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Kirbens v. Wyoming State Board of Medicine12/6/1999
413016 at *5 (D.N.J. Oct. 5, 1993) (quoting United States v. Morton, 467 U.S. 822, 834 (1984)). The federal regulations discuss the relationship between safety questions and protecting disabled individuals under the ADA in this way:
Where questions of safety are involved, the principles established in ' 36.208 of the Department=s regulation implementing title III of the ADA, to be codified at 28 CFR, part 36, will be applicable. That section implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation, if that individual poses a direct threat to the health or safety of others. A Adirect threat@ is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. . . . Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others will not be AAqualified,@ @ if reasonable modifications to the public entity==s policies, practices, or procedures will not eliminate that risk. 28 C.F.R. pt. 35, App. A at 481 (1999) (emphasis added).
The regulatory language establishes that the ADA will not protect a disabled individual whose disability constitutes a direct safety threat to the public. Other jurisdictions have determined that the ADA does not prevent disciplining disabled attorneys whose misconduct substantially harmed or threatened their clients. State ex rel. Oklahoma Bar Ass=n v. Busch, 919 P.2d 1114, 1119-20 (Okla. 1996); Matter of Wolfgram, 1995 WL 506002 at *7 (Cal. Bar. Ct. Aug. 22, 1995). We agree that the appropriate rule in Kirbens= case should be that the ADA will not protect him from Board disciplinary proceedings if his conduct significantly risks the health or safety of others.
Under a standard of clear and convincing evidence, the Board concluded that Kirbens had violated several provisions of the Act by performing inappropriate or unnecessary surgeries upon several patients. Kirbens= treating physician, Dr. Irons, testified that in his opinion, Kirbens cannot practice medicine with reasonable skill and safety and would pose a significant risk to the health and safety of others by virtue of his disability. Based on this opinion, the Board concluded that a physician cannot be Aqualified@ under the ADA if he poses a significant risk to the health or safety of others by virtue of his disability. From hospital records of adverse actions against Kirbens, the Board concluded two hospitals suspended his privileges because of either possible incompetence or misconduct. The Board established that Kirbens cannot practice medicine without substantial harm or threat to his patients. Kirbens does not challenge either these findings or Conclusions. We agree that the ADA does not consider Kirbens as a Aqualified individual with a disability.@ We hold that the ADA did not prevent the Board from revoking Kirbens= medical license.
2. Limitation of Disciplinary Proceedings.
Despite the Board=s finding that Kirbens had significantly harmed patients, Kirbens maintains that, under the ADA, his disability entitled him to avoid revocation by voluntarily relinquishing his license and receiving treatment under a state sponsored rehabilitation program. This assertion is questionable because in its individualized assessment upon his motion requesting that he be allowed to voluntarily relinquish his license, the Board determined that Kirbens= acts were not shown to have been caused by his
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