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By Renee Martin, J.D., R.N
The Americans with Disabilities Act (ADA) prohibits discrimination both in employment and in public accommodations. Until recently, it was unclear whether these ADA prohibitions were applicable to independent physicians in the non-employment context, i.e., with medical staff privileging. The 3rd U.S. Circuit Court of Appeals, in Menkowitz v. Pottstown Memorial Hospital, in case of first impression, has affirmatively decided that a disabled physician can sue a hospital that strips him of staff privileges under the public accommodation provision of Title III of the ADA.
To understand the nuances of Menkowitz, some general background discussion of the ADA is helpful. Title I of the ADA prohibits employee discrimination against any “qualified” individual because of a disability with regard to job application procedures, hiring, advancement, compensation and privileges of employment. Title III of the ADA prohibits discrimination against any individual based on disability in the full and equal enjoyment of the goods, facilities, privileges, advantages or accommodation of any place of public accommodation.
Under the ADA, a hospital is a “public accommodation.” Title III seeks also to eliminate barriers to access; these barriers include “eligibility criteria” that screen out an individual with a disability unless these criteria are shown to be necessary for the provision of the services, facilities, privileges and accommodations offered. Although the term “individual” is not defined in the ADA, courts have generally construed it to mean clients or customers of the public accommodation.
Prior to the Menkowitz decision, the 3rd Circuit had not determined the applicability of Title III to the granting or denial of staff privileges for independent contractor physicians. Other federal circuit decisions are divided. (Both Pennsylvania and New Jersey state courts apply their respective state non-discrimination laws equally to physician employees and non-employee independent contractors.) Menkowitz closed an apparent gap in the ADA and provided independent contractor physicians with protection under Title III.
The Menkowitz Decision
The alleged facts of Menkowitz are these. Elliot Menkowitz, was an independent contractor orthopod on Pottstown Memorial Medical Center’s medical staff since 1973. Menkowitz was diagnosed with Attention Deficit Disorder in July 1995. After that, he informed Pottstown of his disorder and gave the hospital a written report from his treating physician and psychiatrist that it would not affect his ability to treat patients or otherwise to function and appropriately interact with Pottstown’s staff.
Subsequently, the hospital accused him of various infractions of hospital policies—accusations that Menkowitz considered “a pattern of harassment and intimidation.” Later, the hospital summarily suspended Menkowitz’s medical staff privileges without notice or a hearing in alleged violation of the hospital’s own bylaws. The Medical Committee of the Board of Directors later heard testimony from various staff members, not including Menkowitz, and ultimately approved the decision to suspend staff privileges for six months.
As a result, Menkowitz began suit against Pottstown in the U.S. District Court for the Eastern District of Pennsylvania. Menkowitz alleged a violation of Title III of the ADA, claiming that Pottstown discriminated against him based on his disability by denying him medical staff privileges at the hospital. Pottstown moved to dismiss Menkowitz’s suit for failure to a state claim upon which relief could be granted. The district court found for Pottstown and dismissed Menkowitz’s suit finding that Title III of the ADA did not cover his claim.
The court’s reasoning was this: with hospitals, Title III protects those individuals seeking health care and accessing the health care facility from discrimination, not the individual employees and staff members providing the treatment. Therefore, the court concluded, Title III did not address Pottstown’s employment and medical staff decisions.
Further, the court found that Menkowitz’s dispute with Pottstown was similar to that found in an employment relationship and that as such it did not concern services that the hospital offered to the public. If Menkowitz had any claim under the ADA, the court stated, it would be under Title I. But, because Menkowitz was an independent contractor and not an employee of Pottstown, he was not entitled to relief under Title I either. Although the court recognized that its decision precluded Menkowitz from any relief under the ADA, it was not willing to broaden the protections of Title III to include his claim.
Menkowitz appealed the district court’s decision to the 3rd Circuit, which reversed. Reading Title III more broadly, the Court found that Menkowitz properly stated a cause of action as an “individual” discriminated against in the “full and equal enjoyment of the goods, services,…and privileges, advantages or accommodations of any place of public accommodation.”
Having found that Menkowitz was an individual protected by Title III, the Court then examined whether he was denied the “full enjoyment” of some “privilege” otherwise afforded by Pottstown. To so find, the court stated that it would have to identify some connection between the privileges denied and the hospital as a “physical place” of public accommodation. The court easily found that nexus. Because Pottstown denied Menkowitz staff privileges and suspended him from the active medical staff, he could no longer “enjoy the hospital’s physical facilities in providing the necessary medical and consulting services to his patients.”
The court stated, “[h]ere we cannot imagine a greater nexus between the privileges, advantages, or services denied and physical access to hospital facilities simply because of the nature of medical staff privileges—privileges that lie at the very core of a hospital’s facilities.” Notably, contrary to the district court, the Appellate Court was persuaded by the fact that Menkowitz would not have recourse under Title I because he was not a Pottstown employee. The Court did not believe that Congress intended for a non-employee, similarly situated like Menkowitz, to be without recourse under the ADA.
Implications of Menkowitz
Menkowitz is significant because it affords physicians who maintain hospital staff privileges with previously unavailable protection. Now an independent contractor physician or other non-employee health care professional with a disability who is denied hospital privileges through discriminatory practices has recourse under Title III.
It is unlikely that Menkowitz can be extended to instances of discrimination in other settings, such as HMO panels, unless the HMO also provides the physical facilities for rendering the medical services. Nevertheless, the Menkowitz decision has the potential of creating new found liability for hospitals to a host of claims by medical professionals who maintain privileges.
Renee Martin, J.D., R.N., is an associate with the health care law firm of Kalogredis, Tsoules and Sweeney, Ltd. in Wayne, Pennsylvania.
