Judge rejects request to force Boston Medical Center to immediately provide anti-HIV drugs to man who won't wear a face mask; says he's had ten months to find a new source
A judge has ruled an HIV-positive man can continue his lawsuit against Boston Medical Center for not letting him in for semi-annual checkups because he won't put on a face mask, but that she's not going to immediately order the hospital to simply provide him the pills he needs in part because he's known for ten months now that he would have to find a different health-care provider in a city not lacking for them.
In her ruling, Suffolk Superior Court Judge Diane Freniere noted that the suit that "John Doe" brought last week, just three days before he said his supply of anti-HIV pills was going to run out, came some ten months after the hospital notified him he had to wear a mask on visits for his required semi-annual checkup and blood test, and that the suit was essentially identical to one he had filed in October, then voluntarily withdrew on Nov. 17.
Doe's request says masks make him anxious, cause a burning in his throat and give him a facial rash.
"Any emergency situation relating to the plaintiff's anti-retroviral therapy and other treatment needs is of his own creation," Freniere wrote, adding that Doe's lawyer failed to provide her the substantive proof she need that any lapse in his pills would put him at the sort of severe risk that would justify issuing a temporary restraining order that would make the hospital give him the pills right away - and possibly put other patients and workers in the hospital's infectious-disease clinic at risk, should Doe enter with an undiagnosed Covid-19 infection.
The plaintiff has not shown that the BMC Defendants are the only providers of the treatment he seeks or that he cannot obtain the treatment he seeks by wearing a mask or by properly showing a medical need to be exempted from the mask requirements (or have another accommodation). In short, Mr. Doe has other options he can pursue to obtain the medical treatment he desires. In addition, the plaintiff has made an insufficient showing that the failure to obtain the desired anti-retroviral medication for a defined period of time would cause him irreparable medical harm, something the court cannot determine without expert medical opinion.
She continued that making Boston Medical Center let him walk into his doctors' offices without a mask would put the hospital in violation of state public-health regulations - and its own policies - that require mask wearing inside medical facilities.
Doing so would place the BMC healthcare providers and other patients, particularly the immunocompromised patients seeking care in BMC's Center for Infectious Diseases, at an increased risk for infection. Balancing these harms against the harms supported by the plaintiff's presentation weighs strongly in favor of denying the requested relief.
She set a Jan. 5 hearing on Doe's request for a preliminary injunction to make the hospital resume giving him the pills while his case is pending. Unlike temporary restraining orders, preliminary injunctions let the other side in a lawsuit make their case. In a filing yesterday, the hospital said it is moving to dismiss Doe's case entirely. In an opposition filing against Doe's restraining-order request, its lawyers wrote:
If Plaintiff's demands were accepted by the court, any patient could force medical providers to provide care, against that provider's medical judgment and against their will, based on their own personal views and preferences. Such a result would be unprecedented and cannot stand.
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Tapping the signs again
Violating Hospital public health regs
Will make finding a new doc in Mass challenging, for this immune compromised patient.
Can they hand him the pills outdoors?
When I had Covid in August, a nurse practitioner from my doctor's office walked over to CVS, filled my prescription for Paxlovid, and handed the CVS bag over to me outside the office, so I didn't have to walk inside either the CVS or the office. (I did wear a mask, since it was my first day testing positive.)
It sounds like part of the
It sounds like part of the issue is he needs regular bloodwork and a physical exam, which they can't really do outdoors.
Ongoing HIV anti-retroviral treatment requires routine blood work to check blood chemistry prior to renewal of prescriptions. The goal of the medication is to keep the virus in check, but if the patient is non-compliant with taking their medication and viral loads are elevated, then the dosages may need to be adjusted if virus is no longer undetectable.
Still no way to accommodate though?
I know of intellectually disabled folks who just pull masks right off because they don’t understand what they’re for, and their providers have agreed to wear face shields and goggles and such to have them come in for office visits.
Most inpatient floors have not been requiring masks while inside the room for patients or their caregivers. I don’t agree with this, but it suggests to me that masked providers seeing some unmasked patients is a risk facilities are willing to take. Could he not come to an inpatient floor and have a blood draw there?
The “go find another provider” falls flat imo when it’s a standard mandate for which he’s requesting accommodations. That approach seems appropriate when there is a philosophical difference with a particular facility regarding something in which they all do things differently, but it doesn’t make sense that they can send him away for requesting an accommodation. But as usual, disability rights are incredibly hard to enforce and the burden of proof is that the disabled person did everything perfectly.
Also, most of the local facilities are having their providers and patients wear floppy poorly fitting surgical masks rather than more effective masks. Some of them are even asking patients to remove respirators and replace them with surgical masks despite the CDC recommendation that this should not be done. Couldn’t the provider just wear a proper mask and then have just about the same protection as provider and patient both in floppy surgical masks?
