Lynch, Circuit Judge
Dr. Hee Man Chie, an obstetrician-gynecologist, treated Vickie Lesley during her pregnancy in 1994 and 1995. After Lesley tested positive for HIV, Dr. Chie ended up referring her to another hospital that, in his judgment, was better qualified to handle deliveries by HIV-positive patients. The baby was delivered there, safely and without HIV infection.
Two years later, Lesley sued Dr. Chie for damages. The gist of her suit is that Dr. Chie denied her treatment solely because she was HIV-positive, in violation of various disability discrimination laws. The district court entered summary judgment in favor of Dr. Chie, from which Lesley appeals. The case requires us to determine how far courts should defer to a doctor's judgment as to the best course of treatment for a disabled patient in the context of discriminatory denial of treatment claims. We hold that the doctor's judgment is to be given deference absent a showing by the plaintiff that the judgment lacked any reasonable medical basis. Applying this standard to the case, we affirm.
The following facts are undisputed.
Vickie Lesley became pregnant in late 1994. In December, she began seeing obstetrician-gynecologist Hee Man Chie for prenatal care. Dr. Chie had been Lesley's gynecologist since 1982. He had admitting privileges at Leominster Hospital, a community hospital in Leominster, Massachusetts, where Lesley lived.
Lesley advised Dr. Chie of several preexisting medical conditions. She had diabetes insipidus, a seizure disorder, and a history of cervical dysplasia. She also suffered from manic depression, for which she took lithium. Because lithium increases the risk of fetal heart abnormalities, Dr. Chie ordered a fetal echocardiogram in early March 1995. He also recommended, as he did routinely for his patients, that Lesley be tested for Human Immunodeficiency Virus (HIV), the virus that causes AIDS. Lesley tested positive for HIV.
While Dr. Chie had treated patients with HIV in his gynecological practice, he had never delivered the baby of a woman with HIV. Thus, before Lesley's appointment to discuss her test results, Dr. Chie inquired about the proper treatment for pregnant women with HIV.
About a year earlier, in February 1994, the National Institutes of Health (NIH) had sponsored a clinical trial to administer the drug AZT to pregnant women with HIV. The trial had three components. Women took AZT orally during pregnancy; they then received it intravenously during labor and delivery; and after birth, the newborn was given AZT syrup. According to the results of the trial, the three-part treatment reduced the risk of transmitting HIV to newborns from 25.5 percent to 8.3 percent. Based on this success rate, the United States Public Health Service published guidelines for administering AZT during pregnancy in August 1994.
In November 1994, the Massachusetts Department of Public Health (MDPH) mailed a Clinical Advisory to all obstetricians in the state. The Clinical Advisory reproduced the U.S. Public Health Service guidelines for AZT treatment, including a fixed dosage schedule for oral and intravenous administration. The advisory also urged doctors to discuss the treatment with their patients. In an amicus brief, the MDPH states: "It was the Department of Public Health's intent when it issued the Clinical Advisory that these established steps to prescribe and monitor AZT be immediately implemented by any licensed obstetrician, including community obstetricians such as Dr. Chie." The test for monitoring AZT's side effects is a complete blood count and liver function test. According to the MDPH: "These two blood tests are regularly used by obstetrician/gynecologists as part of prenatal care." Dr. Chie in fact used the same tests to monitor the side effects of Lesley's anti-depressant medication.
At his deposition, Dr. Chie said that he read the MDPH Clinical Advisory when he received it in late 1994. Subsequently, after learning that Lesley had tested positive for HIV, he called the Leominster Hospital pharmacy to determine whether AZT was available for delivery, as the Clinical Advisory recommended. The Advisory states: "Consultation with the hospital pharmacist regarding ZDV [AZT] availability and drug preparations should be done prior to any projected need to avoid delay in initiating any part of this protocol." The pharmacy told Dr. Chie that AZT was not yet available, and that he would have to call Leominster's Pharmaceutics & Therapy (P & T) Committee to get the drug approved. Dr. Chie also called Sheila Noone, a nurse who coordinated the Women and Infants HIV Program at Worcester Memorial Hospital. The HIV Program had been one of eight facilities nationwide to participate in the 1994 NIH clinical trial of AZT and served as a clinic for pregnant women with HIV, operating in conjunction with the University of Massachusetts Medical Center, an academic teaching hospital. Nurse Noone discussed AZT treatment with Dr. Chie, and told him that he could either consult with her about Lesley's case, or enroll Lesley in Worcester Memorial's HIV Program so that she could deliver her baby there.
