When anesthesiologist Theodore Tuschka, MD, learned the patient he was about to wheel into the OR was HIV-positive, he canceled the case over concerns for his safety and the well-being of the operating room staff. A California judge has called his fears unreasonable and in violation of state law that protects all citizens from unlawful discrimination.

The patient (identified as Maureen K. in court documents) arrived at Community Memorial Hospital in Ventura for hernia repair surgery in February 2009, and was placed in a curtained pre-op bay. Court records show she gave a pre-op nurse a list of her medications, signed a hospital consent form and discreetly told the nurse that she was HIV-positive. The nurse, apparently unfazed, started the IV.

A few minutes later, Dr. Tuschka approached the bedside and reviewed the patient's chart. According to court records, he quickly and loudly announced that the patient was HIV-positive, commented that her chart contained no information on her viral load or T-cell count, and asked if she was on anti-retroviral (ARV) medications. The patient said she was not, having been instructed by her immunologist 2 months earlier to stop taking the medications after experiencing unwanted side-effects.

Dr. Tuschka left to call surgeon Constanze Rayhrer, MD, who was fully aware of her patient's condition. He testified that Dr. Rayhrer agreed with his assessment to cancel the case because the patient's viral load was unknown. According to the court records, Dr. Tuschka returned to the patient, telling her he wanted "to keep himself safe, and the people that he works with safe."

He wrote the following in the patient's chart: "Patient with HIV positive off medications two months. Suggest workup by treating physician documenting viral loads and infectious status. Hopefully patient will be on meds or have documented nonviremic state for the safety of the operating room personnel."

The notation turned out to be a smoking gun, according to court documents, which say it fully corroborates the patient's testimony that staff safety was Dr. Tuschka's sole reason for cancelling the case. In court, Dr. Tuschka claimed he canceled the case to protect the patient — experts testified the patient was at increased risk for infection because she had stopped taking her ARVs, and if the mesh the surgeon planned to use to repair the defect became infected, it would be harder to treat in an HIV-positive patient — but admitted his documentation did not reflect that concern.

Dr. Tuschka's canceling of the case and conduct toward the patient was insensitive and possibly unethical, note court documents, which cite the American Medical Association's code of ethics: "A physician may not ethically refuse to treat a patient whose condition is within the physician's current realm of competence solely because the patient is seropositive for HIV.

His actions also violated a California law that broadly prohibits discrimination based on, among many factors, disability and medical condition. The court ruled "a person with HIV is disabled as a matter of law" and, in this case, "an HIV-positive patient was denied medically necessary surgery because an anesthesiologist unreasonably feared for his own safety and that of the operating room staff."

"Dr. Tuschka did not discriminate on anyone because of his or her HIV status," says his personal attorney, John Hunter, who did not try the case. "Even [the patient's] infectious disease doctors testified that her health and safety were best served to postpone surgery until she was back on her regular medications."

Mr. Hunter says Dr. Tuschka's defense team will petition the Supreme Court of California to review the case.

"The appellate court took a hard look at the actions and basically jumped to the conclusion that [Dr. Tuschka] unlawfully discriminated against the patient based on her disability," says Stephanie Bowen of Hall, Hieatt & Connely.

The patient's attorney declined to remark on the court's ruling.

Daniel Cook