Lesley v. Hee Man Chie

United States Court of Appeals
For the First Circuit

No. 00-1254

VICKIE LESLEY,

Plaintiff, Appellant,

v.

HEE MAN CHIE, M.D.,

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Chief Judge,
Lynch and Lipez, Circuit Judges.

Bennett H. Klein, with whom Gay & Lesbian Advocates & Defenders
was on brief, for appellant.
Charles B. Straus, III, with whom Robert V. Deiana and Mirick,
O'Connell, DeMallie & Lougee were on brief, for appellee.
Donna E. Levin, General Counsel, Special Assistant Attorney
General, and Edmund J. Sullivan, Deputy General Counsel, on brief for
Department of Public Health of the Commonwealth of Massachusetts,
amicus curiae.
Carl Valvo and Cosgrove, Eisenberg and Kiley, P.C. on brief for
Massachusetts Medical Society and Professional Liability Foundation,
Ltd., amici curiae.
 May 22, 2001

LYNCH, Circuit Judge. Dr. Hee Man Chie, an obstetrician-

gynecologist, treated Vickie Lesley during her pregnancy in 1994 and

1995. After Lesley tested positive for HIV, Dr. Chie ended up

referring her to another hospital that, in his judgment, was better

qualified to handle deliveries by HIV-positive patients. The baby was

delivered there, safely and without HIV infection.

Two years later, Lesley sued Dr. Chie for damages. The gist

of her suit is that Dr. Chie denied her treatment solely because she

was HIV-positive, in violation of various disability discrimination

laws. The district court entered summary judgment in favor of Dr.

Chie, from which Lesley appeals. Lesley v. Chie, 81 F. Supp. 2d 217

(D. Mass. 2000). The case requires us to determine how far courts

should defer to a doctor's judgment as to the best course of treatment

for a disabled patient in the context of discriminatory denial of

treatment claims. We hold that the doctor's judgment is to be given

deference absent a showing by the plaintiff that the judgment lacked

any reasonable medical basis. Applying this standard to the case, we

affirm.

I.

The following facts are undisputed.

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 Vickie Lesley became pregnant in late 1994. In December, she

began seeing obstetrician-gynecologist Hee Man Chie for prenatal care.

Dr. Chie had been Lesley's gynecologist since 1982. He had admitting

privileges at Leominster Hospital, a community hospital in Leominster,

Massachusetts, where Lesley lived.

Lesley advised Dr. Chie of several preexisting medical

conditions. She had diabetes insipidus, a seizure disorder, and a

history of cervical dysplasia. She also suffered from manic depression,

for which she took lithium. Because lithium increases the risk of

fetal heart abnormalities, Dr. Chie ordered a fetal echocardiogram in

early March 1995. He also recommended, as he did routinely for his

patients, that Lesley be tested for Human Immunodeficiency Virus (HIV),

the virus that causes AIDS. Lesley tested positive for HIV.

While Dr. Chie had treated patients with HIV in his

gynecological practice, he had never delivered the baby of a woman with

HIV. Thus, before Lesley's appointment to discuss her test results,

Dr. Chie inquired about the proper treatment for pregnant women with

HIV.

About a year earlier, in February 1994, the National

Institutes of Health (NIH) had sponsored a clinical trial to administer

the drug AZT to pregnant women with HIV. The trial had three

components. Women took AZT orally during pregnancy; they then received

it intravenously during labor and delivery; and after birth, the

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newborn was given AZT syrup. According to the results of the trial,

the three-part treatment reduced the risk of transmitting HIV to

newborns from 25.5 percent to 8.3 percent. Based on this success rate,

the United States Public Health Service published guidelines for

administering AZT during pregnancy in August 1994.

In November 1994, the Massachusetts Department of Public

Health (MDPH) mailed a Clinical Advisory to all obstetricians in the

state. The Clinical Advisory reproduced the U.S. Public Health Service

guidelines for AZT treatment, including a fixed dosage schedule for

oral and intravenous administration. The advisory also urged doctors

to discuss the treatment with their patients. In an amicus brief,1 the

MDPH states: "It was the Department of Public Health's intent when it

issued the Clinical Advisory that these established steps to prescribe

and monitor AZT be immediately implemented by any licensed

obstetrician, including community obstetricians such as Dr. Chie." The

test for monitoring AZT's side effects is a complete blood count and

liver function test. According to the MDPH: "These two blood tests are

regularly used by obstetrician/gynecologists as part of prenatal care."

Dr. Chie in fact used the same tests to monitor the side effects of

Lesley's anti-depressant medication.

1 We acknowledge with appreciation the amicus brief filed by
the Massachusetts Department of Public Health, as well as that filed by
the Massachusetts Medical Association and the Professional Liability
Foundation.

