The opinion of the court was delivered by: GREEN
Myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness.
School Bd. of Nassau County v. Arline, 480 U.S. 273, 284, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987) (footnotes omitted). These sentiments recognized by Congress when drafting the Rehabilitation Act of 1973 and echoed more than a decade after passage of that Act by the United States Supreme Court still resonate today despite the strides taken by this country to eliminate the detrimental effects of unfounded discrimination.
In the instant case, plaintiff Richard Roe ("Roe"), a District of Columbia ("defendant" or "the District") firefighter infected with HBV, alleges that the defendant's refusal to permit him to work from January 6, 1991 to October 14, 1992 violated both the Rehabilitation Act of 1973, codified at 29 U.S.C. §§ 701 et seq. and 42 U.S.C. § 1983.
Because the parties entered a partial settlement, including, inter alia, a payment to Roe for settlement of all of his claims but one, the only issue that remained to be resolved at trial was
whether defendant may restrict plaintiff's performance of his duties because of plaintiff's Hepatitis B status. Specifically, defendant currently restricts plaintiff from performing mouth-to-mouth resuscitation, i.e., without the use of mechanical equipment, because of his Hepatitis B status unless no one else is available to perform the resuscitation.
Stipulation of Partial Settlement, December 3, 1993.
A. The Hepatitis B Virus.
The Hepatitis B Virus ("HBV") is a highly contagious infection that affects the liver.
Its presence can be detected through blood tests that measure antigens and antibodies.
In the general population, approximately 20 out of 100,000 persons are infected with HBV, however, in subpopulations such as health care workers, intravenous drug users, and homosexual men, that rate is higher. The mortality rate for HBV is one-tenth of one percent.
Also, liver inflammation and liver cancer can be caused by HBV.
A person in the early stages of HBV may suffer fever, muscle aches and joint pains -- symptoms akin to the flu. Later, jaundice may occur. Individuals with these symptoms are considered infected with "acute" hepatitis. However, due to the similarity of HBV symptoms with other more common and less serious illnesses, individuals infected with acute HBV often do not realize they have contacted HBV. It is estimated that two-thirds of those who develop HBV do not have any symptoms or have symptoms which go unnoticed.
Later, as the illness progresses and the liver heals, any symptoms associated with the acute stage of HBV disappear. At this stage, a minority of those infected become chronic carriers of the virus. Chronic carriers display no symptoms and are often unaware that they are carriers. Their status can be determined by finding present in their blood, the "E antigen" or the "surface antigen," antigens found during the early stages of HBV. If an individual carries these antigens for more than six months, that person is deemed a chronic carrier of HBV and can transmit the virus. Only five percent of those infected with HBV become chronic carriers.
B. Transmission of the Hepatitis B Virus.
1. HBV Transmission Studies.
All three agree that HBV is principally transmitted through the exchange of bodily fluids, from mother to child, and through sexual conduct. The two most prevalent types of transmission are through blood and through sexual activity, specifically, semen/vaginal transmissions. Other bodily fluids such as tears and saliva also contain HBV.
Nonetheless, there have no reported cases of transmission of HBV by saliva.
Because it is only possible to study human transmission of HBV through "look back" studies, studies compiled after it is known that an individual was infected with HBV and was in an environment where that individual might have transmitted the infection to others, the only non-"look back" studies have involved gibbons, not humans. In one particular study, published in 1980, saliva containing HBV was orally administered to gibbons. The saliva was administered utilizing two methods: in the first, the HBV-infected saliva was administered without trauma causing bleeding; in the second, HBV-infected saliva was administered with a toothbrush to induce some bleeding. Regardless of whether bleeding was induced or not, none of the gibbons developed HBV from oral salivary transmission. See Plaintiff's Exhibit 3 ("Experimental Transmission of Hepatitis B Virus by Semen and Saliva").
The only other studies of salivary transmission of HBV have been "look back" studies. Several studies have been conducted of individuals who have used CPR training manikins contaminated by saliva from a fellow participant later learned to be infected with HBV. In a 1985 study, although one of the CPR training participants was infected with HBV, none of the other participants became infected with HBV as a result of using the same manikins. See Plaintiff's Exhibit 4 ("Hepatitis B Virus in a Cardiopulmonary Resuscitation Training Course"). Another "look back" study examined a music teacher infected by HBV who had shared instruments, including reed instruments, with his junior high school students. After follow-up testing, it was determined that no transmission resulted from sharing instruments with the HBV-infected teacher.
Although no study has documented salivary transmission of HBV, there have been unexplained transmissions of HBV. For example, in 1989, an article was published that examined the transmission of HBV that occurred in households containing a chronic carrier of HBV. That study was unable to explain why some transmissions occur in households and classrooms with young children. See Plaintiff's Exhibit 6 ("Horizontal Transmission of Hepatitis B Virus"). Another article studied an extended family living in Alabama, multiple members of which had contacted the infection from a family member. See Plaintiff's Exhibit 7 ("Hepatitis B in an Extended Family -- Alabama").
Neither study could establish that saliva caused transmission of the infection. In the studies, salivary transmission was merely a theory advanced to explain what was, and still is, inexplicable.
Despite the fact that all of the experts agree that there has yet to be a documented case of salivary transmission, Dr. Parenti and Dr. Pierce draw different conclusions from the horizontal transmission studies. According to Dr. Parenti, because saliva cannot definitely be implicated in these unexplained transmissions, the risk of salivary transmissions is nothing more than theoretical. Neither he nor Ms. West recommends that individuals be concerned with possible salivary transmissions, such as those through "deep" kissing. In contrast, relying on the articles regarding horizontal transmission of HBV and the undisputed presence of HBV in saliva, Dr. Pierce believes that there is a risk of transmission of HBV by mouth-to-mouth resuscitation. As a result of this belief, he does counsel his patients against saliva exchanges such as "deep" kisses.
2. The Centers for Disease Control Guidelines.
The Centers for Disease Control ("CDC") have been studying transmission of HBV since the 1950's. In a 1988 update to guidelines published by the CDC, captioned "Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus, and Other Bloodborne Pathogens in Health-Care Settings," the CDC discusses "universal precautions" -- those precautions intended to prevent parenteral, mucous membrane, and noninteract skin exposure of health-care workers to bloodborne pathogens. In discussing the body fluids to which universal precautions apply and do not apply, the CDC expressly exempts saliva (except in dentistry) from the list of fluids to which the precautions apply. The CDC states that general infection control practices already in existence minimalize the minute risk, if any, for salivary transmission of . . . HBV." Plaintiff's Exhibit 10, at 379 (emphasis added).
In February 1989, the CDC published its "Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public-Safety Workers." See ...