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July 9, 1996

DIONNE SUMES, Plaintiff,

HAROLD H. GREENE, United States District Judge.

The opinion of the court was delivered by: GREENE

This case came before the Court for a bench trial beginning on February 20, 1996 and concluding on February 21, 1996. With the benefit of the full record now before the Court, including Proposed Findings of Facts and Conclusions of Law filed by both plaintiff and defendant, this case is ripe for a decision on the merits.


 This case involves claims under the section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the D.C. Human Rights Act ("DCHRA"), D.C. Code § 1-2519. *fn1" Because the parties sharply contest the factual background of this case, the Court will briefly outline each side's version of the facts.

 According to defendant, his practice is limited to low risk patients. He will not treat individuals who have symptoms such as fever and nausea unless such an individual is a prior patient of his. Plaintiff was not a prior patient of his, and according to defendant, she had never previously seen a obstetrician or gynecologist. Defendant maintains that he referred plaintiff to a high risk center after plaintiff's mother had told him that plaintiff was not feeling well and had been feverish. He testified that he was also concerned that her deafness might be the result of some underlying congenital condition that he did not feel qualified to evaluate. He thus maintains that the reason he did not treat plaintiff is because she appeared to be suffering from a medical condition that was outside of the area of his specialty. He points to the fact that plaintiff was in fact suffering from another condition -- when she went to a hospital after defendant declined to treat her, she was diagnosed with a kidney infection. He also notes that her deafness is a result of a congenital condition, Waardenburg Syndrome. However, he concedes that he was not aware of the fact that plaintiff suffered from this condition until the present lawsuit was initiated.

 The parties have stipulated to the following facts: (1) that plaintiff is a "disabled person" as defined by the Rehabilitation Act and has a "disability" as defined by the D.C. Human Rights Act; (2) defendant receives "federal financial assistance" through the Medicaid program and thus is subject to the Rehabilitation Act; and (3) at the time of plaintiff's visit to defendant's office, she was one to two months pregnant.



 To prevail on the Rehabilitation Act claim, plaintiff must show: (a) she is a disabled person, (b) she was "otherwise qualified" to receive treatment from defendant, (c) defendant refused to treat her "solely by reason of" her disability, and (d) defendant receives federal financial assistance. Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir. 1992), cert. denied, 507 U.S. 910, 122 L. Ed. 2d 654, 113 S. Ct. 1255 (1993). In light of the parties' stipulations, the issues for the Court to resolve are whether plaintiff was "otherwise qualified" to receive treatment from defendant and whether defendant refused to treat plaintiff "solely by reason of" her disability.

 Under the Rehabilitation Act, an individual is "qualified" to receive services if she "meets the essential eligibility requirements for the receipt of such services." 45 C.F.R. § 84.3(k). In the provision of medical services, the issue becomes whether "there is no factor apart from the mere existence of disability that renders that participant unqualified for the [services]." Woolfolk v. Duncan, 872 F. Supp. 1381, 1389 (E.D. Pa. 1995) (footnote omitted).

 A health care provider may consider any genuine medical risks associated with plaintiff's disability, but he "must also consider whether it is possible to make reasonable accommodations to enable the patient to [be treated] despite those risks." Glanz v. Vernick, 756 F. Supp. 632, 638 (D. Mass. 1991). Accordingly, a provider "may not withhold medical benefits, without reasonable accommodation, solely based on a participant's disability, but may only act pursuant to a bona fide medical reason." Woolfolk, 872 F. Supp. at 1390.

 Plaintiff must first make a prima facie showing that she was otherwise qualified to be treated; the burden then shifts to defendant to show that plaintiff was not in fact qualified. Glanz, 756 F. Supp. at 638. Generally, when undertaking an "otherwise qualified" inquiry, "courts should normally defer to the reasonable medical judgments of public health officials." School Board v. Arline, 480 U.S. 273, 288, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987); see Glanz, 756 F. Supp. at 638. However, "[a] strict rule of deference would enable doctors to offer merely pretextual medical opinions to cover up discriminatory decisions." Glanz, 756 F. Supp. at 638. Thus, a plaintiff may prevail if she can show that the reason given by defendant is a pretext or that it "encompasses unjustified consideration of the handicap itself." Id. (internal citations omitted).

 The Court finds that plaintiff visited the office of defendant while she was pregnant, and thus was qualified to receive prenatal care. The Court finds nothing about her disability that would disqualify her from receiving such care from defendant. Nor was she suffering from any other condition that would preclude defendant from treating her. *fn2" ...

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