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 At his deposition, Dr. Chie said that he read the MDPH

Clinical Advisory when he received it in late 1994. Subsequently,

after learning that Lesley had tested positive for HIV, he called the

Leominster Hospital pharmacy to determine whether AZT was available for

delivery, as the Clinical Advisory recommended. The Advisory states:

"Consultation with the hospital pharmacist regarding ZDV [AZT]

availability and drug preparations should be done prior to any

projected need to avoid delay in initiating any part of this protocol."

The pharmacy told Dr. Chie that AZT was not yet available, and that he

would have to call Leominster's Pharmaceutics & Therapy (P & T)

Committee to get the drug approved. Dr. Chie also called Sheila Noone,

a nurse who coordinated the Women and Infants HIV Program at Worcester

Memorial Hospital. The HIV Program had been one of eight facilities

nationwide to participate in the 1994 NIH clinical trial of AZT and

served as a clinic for pregnant women with HIV, operating in

conjunction with the University of Massachusetts Medical Center, an

academic teaching hospital. Nurse Noone discussed AZT treatment with

Dr. Chie, and told him that he could either consult with her about

Lesley's case, or enroll Lesley in Worcester Memorial's HIV Program so

that she could deliver her baby there.

On March 20, 1995, Lesley and her husband met with Dr. Chie.

The doctor told them about the HIV Program at Worcester Memorial and

gave them Nurse Noone's name and telephone number. Dr. Chie told

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Lesley he had no experience administering AZT. Lesley expressed

confidence in his abilities and made a follow-up appointment for March

30. In the interim, she met with Nurse Noone and signed up for

counseling and other support services offered by the HIV Program, but

planned to continue her prenatal care with Dr. Chie and to deliver her

baby at Leominster.

Before the follow-up appointment, Dr. Chie contacted Dr.

Man, chairman of Leominster's P & T Committee, and asked for AZT to be

made available at the hospital pharmacy and for a protocol to be put in

place for administering the drug intravenously at labor and delivery.

Such a protocol would have included notifying physicians that AZT was

available for use during pregnancy and delivery, and giving nurses in-

service training on the procedures for administering the drug. Dr. Man

assured Dr. Chie that he would bring up approval of a protocol at the

next P & T Committee meeting.

Dr. Chie also spoke to other obstetricians at Leominster,

including the head of the obstetrics-gynecology department, Dr. Schatz.

None of the doctors with whom Dr. Chie spoke had experience with HIV

pregnancies or administering AZT. Dr. Schatz advised Dr. Chie to

consult with a high-risk perinatologist at Worcester Memorial about

Lesley, although he did not specifically recommend that she be

transferred. Dr. Chie also called Lesley's primary care doctor, Dr.

Fraser, explained the situation to him, and told Dr. Fraser that, while

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he had not made up his mind, he probably would have to transfer Lesley

to Worcester Memorial, and in such case he would need Dr. Fraser's

approval. Around this same time, Dr. Chie spoke further with Nurse

Noone, who again offered either to serve as a consultant to Dr. Chie in

treating Lesley or to help him arrange for a transfer.

On March 30, Dr. Chie called the Leominster pharmacy again

to inquire whether AZT had been made available. The pharmacy reported

that it was still awaiting approval for the drug from the P & T

Committee.2

At Lesley's March 30 appointment, Dr. Chie told her he had

decided to transfer her case to Worcester Memorial's HIV Program. Dr.

Chie's March 30 notes for Lesley's chart state: "Discussed with

[patient] AZT program at UMass. No AZT program at L Hosp. Plan:

Transfer patient to UMHosp." Dr. Chie said of his explanation to

Lesley:

I told her . . . We don't have AZT program at
Leominster Hospital. . . . I told her I'd talk
to other obstetrician[s], including Dr. Schatz,
and if anybody have experience; but none of them
has experience using the AZT. I was looking for
help. I have no -- I looked through all the
books. I learn everything myself. . . . I have
no experience using the AZT, and I have no
confidence of using the AZT myself. But . . .
there's a program in Worcester, Sheila Noone,
give us some report about how good the result
after the trial of those AZT medications. With

2 Intravenous AZT became available at Leominster Hospital on
April 26, 1995 in preparation for delivery by another patient with HIV.

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 that convincing result, I -- I sent her to the
AZT program.

In response, Lesley told Dr. Chie that she wanted to remain

under his care and to give birth at Leominster because it was her

community hospital. Lesley, herself a trained psychiatric nurse, said

that all she needed for treatment was a prescription for oral AZT, and

an IV line for administering the drug during labor and delivery. She

urged Dr. Chie to consult with Nurse Noone at the HIV Program and to

get AZT approved at Leominster. Dr. Chie refused to continue treating

Lesley.

Lesley went to the HIV Program at Worcester Memorial for her

remaining prenatal visits. Worcester Memorial is located about 45

minutes by car from Leominster Hospital and from Lesley's home. She

delivered her baby there on July 10, 1995, five weeks before her due

date. Lesley acknowledges that she received satisfactory care from the

HIV Program. Her baby tested negative for HIV at birth and in follow-

up tests.

II.

