Department of Justice FOR IMMEDIATE RELEASE CR MONDAY, OCTOBER 4, 1993 (202) 616-2765 TDD (202) 514-1888 JUSTICE DEPARTMENT SUES TWO DENTAL OFFICES FOR FAILURE TO TREAT PATIENTS WITH HIV AND AIDS WASHINGTON, D.C. -- In its first lawsuits to stop discrimination against people infected with the AIDS virus, the Justice Department today sued dental offices in Houston and New Orleans. The suits were brought under Title III of the Americans with Disabilities Act which prohibits discrimination on the basis of disability in places that do business with the public. "These lawsuits demonstrate that discrimination against people with HIV and AIDS will not be tolerated," said Attorney General Janet Reno. "Such discrimination is based on unfounded fear and factual misunderstandings. There is no medical or legal justification for discrimination against HIV-positive individuals, especially in health care." Today's actions were filed against Castle Dental Center, a chain of dental and orthodontic facilities in Houston, Texas, and Dr. Drew B. Morvant, a dentist who practices in New Orleans, Louisiana. (MORE) 01-07353 - 2 - The complaint against Castle Dental Center, filed in Federal District Court in Houston, asserted that in 1992 it refused to continue treating a patient once it became aware that he was HIV- positive. The patient, who had received orthodontic treatment for eight months, received a letter which read: "Due to the recent discovery of your health problems, Castle Dental Center has decided to cease providing you with orthodontic treatment." In the other case, filed in Federal District Court in New Orleans, the Justice Department alleged that a dentist denied dental services to two men, both of whom were informed that the office does not treat HIV-positive patients. One of the men recently died of AIDS. The American Dental Association has indicated that there is no medical or scientific justification for excluding persons with HIV or AIDS from dental treatment, solely on the basis of their HIV-positive status. The federal government's Centers for Disease Control and Prevention (CDC) has consistently stated that HIV infected patients must not be denied medical care. Both the CDC and the American Dental Association recommend the use of infection control procedures known as "Universal Precautions" to prevent the transmission of bloodborne diseases, including HIV, in the health care setting. The Occupational Health and Safety Administration requires that Universal Precautions be used in all dental facilities. According to the American Dental Association, the use of the Universal Precautions (MORE) 01-07354 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ) THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Case No.: H-93-3140 ) JURY ) JACK H. CASTLE, D.D.S., INC. ) d/b/a CASTLE DENTAL CENTER, and ) ) FAMILY DENTAL SERVICES OF ) TEXAS, INC., ) ) Defendants. ) ) ) FIRST AMENDED COMPLAINT The United States of America alleges: JURISDICTION AND VENUE 1. This action is brought by the United States pursuant to title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. S 12188(b)(1)(B), against Jack H. Castle, D.D.S., Inc. d/b/a Castle Dental Center ("Castle Dental Center" or "Castle") and Family Dental Services of Texas, Inc. ("Family Dental Services") (collectively, the "Defendants"). 2. This Court has jurisdiction over this action under 42 U.S.C. SS 12188(b)(1)(B) and (b)(2) and 28 U.S.C. SS 1331 and 1345. 3. Venue is proper in this judicial district. Castle Dental Center's places of business are located in this judicial district. The acts of discrimination alleged herein occurred in 1 01-07355 this judicial district, at the Castle Dental Center facilities located at 6500 North Freeway and 5356 Westheimer, Houston, Texas. THE PARTIES 4. Defendant Castle Dental Center is a Texas professional corporation, doing business under the name Castle Dental Center. Castle Dental Center owns a chain of several facilities that offer dental and orthodontic services to the general public. Castle Dental Center subleases space at 6500 North Freeway and 5356 Westheimer, Houston, Texas, from defendant Family Dental Services. Castle Dental Center is wholly owned by Jack H. Castle, Sr., D.D.S., a dentist who is licensed to practice in the State of Texas, and who is the Chairman of Castle Dental Center's Board of Directors. 5. Defendant Family Dental Services is a Texas corporation owned by defendant Dr. Castle and his wife. Family Dental Services functions as a management company for Castle Dental Center. Family Dental Services owns or leases property located at 6500 North Freeway and 5356 Westheimer, Houston, Texas, and subleases those premises to Castle Dental Center. 6. The main offices of Castle Dental Center and Family Dental Services are located at 6500 North Freeway, Houston, Texas. 7. Castle Dental Center and Family Dental Services have more than 25 employees and gross annual receipts of more than $1,000,000. 2 01-07356 8. Defendants are private entities whose operations affect commerce. Defendants own, operate, or lease the professional office of a health care provider. Accordingly, Defendants are subject to title III of the ADA, 42 U.S.C. SS 12181(7)(F) and 12182, and its implementing regulation at 28 C.F.R. S 36.104. FACTS 9. Harrison Totten (Mr. Totten) is an individual who, at all times alleged herein, has been infected with the Human Immunodeficiency Virus (HIV), and thus is an individual with a disability within the meaning of the ADA, 42 U.S.C. S 12102(2); 28 C.F.R. SS 36.104 et seq. 10. In September of 1991 Mr. Totten sought orthodontic treatment at Castle's office located at 5356 Westheimer, Houston, Texas ("Castle's office"). Mr. Totten specifically sought to have braces to straighten his teeth. At this time, he was accepted for treatment at Castle. 