On March 20, 1995, Lesley and her husband met with Dr. Chie. The doctor told them about the HIV Program at Worcester Memorial and gave them Nurse Noone's name and telephone number. Dr. Chie told Lesley he had no experience administering AZT. Lesley expressed confidence in his abilities and made a follow-up appointment for March 30. In the interim, she met with Nurse Noone and signed up for counseling and other support services offered by the HIV Program, but planned to continue her prenatal care with Dr. Chie and to deliver her baby at Leominster.
Before the follow-up appointment, Dr. Chie contacted Dr. Man, chairman of Leominster's P & T Committee, and asked for AZT to be made available at the hospital pharmacy and for a protocol to be put in place for administering the drug intravenously at labor and delivery. Such a protocol would have included notifying physicians that AZT was available for use during pregnancy and delivery, and giving nurses in-service training on the procedures for administering the drug. Dr. Man assured Dr. Chie that he would bring up approval of a protocol at the next P & T Committee meeting.
Dr. Chie also spoke to other obstetricians at Leominster, including the head of the obstetrics-gynecology department, Dr. Schatz. None of the doctors with whom Dr. Chie spoke had experience with HIV pregnancies or administering AZT. Dr. Schatz advised Dr. Chie to consult with a high-risk perinatologist at Worcester Memorial about Lesley, although he did not specifically recommend that she be transferred. . . . Around this same time, Dr. Chie spoke further with Nurse Noone, who again offered either to serve as a consultant to Dr. Chie in treating Lesley or to help him arrange for a transfer.
On March 30, Dr. Chie called the Leominster pharmacy again to inquire whether AZT had been made available. The pharmacy reported that it was still awaiting approval for the drug from the P & T Committee.(note 2)
Lesley went to the HIV Program at Worcester Memorial for her remaining prenatal visits. Worcester Memorial is located about 45 minutes by car from Leominster Hospital and from Lesley's home. She delivered her baby there on July 10, 1995, five weeks before her due date. Lesley acknowledges that she received satisfactory care from the HIV Program. Her baby tested negative for HIV at birth and in follow-up tests.
On March 19, 1997, Lesley filed a complaint in the Massachusetts Superior Court against Dr. Chie, stating that his decision to transfer her to the HIV Program at Worcester Memorial rather than treat her himself violated her rights under ' 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), and the Massachusetts Public Accommodation Statute, Mass. Gen. Laws ch. 272 ' 98. Dr. Chie removed the action to federal court on April 21. On June 25, the parties stipulated to dismissal of Lesley's ADA claim.
In support of their cross-motions for summary judgment on the remaining claims, both Lesley and Dr. Chie presented expert testimony. Lesley's expert, Dr. Howard Minkoff, served on the U.S. Public Health Service task force that recommended AZT therapy for pregnant women with HIV. In his sworn statement, Dr. Minkoff said administering oral and intravenous AZT during pregnancy and delivery was "straightforward" and did not require "specialized knowledge beyond that possessed by a licensed practitioner of obstetrics." In Dr. Minkoff's opinion, "there is no medical basis for a licensed practitioner of obstetrics to refer an HIV-positive pregnant woman to a high risk clinic . . . based on HIV-positive status alone." In its amicus brief, the MDPH states its agreement with Dr. Minkoff's conclusions.