On March 19, 1997, Lesley filed a complaint in the

Massachusetts Superior Court against Dr. Chie, stating that his

decision to transfer her to the HIV Program at Worcester Memorial

rather than treat her himself violated her rights under § 504 of the

Rehabilitation Act, the Americans with Disabilities Act (ADA), and the

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Massachusetts Public Accommodation Statute, Mass. Gen. Laws ch. 272 §

98. Dr. Chie removed the action to federal court on April 21. On June

25, the parties stipulated to dismissal of Lesley's ADA claim.

In support of their cross-motions for summary judgment on the

remaining claims, both Lesley and Dr. Chie presented expert testimony.

Lesley's expert, Dr. Howard Minkoff, served on the U.S. Public Health

Service task force that recommended AZT therapy for pregnant women with

HIV. In his sworn statement, Dr. Minkoff said administering oral and

intravenous AZT during pregnancy and delivery was "straightforward" and

did not require "specialized knowledge beyond that possessed by a

licensed practitioner of obstetrics." In Dr. Minkoff's opinion,

"[t]here is no medical basis for a licensed practitioner of obstetrics

to refer an HIV-positive pregnant woman to a high risk clinic . . .

based on HIV-positive status alone." In its amicus brief, the MDPH

states its agreement with Dr. Minkoff's conclusions.3

In support of Dr. Chie, Dr. Bruce Cohen, a specialist in

high-risk obstetrics, focused on Lesley's complex combination of

psychiatric and medical problems. Dr. Cohen said: "To have denied such

3 MDPH said that it "has determined that no specialized
knowledge beyond that possessed by a licensed obstetrician/
gynecologist is necessary to provide prenatal and obstetrical care to
pregnant women with HIV, including prescribing and monitoring
medications to reduce HIV transmission from mother to fetus. The
Department has also concluded that there is no medical justification to
transfer a pregnant woman to a specialist or to a high risk clinic,
based on HIV-positive status alone. These principles were as true in
March 1995 as they are today."

-9-
a complicated and high risk patient as Mrs. Lesley the available

quality care which the situation demanded would have been unethical."

Dr. Bonnie Herr, a community-based obstetrician, said that at the time

Dr. Chie transferred Lesley, "knowledge and experience in the

management of HIV-positive pregnant patients among obstetrician-

gynecologists in the general medical community (i.e., outside of

teaching centers) was limited." Dr. Howard Heller, an associate

physician at Brigham & Women's Hospital, agreed that after publication

of the MDPH Clinical Advisory in November 1994, it took several months

for most hospitals and obstetricians to institute and implement AZT

treatment "since it required a coordinated effort within each hospital

and was not under the control of an individual obstetrician." Because

of the "many components" involved in AZT treatment, and the lack of

assurance that these components would be in place at Leominster in time

for Lesley's labor and delivery, it would have been "medically

inappropriate" for Dr. Chie to continue treating Lesley, Dr. Heller

said.

On January 7, 2000, on cross-motions from the parties, the

district court granted summary judgment for Dr. Chie. The court found

that Lesley had presented no evidence that Dr. Chie's decision to

transfer Lesley to Worcester Memorial's HIV Program was medically

inappropriate under the totality of the circumstances. Hence the court

-10-
found that the doctor's decision did not constitute discrimination

solely on the basis of HIV status.

III.

Our review of the district court's summary judgment

determination is de novo. Equal Employment Opportunity Comm'n v.

Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997).

We dispose of some preliminaries. Section 504 of the

Rehabilitation Act provides that:

No otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance . . . .

29 U.S.C. § 794(a). Thus, to prevail on her § 504 claim, Lesley must

prove four elements. She must show (1) that she is disabled; (2) that

she sought services from a federally funded entity; (3) that she was

"otherwise qualified" to receive those services; and (4) that she was

denied those services "solely by reason of her . . . disability."

The parties do not dispute the first two elements. Lesley's

HIV-positive status is a disability for purposes of the Act. Bragdon

v. Abbott, 454 U.S. 624, 631 (1998). Dr. Chie's receipt of Medicaid

funds makes him a federally funded entity for purposes of the Act. See

Lesley, 81 F. Supp. 2d at 222-23. The parties do dispute the third

element, whether Lesley was "otherwise qualified" to receive the

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services she sought. But we do not address this issue,4 as we resolve

the case based on the fourth element.