11. Mr. Totten was treated at Castle's office by various dentists, orthodontists, and dental hygienists and technicians there on several occasions after his initial appointment and before May of 1992. 12. During the course of an appointment at Castle's office on or about May 13, 1992, Castle Dental Center personnel refused Mr. Totten further treatment, because they became aware of his HIV status. 3 01-07357 13. Thereafter, Castle Dental Center personnel again refused to provide Mr. Totten any further treatment because of his HIV infection. 14. Castle Dental Center, through its employees' refusals or failures to treat Mr. Totten, denied him the benefit of its orthodontic services based on his HIV infection. 15. Castle Dental Center's actions caused Mr. Totten to suffer extreme humiliation, emotional distress, frustration, and anxiety. 16. As a result of his being denied further orthodontic treatment by Castle Dental Center, Mr. Totten was required to pay additional sums to another orthodontist to finish the treatment. 17. By denying Mr. Totten orthodontic treatment based solely on his HIV infection, and by adopting and implementing a policy of refusal of treatment to persons who have tested positive for HIV, the Defendants have unlawfully discriminated against Mr. Totten and other persons with HIV and thereby have violated title III of the ADA in the following ways: A. the Defendants have denied Mr. Totten and other individuals who have tested positive for HIV the opportunity to benefit from the services of a place of public accommodation, in violation of 42 U.S.C. S 12182(b)(1)(A)(i) and 28 C.F.R. S 36.202(a); B. the Defendants failed to provide to Mr. Totten and other individuals who have tested positive for HIV a benefit, privilege, or opportunity that is equal to that 4 01-07358 provided to individuals without HIV, in violation of 42 U.S.C. S 12182(b)(1)(A)(ii) and 28 C.F.R. S 36.202(b); C. the Defendants imposed eligibility criteria (i.e., that patients must be free of HIV), for the privilege or advantage of receiving dental services, that screen out the class of individuals who have tested positive for HIV, in violation of 42 U.S.C. S 12182(b)(2)(A)(i) and 28 C.F.R. S 36.301(a); D. the Defendants failed to make reasonable modification in their policies, practices, or procedures in order to afford equal advantages or privileges to the class of persons who have tested positive for HIV, in violation of 42 U.S.C. S 12182(b)(2)(A)(ii) and 28 C.F.R. S 36.302(a); and E. the Defendants have utilized standards, or criteria or methods of administration that have the effect of discriminating against Mr. Totten and other individuals who have tested positive for HIV on the basis of their disability, or that perpetuate the discrimination of others who are subject to the Defendants' administrative control, in violation of 42 U.S.C. S 12182(b)(1)(D) and 28 C.F.R. S 36.204. 18. The Defendants' policies and practices as described herein constitute (a) a pattern or practice of discrimination within the meaning of 42 U.S.C. S 12188(b)(1)(B)(i) and 28 C.F.R. 5 01-07359 36.503(a); and (b) discrimination against Mr. Totten and other persons who have tested positive for HIV that raises an issue of general public importance within the meaning of 42 U.S.C. S 12188(b)(1)(B)(ii) and 28 C.F.R. S 36.503(b). PRAYER FOR RELIEF WHEREFORE, the United States prays that the Court: A. Declare that the practices of the Defendants, as set forth above, discriminate against persons who have tested positive for HIV in violation of title III of the Americans with Disabilities Act, 42 U.S.C. SS 12181-12189, and the implementing regulation at 28 C.F.R. part 36; B. Enjoin the Defendants, their officers, agents and employees, and all other persons in active concert or participation with any of them, from refusing to provide treatment to persons who have tested positive for HIV that is equal to treatment provided to other persons; C. Award monetary damages to Mr. Totten to compensate him for injuries resulting from such discrimination; D. Assess a civil penalty against each Defendant to vindicate the public interest; and 6 01-07360 E. Order such other appropriate relief as the interests of justice may require. JANET RENO Attorney General (Signature) JAMES P. TURNER Acting Assistant Attorney General Civil Rights Division (Signature) JOHN L. WODATCH, Chief L. IRENE BOWEN, Deputy Chief Public Access Section Civil Rights Division U.S. Department of Justice (Signature) BEBE NOVICH, Attorney in Charge Public Access Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 616-2313 Of Counsel: GAYNELLE GRIFFIN JONES United States Attorney Southern District of Texas MARIANNE TOMECEK Assistant United States Attorney Southern District of Texas Texas State Bar #20116300 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 238-9501 01-07361 To: DON KAROTKIN Texas State Bar #11101300 Funderburk & Funderburk, L.L.P. 1080 Riviana Building 2777 Allen Parkway Houston, Texas 77019 (713) 620-7215 Attorneys for Defendant Jack H. Castle, D.D.S, Inc. d/b/a Castle Dental Center WILLIAM ROHRBACH Texas State Bar #17207300 Sullins, Johnston, Rohrbach, Magers & Herbert 3701 Kirby Drive, Suite 1200 Houston, Texas 77098 (713) 521-0221 Attorneys for Defendant Family Dental Services of Texas, Inc. 8 01-07362