Lasik surgeon refuses to operate on HIV-positive clients

Posted on 02 Oct 2006 at 7:30pm
By David Webb Staff Writer

Ly says Boothe apologized, offered discount after initially refusing to do procedure because Ly acknowledged once having sex with someone who was HIV-positive



Ethan Ly says that even though he once had sex with an HIV-positive person, he has been tested several times since for HIV and is HIV-negative.

A 29-year-old gay Dallas man says he received an apology and an offer of a discount from a lasik eye surgery doctor whose staff allegedly told him he wasn’t eligible for treatment because he acknowledged previous sexual activity with an HIV-positive partner.

Ethan Ly claimed a member of Dr. William Boothe’s staff rejected him for treatment on Oct. 24 because he had answered yes on a questionnaire that asked if he had ever had intimate contact with someone who had HIV. Ly said he could not recall the exact wording of the question, but he believes it asked if he ever had sexual contact.

“He told me that Dr. Boothe’s wife looked at the paperwork and because I answered yes to one of the questions, Dr. Boothe was not going to do the surgery,” said Ly, who noted he is HIV-negative.

Ly said he informed Boothe’s staff member that he was HIV-negative, and that the sexual activity had occurred at least seven years ago. He has tested negative several times after that encounter, he said.

The staff member said he would talk to Boothe, but he returned to say the decision was final, Ly said.

“He said that Dr. Boothe would not do it unless I had current documentation,” said Ly, who noted he had not been tested recently because he has not had sex with anyone for the past two years.

No one ever explained why being HIV-positive would prevent him from receiving lasik surgery, Ly said.

“It made me feel kind of awful,” Ly said. “I don’t know what it’s like to get news that you are positive, but when I sat in my car it felt like someone gave me really bad news when there is nothing wrong with me.”

Ly said he decided to go public with his complaint because he felt the treatment was unjust, and that it might have been driven by homophobia.

“I don’t think it is right, and it’s something people need to know about,” said Ly, who said he has made an appointment with another doctor to obtain the surgery.

Ly said the rejection from Boothe came after he had been at the doctor’s office for more than three hours, had paid a $150 consultation fee and been scheduled for pick-up on the day of the surgery. The consultation fee was refunded when he was rejected for treatment, he said.

Ly said the apology from Boothe came immediately after the Dallas Voice contacted the doctor’s office.

“He apologized profusely, and he blamed it on his staff,” Ly said. “Pretty much the call was him apologizing and him saying that he is not homophobic.”

Ly said Boothe offered to do the surgery at a discount after he learned that he was HIV-negative. Prior to that, Boothe was explaining that he could not do the surgery because of restrictions on lasik surgery for HIV patients, he said.

Ly said Boothe did not offer to do the surgery until after he learned about his HIV-negative status. The doctor had told him he could not treat people with HIV because of Food and Drug Administration guidelines, he said.

“He told me he couldn’t do the surgery for free, but he was willing to do a reduced rate of $2,500,” Ly said. “The original price was $3,290.”

Ly said he rejected the offer, but he agreed to Boothe’s suggestion that they meet the following day to discuss the situation.

Dr. Boothe did not return two messages left with a member of his staff, but his lawyer, Larry Carlson of the law firm of Baker Botts in Dallas called on his behalf. Carlson said he is an old friend of Boothe’s as well as his lawyer.

Carlson said Boothe refuses to perform lasik surgery on HIV-positive clients in accordance with Food and Drug Administration guidelines.

“The reason is not the safety of the doctor or the doctor’s staff it’s patient safety,” Carlson said. “People with immune deficiency don’t heal properly. Dr. Boothe follows FDA guidelines. For that reason he will not operate on people who are HIV-positive.”

The U.S. Food and Drug Administration’s Web site notes that lasik surgery (also known as refractive surgery) is probably not a good option for people who have a disease or are on medications that may affect wound healing. It states, “certain conditions, such as autoimmune diseases and immunodeficiency states and diabetes, and some medications may prevent proper healing after a refractive procedure.”

Carlson said Boothe is not homophobic, and his refusal to operate on HIV-positive people has nothing to do with their sexual orientation.

“He does not discriminate based on sexual orientation,” Carlson said. “His doors are open to anybody without regard to race or religion or gender or sexual orientation. He’s not prejudiced in that regard. In fact he has employed homosexuals in his office in the past and currently has a homosexual who works in his office. He wants this to be real clear this has nothing to do with sexual orientation. It’s just a patient safety issue.”

Carlson said he is unaware of exactly what the questionnaire about patient history Boothe requires patients to fill out says in regard to HIV status or contact with HIV-positive individuals.

“I don’t know the exact phrasing of the question, but the purpose of it is to find out if someone is or if there is a likelihood that they are HIV-positive,” Carlson said.

Carlson said if a patient was mistakenly identified as HIV-positive by Boothe’s staff it would be corrected and the patient would be eligible for the surgery.

“If a mistake happens and Bill [Boothe] learns about it then certainly he will do everything he can to correct and fix the situation quickly and correctly.

Conflicts between HIV-positive patients who want lasik surgery and the providers of the procedure have arisen before.

The Legal Center for People With Disabilities, a Colorado-based nonprofit group, filed a lawsuit in October 2003 alleging disability discrimination against an HIV patient by a laser surgery center that refused them treatment.

Eric Maxfield, the lawyer who filed the lawsuit, said the Colorado Civil Rights Division investigated the complaint and found that discrimination had occurred in violation of state law. The case eventually was settled, he said.

Maxfield said the Americans with Disabilities Act at Title III prohibits businesses from discriminating based on disability or on perceived disability.

“Laser vision surgery is not contraindicated in persons living with HIV generally, though if a person is HIV positive, they should consult their physician about the risks and benefits due to possible infection subsequent to surgery,” he said.

Maxfield said his knowledge of lasik surgery is based on research from two years ago, but all surgeons should practice universal precautions. All patients should be treated as if they are HIV-positive, he said.

“The laser vision surgery is a very predictable, controlled operation, unlike the broad diversity of happenings in an emergency room,” Maxfield said.

Maxfield said Ly’s alleged treatment at Boothe’s clinic sounded “bizarre, unprincipled and unlawful” to him.

Joel Lazarine, legal director of the Dallas Legal Hospice, said he also views Ly’s alleged experience at Boothe’s clinic as puzzling and disturbing.

“He didn’t do it based on the person’s own HIV status,” Lazarine said. “He did it based on the possibility he could be HIV positive, which seems even more ridiculous.”

Lazarine said for a doctor to justify such a stance, there must be objective proof of a direct threat. That would be defined as a “significant risk of safety to others,” he said.

“I think that would be difficult to do,” Lazarine said. “I haven’t heard of anybody transmitting HIV that way.”

Lazarine said he would think that other types of medical operations would be more bloody and risky to a patient than lasik surgery.

“Dental work you would have to think would be much more risky and much more bloody than eye surgery,” Lazarine said. “I think he’s a little bit on thin ice there. I think it will be hard for him to justify all of this.”

E-mail webb@dallasvoice.com

This article appeared in the Dallas Voice print edition, November 3, 2006.

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