The essential question is whether plaintiff's evidence

presents a triable issue as to whether she was denied treatment "solely

by reason of her disability." Lesley characterizes Dr. Chie's decision

to transfer her as a discriminatory act cloaked as an exercise of

medical judgment. She argues that the testimony of her experts

demonstrates that Dr. Chie was perfectly competent to treat her,

implying that the claimed medical basis for his decision was

pretextual. In mirror fashion, Dr. Chie characterizes Lesley's suit as

an attack on his medical judgment, thinly veiled as a disability

discrimination claim. He argues that the Rehabilitation Act was never

intended to interfere with bona fide medical judgments as to how best

to treat a patient with a disability. Thus, this case requires us to

4 We recognize that several circuits have held that a disabled
plaintiff cannot be considered "otherwise qualified" for medical
treatment if she would not have needed the treatment absent her
disability. See Grzan v. Charter Hosp., 104 F.3d 116, 120-21 (7th Cir.
1997); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996); Johnson v.
Thompson, 971 F.2d 1487, 1493-94 (10th Cir. 1992), cert. denied, 507
U.S. 910 (1993); United States v. Univ. Hosp. S.U.N.Y. at Stony Brook,
729 F.2d 144, 156-157 (2d Cir. 1984). Partly because we are unsure of
the wisdom of such an approach, and partly because we find it awkward
to speak in terms of a person being "qualified" for medical care, cf.
Woolfolk v. Duncan, 872 F. Supp. 1381, 1388 (E.D. Pa. 1995), we prefer
to approach the case by way of § 504's "solely by reason of disability"
prong.

-12-
explore the extent to which the Rehabilitation Act contemplates

judicial scrutiny of alleged exercises of medical judgment.5

We start with the obvious: the Rehabilitation Act does not

bar a doctor from referring a disabled patient elsewhere simply because

the medical reasons for the referral are related to the patient's

disability. It would be nonsensical, and downright contrary to the

purposes of the statute, to read the statute's "solely because of"

language to prohibit medical treatment that is appropriate "solely

because of" a patient's disability.6 As Congress made clear in the

legislative history of the Americans with Disabilities Act, the

disability laws are not intended to prevent a physician from referring

a disabled patient "if the disability itself creates specialized

5 We want to make clear what this case is not about. This case
is not about a doctor explicitly refusing to treat a disabled person
out of fear for his own health, cf. Bragdon v. Abbott, 524 U.S. 624
(1998); nor does it otherwise involve the "direct threat to others"
provision of § 504, cf. School Bd. of Nassau Cty. v. Arline, 480 U.S.
273 (1987); EEOC v. Amego, 110 F.3d 135 (1st Cir. 1997). Nor is it a
case in which plaintiff claims she was denied a reasonable
accommodation by her doctor. Cf., e.g., Davis v. Flexman, 109 F. Supp.
2d 776 (S.D. Ohio 1999) (clinic refused to provide sign-language
interpreter to hearing-impaired patients).
6 Indeed, such a prohibition would not only be nonsensical; it
would be unethical. As one commentator has noted: "Ethical medical
decision-making should take into account all medical factors --
disability-related or not -- affecting a patient's condition and
prognosis. Thus, to read the ADA as prohibiting a medical decision-
maker from considering medical factors flowing from a disability would
put the disabled patient . . . in a different, arguably worse, position
than the nondisabled patient . . . ." M. Crossley, Of Diagnoses and
Discrimination: Discriminatory Nontreatment of Infants with HIV
Infection, 93 Colum. L. Rev. 1581, 1655 (1993) (citation omitted).

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complications for the patient's health which the [referring] physician

lacks the experience or knowledge to address." H.R. Rep. No. 101-485,

pt. 2, at 106 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 389; see also

Katz v. City Metal Co., 87 F.3d 26, 31 n.4 (1st Cir. 1996) (Section 504

of the Rehabilitation Act "is interpreted substantially identically to

the ADA").

What is not as clear, and what is at issue in this case, is

the extent to which a court should defer to a physician's claim that he

lacks the experience, knowledge, or other prerequisites necessary to

address the medical conditions that allegedly prompted his referral.

Two countervailing concerns bear on the question.

On the one hand, courts cannot simply defer unquestioningly

to a physician's subjective judgment as to whether his referral was

proper. Physicians, of course, are just as capable as any other

recipient of federal funds of discriminating against the disabled, and

courts may not turn a blind eye to the possibility that a supposed

exercise of medical judgment may mask discriminatory motives or

stereotypes. See Glanz v. Vernick, 756 F. Supp. 632, 638 (D. Mass.

1991) ("A strict rule of deference would enable doctors to offer merely

pretextual medical opinions to cover up discriminatory decisions.");

cf. Cook v. Rhode Island, 10 F.3d 17, 26-27 (1st Cir. 1993) (employer's

subjective judgment that disabled plaintiff was not qualified for job

insufficient to thwart liability).

