Maureen K. v. Tuschka (Appeal), 155 Cal. Rptr. 3d 620 (Cal. Ct. App. 2013)

In this appellate decision, the Court of Appeal of the State of California Second Appellate District found that the respondent’s refusal to provide medical treatment to the appellant due to the appellant’s HIV status was a violation of the Unruh Civil Rights Act (Unruh Act), California legislation that prohibits discrimination based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. It found that due to the nature of HIV disease, the respondent was a disabled person within the meaning of the Unruh Act, and the trial court erred in submitting to the jury the question of whether the appellant had a disability.

Maureen K., the appellant, was diagnosed with HIV in 2006, after which she received regular care from a primary care physician and immunologist specializing in the treatment of infectious diseases. With her immunologist’s consent, Ms. K. stopped taking her antiretroviral (ARV) medications in October 2008 due to negative side effects. In February 2009, Ms. K. went in to have hernia surgery with Dr. Theodore Tuschka, the respondent, scheduled as her anesthesiologist. When Dr. Tuschka learned that Ms. K. had HIV and was not taking ARV medications, he told her that he could not perform the surgery for his own safety and for the safety of the operating room staff. Ms. K. brought suit against Dr. Tuschka, alleging disability discrimination in violation of the Unruh Act and violation of the Confidentiality of Medical Information Act (CMIA).

At the conclusion of the trial, and over the objection of Ms. K., the jury was asked to determine whether Ms. K. had a physical disability due to her HIV status. The jury responded in the negative. The court of appeal disagreed, noting that “[t]he protection of the Unruh Civil Rights Act extends both to people who are currently living with a physical disability that limits a life activity and to those who are regarded by others as living with such a disability.” Due to the nature of HIV and in light of the treatment Ms. K. received after Dr. Tuschka discovered she had HIV, the court of appeal found that as a matter of law, Ms. K. qualified as a disabled person within the meaning of the Unruh Act. Therefore, there was no factual question concerning her disabled status for the jury to decide, and the trial court’s submission of the issue to the jury was a prejudicial error. The court of appeal reversed the trial court’s finding as to the violation of the Unruh Act, but affirmed the trial court’s judgment in favor of Dr. Tuschka as to the CMIA claim because Dr. Tuschka did not disclose any individually identifying medical information.