UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

AMENDED COMPLAINT

1. The United States of America (the “United States” or the “Government”), by its attorney, Preet Bharara, the United States Attorney for the Southern District of New York, brings this suit to remedy and prevent violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and its implementing regulations (the “ADA”) by Defendants Emmanuel O. Asare, M.D., and Springfield Medical Aesthetic P.C. d/b/a Advanced Cosmetic Surgery of New York (collectively, “Defendants”), who are providers of medical services, specifically plastic surgery.  Defendants willfully violated the ADA by instituting and applying a policy that denies service to any individual living with the Human Immunodeficiency Virus (“HIV”), diabetes, cancer, obesity, stroke, DVT, clotting disorders, Hepatitis B and C, chronic viral infections, and neurological conditions.  The United States seeks both injunctive and monetary relief to redress the Defendants’ illegal and discriminatory acts.
   

PLAINTIFF, DEFENDANTS, AND INTERESTED PARTIES

2. Plaintiff is the United States of America.
3. Defendant Emmanuel O. Asare, M.D. (“Dr. Asare”) is plastic surgeon affiliated with Defendant Springfield Medical Aesthetic P.C. d/b/a Advanced Cosmetic Surgery of New York, and, upon information and belief, Dr. Asare’s primary work address is 635 Madison Avenue, New York, New York.
4. Defendant Springfield Medical Aesthetic P.C. d/b/a Advanced Cosmetic Surgery of New York (“Advanced Cosmetic”) is, upon information and belief, a professional limited liability company, formed pursuant to the laws of the State of New York, and through which affiliated doctors provide medical services.  Advanced Cosmetic has offices located at 635 Madison Avenue, New York, New York, and 5036 Jericho Turnpike #205, Commack, New York.
5. Complainant is a 58 year old, HIV-positive male, who resides in the City of New York, Borough of Manhattan.  In order to manage his HIV, Complainant takes a selection of drugs.  Complainant also is currently in remission from cancer, for which he received chemotherapy in 2007.  In 2014, Complainant has gynecomastia, which is inflammation of the breast tissue, and may be related either to the cancer or HIV.

JURISDICTION AND VENUE

6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1346(a), and 1343(a)(4), and 42 U.S.C. § 12188.
7. The Department of Justice has authority to sue in this matter pursuant to 42 U.S.C. § 12188.
8. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391(b)(1)-(2).

LEGAL FRAMEWORK

9. The ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”  42 U.S.C. § 12182(a).
10. The ADA defines “public accommodation” as including the “professional office of a health care provider, hospital, or other service establishment.”  Id. § 12181(7)(F); 28 C.F.R. § 36.104.  
11. Being HIV-positive, even if asymptomatic, as well as living with cancer, diabetes, obesity, stroke, DVT, clotting disorders, Hepatitis B and C, chronic viral infections, and neurological conditions, are all disabilities for purposes of the ADA.  42 U.S.C. § 12102(2)(B);
    28 C.F.R. § 36.104The ADA specifies that

[i]t shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.

42 U.S.C.  § 12182(b)(1)(A)(i).

12. Discrimination under the ADA encompasses

the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.

Id. § 12182(b)(2)(A)(i).

13. The medical offices of Dr. Asare and Advanced Cosmetic are places of public accommodation under the ADA, and the services provided through those offices are subject to the ADA.  Dr. Asare and Advanced Cosmetic are thus, public accommodations, subject to the ADA. 
14. Individuals who are HIV positive or have diabetes or cancer are individuals with disabilities pursuant to the ADA.

FACTUAL ALLEGATIONS

15. Complainant conducted an internet search looking for a cosmetic surgeon who specialized in handling gynecomastia.  The top result from Complainant’s search was Advanced Cosmetic and Dr. Asare. 
16. Complainant called and scheduled an appointment at Advanced Cosmetic’s Madison Avenue offices for July 14, 2014.
17. On or about July 14, 2014, Complainant went to Advanced Cosmetic.  Complainant was given a form to fill out in advance of the visit.  He completed all relevant parts of the form, except for those related to his HIV status.
18. Employees of the practice then told Complainant that he would be seeing Dr. Asare.  Complainant was thereafter escorted by a female employee of Advanced Cosmetic into Dr. Asare’s office, and the employee remained in the room.
19. Dr. Asare asked Complainant the reason for Complainant’s visit.  Complainant explained that he had been suffering from gynecomastia, and that he wanted to find out if surgery was a feasible option to address the problem.
20. Dr. Asare then conducted an exam of Complainant’s chest.
21. After the exam, Complainant asked whether gynecomastia could be a result of rapid weight gain after completion of chemotherapy, or whether it could be related to certain medications Complainant was taking to manage his HIV.
22. Dr. Asare reviewed the intake form, and asked whether Complainant had listed his HIV status on that form.  Complainant answered that he had not because he felt more comfortable discussing his medical history orally.
23. Dr. Asare then told the female Advanced Cosmetic employee who had been in the room during the exam to leave.  Complainant stated that he had no issue with her remaining in the room.  Nevertheless, Dr. Asare insisted that she leave, and she did.
24. Dr. Asare then stated that it was the policy of Advanced Cosmetic not to treat those living with HIV.
25. When Complainant noted that such a refusal was illegal, Dr. Asare insisted that the policy of refusing service to those who are HIV-positive was not illegal, and that he had checked with an attorney before formulating the policy.
26. Complainant and Dr. Asare had an argument regarding the propriety of Advanced Cosmetic’s policy, after which Complainant left Advanced Cosmetic’s offices.
27. Complainant, as a result of the discrimination suffered at the hands of Dr. Asare and Advanced Cosmetics, has suffered serious emotional distress.
28. Upon information and belief, Complainant is not the first victim of Dr. Asare’s and Advanced Cosmetic’s illegal exclusionary policy.  At least two other individuals were told by Advanced Cosmetic that the office would not provide services to those with HIV.  Both individuals posted anonymous comments to the website www.ratemds.com. A copy of the posting is attached hereto as Exhibit A. 
29. On or about July 15, 2014, Complainant filed a complaint pursuant to the ADA  with the Department of Justice concerning Dr. Asare and Advanced Cosmetic. 
30. As a result of that complaint, the Government initiated an investigation into Dr. Asare and Advanced Cosmetic, and on or about September 19, 2014, the Government sent Defendants a letter requesting documents and information regarding their policy with respect to providing medical services to HIV-positive individuals. 
31. In a letter dated December 10, 2014, Defendants responded to the Government’s request for information by stating that Dr. Asare and Advanced Cosmetic only perform plastic surgeries, which are elective in nature, and Defendants “do not perform life-saving surgeries.  As a result, all our patients should be in healthy condition.  Any condition that a patient has that to the best of my knowledge will potentially have any negative effect on the outcome of the surgery will disqualify the patient.”  A copy of the December 10, 2014, letter is attached hereto as Exhibit B.
32. That letter went on to explain that Dr. Asare and Advanced Cosmetic would not and did not perform surgeries on anyone having “[m]edical conditions like obesity, uncontrolled diabetes, uncontrolled hypertension, recent stroke or heart attack, history of some types of cancer, history of DVT in the past, clotting disorders, history of active Hepatitis B and C as well as other chronic viral infections, history of HIV infection, some neurological conditions etc.” See Exh. B (hereinafter, taken together with the language quoted in Paragraph 33, “Defendants’ Policy”).
33. Upon information and belief, pursuant to the American Medical Association’s Code of Medical Ethics, “[a] physician may not ethically refuse to treat a patient whose condition is within the physician’s current realm of competence solely because the patient is seropositive for HIV.  Persons who are seropositive should not be subjected to discrimination based on fear or prejudice.”  Op. 9.131 – HIV Infected Patients and Physicians (found at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion9131.page as of 1/13/15).  A copy of Op. 9.131 is attached hereto as Exhibit C.