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 On the other hand, courts should not probe so far into a

doctor's referral decision as to inquire whether it was the correct or

best decision under the circumstances, or even whether it met the

standard of care for the profession. Lest questions of medical

propriety be conflated with questions of disability discrimination, it

must take more than a mere negligent referral to constitute a

Rehabilitation Act violation. Were the Act construed otherwise, so as

effectively to impose on physicians a special, disability-centric duty

of care, physicians would face potentially conflicting state and

federal legal obligations. That is, to avoid state malpractice

liability, a physician might wish to err on the side of caution by

referring a patient with disability-related complications to a better

qualified specialist or more advanced facility; yet under the

Rehabilitation Act, as hypothetically construed, the physician who did

so would risk being found liable for discrimination. We cannot believe

that Congress would have intended the Act to so interfere with the

doctor-patient relationship, especially when that relationship is

thoroughly regulated by the states.7 Cf. Bowen v. Am. Hosp. Assoc.,

476 U.S. 610, 643 (1986) (Rehabilitation Act does not "envision[]

federal superintendence of treatment decisions traditionally entrusted

7 Indeed, in the preemption context, the courts have routinely
recognized "the historic primacy of state regulation of matters of
health." Backman Co. v. Plaintiffs' Legal Comm., ___ U.S. ___, 121 S.
Ct. 1013, 1017 (2001), slip op. at 6 (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 485 (1996).

-15-
to state governance"); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.

1996) ("The ADA does not create a remedy for medical malpractice.").8

Avoiding both a rule giving physicians complete deference and

a rule requiring a full-fledged inquiry into their diligence, we head

for the middle ground9 and adopt the following standard. Under the

Rehabilitation Act, a patient may challenge her doctor's decision to

refer her elsewhere by showing the decision to be devoid of any

reasonable medical support. This is not to say, however, that the

Rehabilitation Act prohibits unreasonable medical decisions as such.

Rather, the point of considering a medical decision's reasonableness in

this context is to determine whether the decision was unreasonable in

a way that reveals it to be discriminatory. In other words, a

plaintiff's showing of medical unreasonableness must be framed within

8 We have expressed parallel concerns in other contexts. See
Amego, 110 F.3d at 145 (noting the need, in the context of employment
discrimination claims under the ADA, for "special sensitivity to the
danger of the court becoming a super-employment committee"); Wynne v.
Tufts Univ. Sch. of Med., 932 F.2d 19, 25 (1st Cir. 1991) (en banc)
("When judges are asked to review the substance of a genuinely academic
decision, . . . they should show great respect for the faculty's
professional judgment." (quoting Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 225 (1985)); Villanueva v. Wellesley Coll., 930 F.2d 124,
129 (1st Cir. 1991) (court should not sit as a "super-tenure
committee" in deciding a discrimination claim based on denial of
academic tenure).
9 Cf. Alexander v. Choate, 469 U.S. 287, 299 (1985) ("Any
interpretation of § 504 must [ ] be responsive to two powerful but
countervailing considerations -- the need to give effect to the
statutory objectives and the desire to keep § 504 within manageable
bounds.").

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some larger theory of disability discrimination. For example, a

plaintiff may argue that her physician's decision was so unreasonable

-- in the sense of being arbitrary and capricious -- as to imply that

it was pretext for some discriminatory motive, such as animus, fear, or

"apathetic attitudes." Alexander v. Choate, 469 U.S. 287, 296 (1985);

see, e.g., Howe v. Hull, 874 F. Supp. 779, 788-89 (N.D. Ohio 1994)

(under ADA, jury could find doctor's diagnosis that plaintiff had

extremely rare disorder requiring transfer was pretextual, where

patient only had an allergic drug reaction, and doctor did not mention

the rare disorder in requesting the transfer but only mentioned

plaintiff's HIV-status). Or, instead of arguing pretext, a plaintiff

may argue that her physician's decision was discriminatory on its face,

because it rested on stereotypes of the disabled rather than an

individualized inquiry into the patient's condition -- and hence was

"unreasonable" in that sense. See, e.g., Sumes v. Andres, 938 F. Supp.

9, 11-12 (D.D.C. 1996) (issuing summary judgment against doctor who

refused to treat deaf patient on ground that "all deaf people are high

risk," without making any inquiry regarding her specific condition).

Lesley does not come close to making either form of

showing.10 Lesley argues that Dr. Chie's decision to transfer her was

10 The district court and the parties have assumed that
plaintiff's showing is governed by the familiar burden-shifting
paradigm applied in Title VII employment discrimination cases. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); see also Pushkin v.

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so lacking in any reasonable medical support as to suggest it was

pretext for discrimination. But any claim that Dr. Chie sought to hide

some discriminatory motive is belied by the fact that Dr. Chie had

knowingly treated other HIV-positive patients in the past; likewise, he

continued to treat Lesley for some time after learning she was HIV-

positive. See Johnson v. Thompson, 971 F.2d 1487, 1494 (10th Cir.

1992) ("If others with the same handicap do not suffer the

discrimination, then the discrimination does not result 'solely by

reason of [the] handicap.'").11 Nor can Lesley plausibly claim that Dr.

