(SFE) HIV patient sues for refused surgery

San Francisco Examiner - Thursday, March 4, 1999

Elizabeth Fernandez of the Examiner Staff
Charges bias when doctor wouldn't replace ailing shoulder

The day Steve Iacovino sought the help of a UCSF surgeon, the pain in his shoulders was so unbearable
he couldn't dress, couldn't lift his cat, couldn't perform most routine functions.

That day, after the surgeon declined to operate, Iacovino says he was so devastated he wanted to throw
himself off the roof of the hospital parking garage.

Instead, he found another doctor and, a few months later, successfully underwent shoulder replacement
surgery.

Now, in a trial under way in the courtroom of San Francisco Superior Court Judge A. James Robertson II,
Iacovino is suing the orthopedic surgeon and UC, alleging he was discriminated against because he is
HIV positive.

"I begged him to do the surgery. . . . I saw no end to the pain," said Iacovino, 47, a former technician at
the San Francisco Fine Arts Museum. On disability, he now lives in Honolulu.

"I figured if UC wasn't going to operate on me, no one would because they were the leading AIDS
experts. I thought my life was being written off." San Francisco attorney Michael Lucey, representing the
now retired physician, Dr. Franklin Hoaglund, denies that the doctor discriminated against Iacovino when
he suggested a more conservative approach of physical therapy instead of surgery.

"Every doctor has to be free to make medical judgments and recommend treatment without fear of being
sued simply because another doctor disagrees with them," Lucey said.

"T-cells were too low'

In 1995, Iacovino was diagnosed with irreversible bone degeneration called avascular necrosis. Referred
by his primary physician to UCSF's orthopedics department, Iacovino was taking heavy doses of
morphine to combat the pain. He'd tried physical therapy, he said, but could not tolerate it.

In June 1997, he met with Hoaglund and again the following month.

"He said my T-cells were too low, he said I was inoperable," Iacovino said. "(But) I'd never had a major
opportunistic infection. . . . I told him I was willing to take any risk; I did not want to live my life on
morphine." According to court documents, the doctor replied " "Then let's hope for a cure.' "

To Iacovino's lawyer, Gary Cloutier, the case demonstrates a misuse of medical power.

"Steve felt he was going to the citadel for AIDS," Cloutier told the Superior Court jury. "This is about a
surgeon who didn't care."

In contrast, defense attorney Lucey told the jury that while Hoaglund has treated HIV-positive patients,
shoulder replacement surgery was rarely done because of the serious risk of infection.

Iacovino moreover had medical complications besides HIV and chronic shoulder pain - he had herpes,
cluster headaches and severe asthma.
"Dr. Hoaglund was sued for recommending a conservative course of treatment," Lucey said. "The
plaintiff wanted the surgery and he wanted it now . . . you do not dictate to the doctor what treatment
should be."

Hoaglund failed to consult an AIDS specialist, Cloutier said, before declining to operate on the basis that
Iacovino's T-cell count of 211 was too low - normal counts of the disease-fighting cells range from 500 to
1,000.

According to the lawsuit, Hoaglund said the cell count put Iacovino at severe risk of infection. But there
is no credible medical evidence showing that the risk is higher, the suit contends, maintaining that the
doctor discriminated by inappropriately viewing the underlying HIV condition as an "absolute barrier" to
surgery.

"The Americans with Disabilities Act says you can't set up absolute barriers," Cloutier said. "If you aren't
going to treat someone with HIV, you have to have a credible medical reason. People who have HIV are
at greater risk of opportunistic viral infections but not common bacterial infections, which is what we are
talking about after an operation."

What other experts say

Experts at the federal Centers for Disease Control and Prevention in Atlanta said there is little research
indicating greater post-operative risk. "I don't know of any evidence to suggest that a person with (HIV)
is at any greater operative risk," said Jonathan Kaplan, associate director for opportunistic infections in
the HIV / AIDS Prevention Division. "The benefits of an operation could possibly outweigh risks."

Testifying on Iacovino's behalf, Seattle orthopedic surgeon Dr. Robert McConnell said physical therapy
for a patient in such condition would have been akin to "beating a dead horse. It wouldn't help."

In an interview, McConnell said that Iacovino had been in such pain that the risk of surgery was worth
taking.

"Here you have a medical center world-renowned for caring for HIV patients," he said. "It was not the
right thing for a physician to do. . . . It didn't make sense to me."

Four months after Hoaglund declined to operate, Iacovino had the surgery performed in Honolulu on his
right shoulder, which had reached the "terminal" stage of degeneration. A second operation was later
performed on his left shoulder. Now Iacovino says he is nearly off morphine and once again able to play
the keyboard and do most of the activities he could not handle before surgery.

"I successfully underwent this procedure twice and had no post-op infections," he said. "I don't want this
to happen to anyone else."

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