ENFORCEMENT BY THE ATTORNEY GENERAL

34. Given indications that Defendants have been denying medical services consistent with Defendants’ Policy since 2012, there is reasonable cause to believe that Defendants have engaged and continue to engage in a pattern or practice of discrimination under the ADA.  42 U.S.C. § 12188(b)(1)(B)(i).  There is also reasonable cause to believe that Defendants’ Policy raises an issue of general public importance.  42 U.S.C. § 12188(b)(1)(B)(ii).

FIRST CAUSE OF ACTION
POLICY DISCRIMINATION ON THE BASIS OF DISABILITY

35. The Government incorporates by reference paragraphs 1 through 34 as if they were repeated in full herein.
36. Defendants’ Policy categorically excludes disabled individuals living with HIV, diabetes, or cancer from the services provided by Defendants, namely plastic surgery.
37. Defendants’ Policy violates the ADA.  42 U.S.C. §§ 12182(a), (b)(2)(A)(i).
38. Defendants’ Policy is not necessary to effectuate the plastic surgery services that Dr. Asare and Advanced Cosmetic offer.
39. Defendants’ policy of denying services to any individual living with HIV, diabetes, cancer, obesity, stroke, DVT, clotting disorders, Hepatitis B and C, chronic viral infections, and neurological conditions constitutes a pattern or practice of discrimination under the ADA.  Id. § 12188(1)(B)(i).

SECOND CAUSE OF ACTION
DISCRIMINATION ON THE BASIS OF DISABILITY

40. The Government incorporates by reference paragraphs 1 through 34 as if they were repeated in full herein.
41. On or about July 14, 2014, Defendants denied services, namely plastic surgery, to Complainant because he is living with HIV.
42. Defendants’ denial of services to Complainant on or about July 14, 2014 based on his HIV-positive status violates the ADA.  Id. § 12182(a), (b)(1)(a)(i).
43. Defendants’ denial of service to Complainant, and to any individual living with HIV, diabetes, cancer, obesity, stroke, DVT, clotting disorders, Hepatitis B and C, chronic viral infections, and neurological conditions violates the ADA and raises an issue of general public importance. Id. § 12188(1)(B)(ii).

PRAYER FOR RELIEF

WHEREFORE, the United States respectfully requests that this Court enter judgment that:

a. Declares that the discriminatory actions, practices, and policies of Defendants as set forth above violated Title III of the ADA, 42 U.S.C. §§ 12181-89, and its implementing regulation, 28 C.F.R. pt. 36;

b. Enjoins Defendants, their officers, agents, and employees, and all other persons acting in concert with Defendants, from discriminating on the basis of disability against Complainant, other individuals with disabilities, and individuals related to or associated with an individual with a disability in violation of Title III of the ADA, 42 U.S.C. §§ 12181-89, and its implementing regulation, 28 C.F.R. pt. 36;

c. Enjoins Defendants, their officers, agents, and employees, and all other persons acting in concert with Defendants, from failing or refusing to adopt and implement a policy of nondiscrimination against persons with disabilities, including persons living with HIV, diabetes, or cancer, and from failing or refusing to make reasonable modifications to policies, practices, and procedures to ensure that goods, services, facilities, privileges, advantages, and accommodations are afforded to individuals with disabilities, including those living with HIV, diabetes, or cancer;

d. Awards money damages to Complainant to compensate him for the discrimination he experienced;

e. Assesses a civil penalty against Defendants as authorized by 42 U.S.C. § 12188(b)(2) and 28 C.F.R. § 36.504(a)(3) in an amount sufficient to vindicate the public interest; and

f. Grants such other relief as the Court deems just and proper.