Chie transferred her on the basis of stereotypes concerning her HIV-

positive status. Dr. Chie did not abruptly assume that delivering the

baby of an HIV-positive patient was beyond his capability; he came to

Regents of Univ. of Colo., 658 F.2d 1372 (10th Cir. 1981) (applying
burden-shifting paradigm in Rehabilitation Act case). But we have
rejected use of the paradigm in ADA reasonable accommodation cases.
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir.
1999). And we are far from certain that the model applies in a case
such as this, where the plaintiff's case begins and ends with an attack
on the professional judgment of the defendant. Thus, without using the
burden-shifting model, we simply assume dubitante that the evidence
Lesley has put forward is sufficient to require us to consider Dr.
Chie's reasons for his referral.
11 This is of course not to say that in every context a
defendant's past record of equal treatment undercuts an inference of
discrimination in a particular case. Cf., e.g., Wagner v. Fair Acres
Geriatric Ctr., 49 F.3d 1002, 1016 n. 15 (3d Cir. 1995) (fact that
nursing home admitted other Alzheimer's disease patients does not rule
out possibility that it discriminated against plaintiff by failing to
reasonably accommodate her Alzheimer's disease, given that plaintiff
suffered from a distinctly more severe form of the disease more
difficult to accommodate).

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that conclusion based upon a "fact-specific and individualized"

inquiry. Cook, 10 F.3d at 27 (quoting School Board of Nassau Cty. v.

Arline, 480 U.S. 273, 287 (1987)). Moreover, his decision was

confirmed at the time by Dr. Fraser, Lesley's primary care physician

and managed care gatekeeper, who had to approve Lesley's transfer; and

the decision was also confirmed by Nurse Noone, who from the start

suggested referral as a perfectly acceptable treatment option available

to Dr. Chie.12 The combination of these factors -- Dr. Chie's

demonstrated willingness to treat HIV-positive patients he felt

competent to treat, and the fact that his decision not to treat Lesley

was made pursuant to an individualized inquiry and was confirmed by

independent, knowledgeable persons at the time -- makes it impossible

for Lesley to succeed in showing that Dr. Chie's decision was

discriminatory.

Even putting aside Dr. Chie's demonstrated willingness to

treat other HIV-positive patients, Lesley's insistence that Dr. Chie's

proffered medical justification for transferring her was so

unreasonable as to imply it was "pretext" does not find sufficient

support in the evidence. Lesley points to the MDPH Clinical Advisory

as evidence that the prevailing medical opinion at the time was that

12 It is noteworthy that even Lesley's psychiatrist shared Dr.
Chie's opinion, advising Lesley that her pregnancy "was not a case that
should be treated at a community hospital, but should be treated in a
university hospital."

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any licensed obstetrician was capable of administering AZT. As proof

of the same point, she invokes the testimony of her expert, Dr.

Minkoff, in whose opinion the administration of AZT during pregnancy

and delivery does not require any specialized knowledge beyond that of

an ordinary obstetrician.

It is true that in Bragdon v. Abbott, supra, the Supreme

Court accorded "special weight and authority" to the view of public

health officials in determining whether a medical provider could

permissibly refuse to treat an HIV-positive patient, where the provider

feared for his health. See 524 U.S. at 650; see also 42 U.S.C. §

12182(b)(3) ("Nothing [in the ADA] shall require an entity to permit an

individual to participate in or benefit from the . . . accommodations

of such entity where such individual poses a direct threat to the

health or safety of others."). However, even in that context, the

Court emphasized that a provider's deviation from the prevailing

medical consensus is entitled to deference so long as it rests on a

"credible scientific basis," id., a standard substantially similar to

the one adopted here.

But more importantly, we do not believe that the Court's

remarks in Bragdon carry over to the present context. At issue in

Bragdon was whether there existed a "direct threat" to the health of

others. The "direct threat" defense may be claimed in all sorts of

contexts -- by employers, educators, and so on. In Bragdon, the Court

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simply made clear that physicians have no special privilege to use the

defense as an impenetrable shield. See 524 U.S. at 649 ("[P]etitioner

receives no special deference simply because he is a health care

professional."). By contrast, here what is at issue is not the health

of others but the health of the patient herself. That is a matter

uniquely entrusted to the care of her physician. In order to protect

the professional autonomy of the physician in administering that care,

it is necessary to defer to the physician's reasoned judgment. A

physician's mere disagreement with prevailing medical opinion thus

cannot serve as grounds for an inference of discrimination. Only where

the physician's judgment is entirely without any reasonable medical

basis may such an inference be warranted.13

Lesley's evidence of prevailing medical opinion does not

suffice to show that Dr. Chie's decision lacked any reasonable medical

basis. The evidence proffered merely goes toward proving that in 1995,

as a general matter, a licensed obstetrician would have been competent

to administer AZT to an HIV-positive patient. However, as Bragdon

itself demonstrates, statements of prevailing medical opinion should

not be read so broadly as to sweep case-specific factors under the rug.

13 There is a second reason why deference to the provider is
more appropriate in a case like this than in a case like Bragdon.
Bragdon concerned a provider's judgment about risks posed to his own
health -- a matter in which the provider's admitted self-interest may
be expected to color his professional judgment. By contrast, Dr.
Chie's judgment concerned not what was best for the provider but what
was best for the patient.