It really can vary
But I think my point is..this mandate can vary from place to place. Even with the same network of medical facilities (i've experienced this myself)
And as far as "could they have accomodated him". Probably. But remember that its also about precidence, you allow one, you gotta allow others too.
The other thing to remember about "reasonable accomodation" is very.. open ended, and the keyword there is reasonable. I'd like to think that allowing someone to come in, mask free, who may have covid (or not), isn't exactly reasonable. And certianly not reasonable to any other paitent in an ID dept.
Sure they could have done a lot of things, but see point #2 .. you do this for him, you gotta be willing to do it for others.
And hypothetically speaking, let's say they did, and allow him to come in unmasked. Lets also say he had covid unknownngly, and he passed it onto someone in the lab who had a very weakened immune system. We all know masks aren't 100%, thats why BOTH parties need to wear them.
So let's say that weakened immune system person got COVID, was hopsitalized, and eventually died. THAT PERSON DID NOT NEED TO DIE BECAUSE OF SOMEONE ELSE'S FOOLISHNESS OR STUBBORNESS.
So now let's say instead of us talking about this person who was denied access because he didn't wear a mask, we're now talking about a lawsuit from the family to BMC for failing to protect that paitient AND 'accomodating' someone else because of their own ignorance.
I think the outcome of that case would be in the favor of the weakened immune system paitent. And BMC would come out look like a bad guy. And probably would be paying alot more in legal fees and judgements than what they are doing now.
Point: BMC had to do what is right for ALL PAITENTS, not just one. Reasonable accomodation would not apply here as the accomodation could directly harm other paitents.
But nevermind me, I'm just an arm chair hiv+ guy who's had to fight alot of this in his career, so I don't know.
But the one thing I do know, its people like this guy who erode what these laws are really for and really are about, protecting people who truly have been descriminated. Verses people who just want a payday because they didn't get their way and have no legal basis for even trying to prove otherwise.
I'll stop commenting under these articles now. I just get angry.. 22 years of being very angry at the system and how it works, and how people abuse it for their own liking. So tired of this.. so tired of it.
Mass. Eye and Ear is one of those
I walk in wearing a KN95, but I have to take it off in the lobby and put on a blue surgical mask instead.
Good to know
I'll avoid them if I possibly can.
Recent resurgence in respiratory viruses
I've spent way too much time wandering hospitals in the past couple of weeks,, Health facilities are really going hard on the masks because of the triple blast of RSV, COVID, and Flu crowding their facilities.
Thank you Judge
Thank you for having some common sense, Judge Freniere.
He should have.. just gone elsewhere.
And if he remotely cared about his treatment, he should already been treated elsewhere at this point.
I hope BMC wins their case for dismissal. This is just silly stupid.
What medical providers aren’t requiring masks?
it can vary
It can vary.
"Requiring" and enforcement are two very different things.
Its the enforcement that can very from place to place.
I'm just very confused as to
I'm just very confused as to why other options have not been exercised.
The equipment for blood work is quite minimal. In fact at Beth Israel in Boston the blood work area is in the main lobby about ten feet from where they start to require masks in the portion I visit (they have a mask station with a person greeting people.) In that scenario I could see him making an appointment, going to the lobby and putting a cloth mask on , walking the ten feet (or wheeled) , get the blood drawn and then popped right back out. They roll blood taking carts into hospital rooms all the time, aren't they able to take blood at a patients home with a traveling nurse?
At the height of Covid there were outdoor tents and testing in frigid conditions. Heck MGH has a vaccine van perfectly capable of drawing blood they roll right up to the curb! I realize many options cost more money but it must be less than all these lawyers?
I'm a very strong mask proponent and don't believe the answer is to let them just run around without a mask but those who say it doesn't make a difference clearly aren't bothered by the masks but aren't being fully fair either. I'll wear masks anywhere it makes sense but my blood pressure and anxiety go up considerably when wearing one, my face gets very hot , it's an absolute miserable thing for me... But I do it when needed and did it longer than most but I also avoided situations I knew it would be needed. I can believe that someone could have a reaction that's severe if they already have extreme anxiety or other issues. I had an appointment where to they were taking my vitals and I told her my rate might be a little high because of the particular mask they forced on us coming in and without hesitation she said I could go without it in the exam room... I opted to leave it on , I just wanted it to be noted in case things were elevated slightly, but she didn't miss a beat when suggesting it could be removed. At the Starbucks that's literally attached to the center there's a tiny cramped lobby of people , mostly without masks, waiting for their coffee with many clearly bring medical staff. That's why this case boggles my mind, I don't see how it's impossible to make this work.
If I were a judge those are the questions I would ask when it comes to accommodations. What attempts were made by both parties to find a solution? It sounds like the patient might be trying to purposefully be difficult but we have all dealt with the medical field and I totally could see medical administrators just being completely flippant about the concerns of a patient in this situation. Unless they need major medical equipment I can't imagine why this whole thing couldn't be handled the same way they would handle someone else who completely couldn't wear a mask by doing things at home or in different parts of the hospital.