Petition for Review from the Final Decision and Order of the District of Columbia Commission on Human Rights
Before Ferren, Schwelb, and King, Associate Judges. Opinion for the court by Associate Judge King. Concurring opinion by Associate Judge Ferren.
The opinion of the court was delivered by: King
KING, Associate Judge : Petitioner seeks reversal of an order of the District of Columbia Commission on Human Rights ("the commission") denying him damages on his claim that he was subject to various acts of discrimination, because of his sexual orientation, while he was patient at Howard University Hospital ("the Hospital"). He contends the commission erred when it concluded that one of his claims was barred by the statute of limitations; concluded that the Hospital did not discriminate on the basis of his sexual orientation; and denied him damages for acts of discrimination which the Commission found had been committed. We reverse the Commission's ruling with respect to the statute of limitations and remand for consideration of damages on the affected claim. We also remand for a reconsideration of the denial of damages for acts of discrimination the Commission did find. In all other respects we affirm.
On November 14, 1987, following an argument with his boyfriend, petitioner ingested approximately 200 aspirin tablets, intending to commit suicide. Later that evening, when he was discovered semi-conscious on the floor by some of his friends, petitioner was transported by ambulance to the Hospital.
Upon admission to the Hospital, petitioner was treated in the emergency room. After receiving emergency care, he was transferred to the medical intensive care unit where he was treated by Dr. Randall and Dr. Thompson. His transfer occurred on November 14, the day of his suicide attempt. Noted in appellant's medical history, inter alia, and relevant to this appeal, were the following: hepatitis, gonorrhea and syphilis, homosexual history, depression, "guaiac" positive stools, previous suicidal gestures, history of psychological counseling since childhood, and a negative HIV antibody test result two years prior to his hospital admission. Dr. Randall ordered that appellant be placed on blood and body fluid precautions, which required that attending care-givers be gowned, gloved, and masked, and that petitioner's blood and body fluids be sequestered in some fashion. On November 15, 1987, Dr. Randall ordered an HIV test for petitioner. *fn1 The Commission found that the analysis of petitioner's blood occurred some time after November 21, 1987.
At the time of petitioner's hospital stay, Hospital policy directed that all patients diagnosed as potentially suicidal be transferred to the closed psychiatric unit, unless contraindicated due to the patient's medical condition. Another Hospital policy, however, called for the exclusion of patients with infectious diseases from the unit. Because of that policy, the Hospital would not permit petitioner's transfer to that psychiatric unit unless, and until, his HIV test results came back negative.
On November 16, petitioner was transferred to a private room in the medical ward of the Hospital. While there, he remained on blood and body fluid precautions, and received treatment for the physical symptoms resulting from his salicylate poisoning. Petitioner was never transferred to the psychiatric unit because the results of his HIV test were not available before he was discharged. According to the Commission's findings, petitioner's psychiatric care consisted mainly of interaction with "psych techs," hospital workers who were required to have high school diplomas, but were not required to have any training in psychotherapy or psychology.
On November 20, petitioner's medical notes revealed that petitioner was "strongly preoccupied with his discharge," and that he wanted to return to work on the following Monday. The notes also recorded that petitioner felt that he had "been manipulated and lied ." On November 21, petitioner was discharged against the advice of his doctors, and an entry in the medical notes stated: "the pt is anxiously awaiting discharge -- states he wants to get back to his job." At the time of his discharge, petitioner had not received any information on the results of his HIV antibody test. *fn2
Petitioner filed a complaint with the Office of Human Rights ("OHR") on November 21, 1988 -- one year, to the day, after his discharge. On April 17, 1990, after an investigation, OHR determined that there was probable cause to believe the Hospital discriminated against appellant on the basis of his sexual orientation and his perceived handicap, i.e., that he was an HIV carrier.
The parties presented their cases in a five-day evidentiary hearing, held before a hearing examiner, from February 25, 1991 through March 1, 1991. On June 14, 1991, the hearing examiner filed a Notice of Proposed Decision and Order, which set forth the following findings and Conclusions: 1) petitioner's claim that the Hospital subjected him to an HIV test against his will was meritorious, but was time-barred; 2) the causes of action based on the implementation of blood and body fluid precautions and the denial of psychiatric services were not time-barred; 3) the Hospital, acting through its care providers, perceived petitioner to be HIV-infected; 4) perception as HIV-infected or HIV sero positive is a perceived physical handicap for purposes of the Human Rights Act ("HRA"); 5) the Hospital subjected petitioner to an HIV test, without his consent, because of his homosexuality; 6) the decision to place petitioner on blood and body fluid precautions was medically warranted and not in violation of the HRA; 7) the Hospital, a place of public accommodation under the HRA, directly and indirectly denied petitioner its advantages and accommodations as they pertained to post-suicide patients in need of psychiatric-related care; 8) the denial of such advantages and accommodations was for a discriminatory reason, namely, because of petitioner's perceived physical handicap; 9) petitioner failed to introduce competent medical evidence to demonstrate that he incurred expenses or suffered compensable damages as a result of the Hospital's violation of the HRA; and 10) the evidence did not warrant an award of punitive damages.
After the parties had filed exceptions to the proposed decision, on August 12, 1991, the Commission filed its Notice of Final Decision and Order, which incorporated all of the findings and Conclusions set out in the proposed order as noted above. The Commission also concluded that blood and body fluid precautions were not ordered, and services and facilities were not denied to petitioner, because of his sexual orientation.
On appeal, petitioner challenges the Commission's rulings that: 1) his claim for discriminatory HIV testing was time-barred; 2) the implementation of blood and body fluid precautions was not discrimination based on his sexual orientation; 3) the denial of psychiatric services was not discrimination based on his sexual orientation; and 4) compensatory damages were not warranted. The Hospital does not challenge ...