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See 524 U.S. at 651-52 (statement advising that certain precautions

"should reduce the risk of disease transmission in the dental

environment" did not rule out possibility that additional precautions

sought by defendant could reduce risk further). While it may have been

generally true at the time that a licensed obstetrician could

administer AZT to an HIV-positive patient, nothing said by the MDPH or

Dr. Minkoff suggests that an obstetrician's referral of such a patient

would have been inherently unreasonable.14

Rather, reasonableness depends on the circumstances, and here

a number of circumstances supported Dr. Chie's judgment to transfer

Lesley elsewhere. First, despite its endorsement by the MDPH,

intravenous administration of AZT during delivery was still a recent

development in obstetrics with which Dr. Chie reasonably felt

unfamiliar; as Nurse Noone testified in deposition, "Things were

changing pretty quickly back in those days. . . . It was really -- at

that point, this was all very new . . . ." Second, Dr. Chie had reason

14 Indeed, neither the MDPH's amicus brief nor Dr. Minkoff's
testimony specifically concludes that Dr. Chie's referral was
unreasonable given the totality of the circumstances of this case.
Both merely state in the abstract that licensed obstetricians are
capable of performing the types of tasks necessary to administer AZT to
HIV-positive pregnant women and that there is no medical basis for an
obstetrician to refer an HIV-positive pregnant woman based on HIV-
positive status alone. Even if Dr. Minkoff's general statements about
the care of HIV-positive obstetric patients were taken as a commentary
about Leslie's case, such evidence does not suffice given that it does
not take into account the case-specific factors that, according to Dr.
Chie, motivated his decision to transfer Lesley.

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to worry that Leominster Hospital would not be adequately prepared and

equipped to administer AZT in time for Lesley's delivery; as of March

30, 1995, the date of Dr. Chie's referral, when Lesley was at 20 weeks

gestation and at significant risk for premature delivery, AZT had yet

to be made available to Leominster's pharmacy and a protocol for

administering the drug had yet to be put in place. Third, Worcester

Memorial was close by; and as one of eight clinics nationally to

participate in the study on which the MDPH Clinical Advisory was based,

it obviously could be trusted to provide Lesley a high level of care.15

In these circumstances, even if Dr. Chie's decision stemmed

from an overabundance of caution, by no means can the decision be

thought to lack any reasonable medical basis. The decision was simply

a reasoned medical judgment with which the patient disagreed. As to

such disagreements, when they warrant litigation, state medical

malpractice law, not the Rehabilitation Act, provides the appropriate

law of resort. That Lesley could not possibly succeed on a medical

malpractice claim on the facts of this case speaks again to the danger

15 The parties dispute the extent to which Lesley's non-HIV
related complications, such as the risk of fetal heart abnormalities
posed by her use of lithium, had anything to do with Dr. Chie's
referral decision and, if so, whether his reliance on these factors was
justified. Whatever the case, it is clear that the primary reasons for
Dr. Chie's decisions are the ones cited in the text, and they are
sufficient to convince us that his decision was not without medical
basis.

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of the Rehabilitation Act being abused as an alternative frame for such

claims.16

We recognize the scope of the HIV epidemic and the importance

of ensuring equal access to health care for those infected with the

virus. Thus, we reiterate that a doctor cannot escape potential

liability under the Rehabilitation Act merely by casting his refusal to

treat as an exercise of medical judgment: such judgment must be the

reasoned result of an individualized inquiry. At the same time,

however, the Rehabilitation Act cannot be pressed into service as a

vehicle for disputes over the propriety of debatable treatment

decisions. And the propriety of such a decision is all we find to be

at issue in this case.

In short, no rational jury could conclude on this evidence

that Dr. Chie's referral of Lesley to Worcester Memorial constituted

denial of treatment "solely by reason of her disability."17 Summary

judgment was therefore appropriate.

16 Typically, negligent referral claims arise where the patient
is referred to an unqualified provider. See, e.g., Estate of Tranor v.
Bloomsburg Hosp., 60 F. Supp. 2d 412, 416 (M.D. Pa. 1999) (doctor's
referral to specialist whom he has reason to know is incompetent to
treat patient is basis for malpractice liability).
17 For the same reasons Lesley may not succeed on her state
claim under the Massachusetts Public Accommodation statute, Mass. Gen.
Laws ch. 272 § 98. Interpretation of state disability laws like this
one goes "hand in hand" with interpretation of the federal disability
laws. Abbott v. Bragdon, 107 F.3d 934, 937 n.1 (1st Cir. 1997), aff'd
in part, rev'd in part, 524 U.S. 624 (1998).

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Affirmed. Costs to appellees.

Concurrence follows.

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 LIPEZ, Circuit Judge, concurring. I concur with the

result reached by the majority because I think that Dr. Chie's

evidence shows that his decision to transfer Lesley was medically

reasonable. However, we do not have to decide in this case, as the

majority does, that a plaintiff like Lesley must show medical

unreasonableness "within some larger theory of disability

discrimination," such as animus, fear, apathetic attitudes, or

stereotyping, to avoid a possible conflict between § 504 of the

Rehabilitation Act and state medical malpractice law, or undue

intrusion on the doctor-patient relationship. Given the emerging

nature of disability law and the high stakes involved, we should only

decide those difficult and important issues when we must.

