suit prompted Coldwell Banker, a real estate firm, to virtually invite him to sue for court determination of whether the presence of AIDS should be disclosed.
A bill backed by the real estate association was introduced in the Legislature last month by Sen. David A. Roberti (D-Los Angeles) to excuse real estate agents from disclosing whether an owner had AIDS.
- Insurance. Attorney Wood recently filed two cases in San Francisco Superior Court challenging insurance carriers’ treatment of AIDS patients.
Sue Insurance Company
One suit was filed on behalf of AIDS victim James Litzenberger, who was prevented by Blue Cross from converting an employer health insurance policy to a personal one when illness forced him to leave work.
The second was on behalf of AIDS victim William Horner against Great Republic Life Insurance Co. and broker Richard Mignone after the company rejected his claim, saying that AIDS was a pre-existing condition. Wood claims that the AIDS diagnosis was made a month after Horner obtained the policy.
“We are seeing more discrimination against AIDS patients by insurance companies,” Wood said, “because it is getting to be expensive for them.” (Experts at a recent National Law Journal AIDS seminar in Washington said medical costs for AIDS patients can range from $45,000 to $140,000.)
Civil rights lawyers are also preparing to fight anticipated redlining or refusal to sell policies in geographical areas where high-risk potential AIDS victims live. “If you live in West Hollywood, are single, male and never married,” Maura predicted, “you will be denied coverage.”
- Criminal assault. Of three known criminal AIDS cases nationally, Flint, Mich., prosecutors have gone the furthest, charging AIDS victim John Richards in a pending case with felony assault with intent to commit murder. Richards spat on four police officers when they attempted to arrest him after a traffic accident, shouting that he was going to die and wanted to take them with him.
In a San Francisco case last year, Lyle Julius was allowed to plead guilty to misdemeanor assault and was sentenced to three months in jail and three years of probation after prosecutors were unable to win a court-ordered physical examination and blood test. Julius was arrested after he bit an officer and screamed, “I have got AIDS; you are going to die” as the officer attempted to arrest a woman for a traffic violation. San Francisco Assistant Dist. Atty. Robert R. Moore said he believes that the Michigan case is a “mistake” and that he would never initiate felony charges over spitting.
“But anytime someone intentionally tries to expose anyone to AIDS, it will go into the felony criminal sphere,” Moore said. “It is just like trying to kill someone with poison.”
San Diego County Deputy Dist. Atty. F. Dale Marriott of El Cajon agreed with Moore. Marriott recently prosecuted Blaine Prairie Chicken of the Sycuan Indian Reservation in eastern San Diego County after he bit an officer who tried to arrest him for drunkenness and disturbing the peace. Prairie Chicken shouted that he was homosexual, had AIDS and hoped that the officer would contract the disease.
Although Marriott won approval for a court-ordered blood test, San Diego County health officials refused to tell prosecutors the results, citing a state law that limits disclosure solely to victims.
Prairie Chicken pleaded guilty to assault, and sentencing is being delayed periodically to determine whether the officer develops AIDS. If so, Prairie Chicken will be sentenced to up to four years in prison under felony rules; if not, the charge will be a misdemeanor and his 109 days previously served probably will end the case.
“Our initial thought was to charge him with assault with intent to commit murder, as they did in Michigan, and I’m confident that had the factor of alcohol not been present that is what we would have done,” Marriott said. “But drunk, he had no ability to harbor intent. And secondly, it was never clear to us whether he really had AIDS.”
- Freedom of movement. Civil rights attorneys are particularly concerned about a proposed initiative by Lyndon LaRouche’s Democratic Policy Committee (no connection to the Democratic Party) that would quarantine AIDS carriers.
“If we haven’t outlived the World War II quarantine of the Japanese,” said the Los Angeles County Bar Assn.'s Kohn, “then the advances in civil liberties will take a real beating.”
Lawyers also continue to struggle with questions involving privacy rights, segregation of AIDS victims in prisons, child custody and visitation.
But the most pressing legal needs of actual AIDS victims remains wills, powers of attorney, instructions to medical personnel about extraordinary means to prolong life and other death planning.
Richard Berger, a probate and estate planning specialist, volunteered up to one-third of his professional time to handle such matters after a psychologist friend interested him in working with AIDS Project Los Angeles.
“When you have a lot, it doesn’t matter much. But when you have nothing, as these people do, it matters a whole lot. They care where their pictures go, where their pets go,” he said. “Solving those problems was restful to them. The most important thing I gave them was the confidence in knowing their legal affairs were taken care of.”