As the majority notes, "Lesley argues that Dr. Chie's

decision to transfer her was so lacking in any reasonable medical

support as to suggest it was pretext for discrimination." The

premise of Lesley's argument is wrong simply because there is

reasonable medical support for Dr. Chie's decision. The majority

demonstrates this point convincingly, for example by pointing to such

evidence as Leominster Hospital's lack of an AZT protocol at the time

Lesley was transferred. Since Lesley loses on that case-specific

basis alone, there is no basis for finding pretext. Yet the majority

goes on to make the general point that a § 504 plaintiff like Lesley

must always show that a doctor's decision not to treat her "was

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unreasonable in a way that reveals it to be discriminatory." I

understand this rule to mean that a disabled patient has no recourse

under § 504 when a doctor decides to transfer the patient to another

health-care provider after explicit consideration of the medical

effects of his or her disability, even if there is no reasonable

medical evidence to support the decision not to treat, unless the

absence of reasonable medical evidence permits an inference of some

discriminatory motive, such as animus, fear, or stereotyping of the

disabled.

This may be a good rule, and the majority presents the

arguments for it well. But there are also reasons for caution.

There is nothing in the language of § 504 that dictates or even

suggests that an actionable exclusion from participation in a federal

program or an actionable denial of federal benefits may not occur

apart from a showing of discrimination. See 29 U.S.C. § 794 ("No

otherwise qualified handicapped individual . . . shall, solely by

reason of her or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance."). If a doctor's decision not to treat the medical

effects of a patient's disability, and transfer the patient

elsewhere, is based only on an unreasonable medical judgment, it can

be argued that the denial of services to the patient is "solely by

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reason of her or his disability." Id.

Moreover, although I share the majority's concern about

undue interference with the doctor-patient relationship through

Rehabilitation Act claims, I question whether claims such as Lesley's

pose that threat in one of its most troubling forms -- the "battle of

experts" at trial requiring a factfinder to choose between a doctor's

and a patient's competing versions of the right treatment. In

Bragdon v. Abbott, 524 U.S. 624 (1998), the Supreme Court said that

the views of public health authorities have "special weight and

authority" in assessing the reasonableness of a doctor's actions.

Id. at 650. However, the Court also said that "[a] health care

professional who disagrees with the prevailing medical consensus may

rebut it by citing a credible scientific basis for deviating from the

accepted norm." Id. In other words, when competing views exist side

by side at summary judgment, with the plaintiff's experts

representing the prevailing practice and the defendant's experts

representing a contrary but reasonable view, the court may still

grant summary judgment to the defendant without deciding who is

right. In my view, Lesley's evidence -- Dr. Minkoff's testimony, the

MDPH Clinical Advisory, and the U.S. Public Health Service guidelines

-- represents the "prevailing medical consensus" that any licensed

obstetrician is qualified to administer AZT. Id. However, the expert

testimony offered on behalf of Dr. Chie justifies summary judgment by

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providing a "credible scientific basis" for Dr. Chie's deviation from

the accepted norm. Id.

Although I agree with the majority that Lesley’s case is

unlike Bragdon v. Abbott, 524 U.S. 624 (1998), because it involves a

doctor's concern about a potential threat to the health of his

patient rather than to his own health, this is still a denial of

services case. What is at issue here is not Dr. Chie's improper

medical treatment of Lesley -- the standard bad medicine malpractice

claim -- but his decision not to treat her and instead to send her to

another health-care provider. Because I see the case in this way, I

do not share the majority's concern that we must use this case to

announce a rule that will bar the federalization of state medical

malpractice law and undue intrusion on the doctor-patient

relationship under the aegis of the Rehabilitation Act.

To be sure, rules are important in establishing the

parameters of litigation. But we should not establish rules

prematurely. We know that careful, case-specific judicial inquiry

has already helped to resolve difficult denial of treatment claims.

One commentator has noted that "Bragdon v. Abbott and the cases

involving pretextual referrals illustrate how the ADA can act as a

powerful limit on the ability of health care providers to refuse to

provide treatment to individuals with HIV infection" and "send a

clear message to medical and dental providers that refusals to treat

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are illegitimate and illegal." Mary Crossley, Becoming Visible: The

ADA's Impact on Health Care for Persons with Disabilities, 52 Ala. L.

Rev. 51, 59 (2000). There may or may not be a similar need for a

limit on the ability of health care providers to refer disabled

patients elsewhere because of an unreasonable medical judgment about

the medical effects of the disability, irrespective of pretext.1

This is not the case to decide that issue.

1 Studies show that patients with HIV sometimes do not get the
care they need because doctors are reluctant to treat them for a
variety of reasons. See Crossley, supra, at 59 n.40 (citing studies).

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