In support of Dr. Chie, Dr. Bruce Cohen, a specialist in high-risk obstetrics, focused on Lesley's complex combination of psychiatric and medical problems. Dr. Cohen said: "To have denied such a complicated and high risk patient as Mrs. Lesley the available quality care which the situation demanded would have been unethical." Dr. Bonnie Herr, a community-based obstetrician, said that at the time Dr. Chie transferred Lesley, "knowledge and experience in the management of HIV-positive pregnant patients among obstetrician-gynecologists in the general medical community (i.e., outside of teaching centers) was limited." Dr. Howard Heller, an associate physician at Brigham & Women's Hospital, agreed that after publication of the MDPH Clinical Advisory in November 1994, it took several months for most hospitals and obstetricians to institute and implement AZT treatment "since it required a coordinated effort within each hospital and was not under the control of an individual obstetrician." Because of the "many components" involved in AZT treatment, and the lack of assurance that these components would be in place at Leominster in time for Lesley's labor and delivery, it would have been "medically inappropriate" for Dr. Chie to continue treating Lesley, Dr. Heller said. . . .
. . . .
We dispose of some preliminaries. Section 504 of the Rehabilitation Act provides that:
The parties do not dispute the first two elements. Lesley's HIV-positive status is a disability for purposes of the Act. Bragdon v. Abbott, 524 U.S. 624, 631, (1998). Dr. Chie's receipt of Medicaid funds makes him a federally funded entity for purposes of the Act. The parties do dispute the third element, whether Lesley was "otherwise qualified" to receive the services she sought. But we do not address this issue, as we resolve the case based on the fourth element.
The essential question is whether plaintiff's evidence presents a triable issue as to whether she was denied treatment "solely by reason of her disability." Lesley characterizes Dr. Chie's decision to transfer her as a discriminatory act cloaked as an exercise of medical judgment. She argues that the testimony of her experts demonstrates that Dr. Chie was perfectly competent to treat her, implying that the claimed medical basis for his decision was pretextual. In mirror fashion, Dr. Chie characterizes Lesley's suit as an attack on his medical judgment, thinly veiled as a disability discrimination claim. He argues that the Rehabilitation Act was never intended to interfere with bona fide medical judgments as to how best to treat a patient with a disability. Thus, this case requires us to explore the extent to which the Rehabilitation Act contemplates judicial scrutiny of alleged exercises of medical judgment.
We start with the obvious: the Rehabilitation Act does not bar a doctor from referring a disabled patient elsewhere simply because the medical reasons for the referral are related to the patient's disability. It would be nonsensical, and downright contrary to the purposes of the statute, to read the statute's "solely because of" language to prohibit medical treatment that is appropriate "solely because of" a patient's disability. As Congress made clear in the legislative history of the Americans with Disabilities Act, the disability laws are not intended to prevent a physician from referring a disabled patient "if the disability itself creates specialized complications for the patient's health which the [referring] physician lacks the experience or knowledge to address." H.R. Rep. No. 101-485, pt. 2, at 106 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 389.
What is not as clear, and what is at issue in this case, is the extent to which a court should defer to a physician's claim that he lacks the experience, knowledge, or other prerequisites necessary to address the medical conditions that allegedly prompted his referral. Two countervailing concerns bear on the question.
On the one hand, courts cannot simply defer unquestioningly to a physician's subjective judgment as to whether his referral was proper. Physicians, of course, are just as capable as any other recipient of federal funds of discriminating against the disabled, and courts may not turn a blind eye to the possibility that a supposed exercise of medical judgment may mask discriminatory motives or stereotypes.
On the other hand, courts should not probe so far into a doctor's referral decision as to inquire whether it was the correct or best decision under the circumstances, or even whether it met the standard of care for the profession. Lest questions of medical propriety be conflated with questions of disability discrimination, it must take more than a mere negligent referral to constitute a Rehabilitation Act violation. Were the Act construed otherwise, so as effectively to impose on physicians a special, disability-centric duty of care, physicians would face potentially conflicting state and federal legal obligations. That is, to avoid state malpractice liability, a physician might wish to err on the side of caution by referring a patient with disability-related complications to a better qualified specialist or more advanced facility; yet under the Rehabilitation Act, as hypothetically construed, the physician who did so would risk being found liable for discrimination. . . .
Avoiding both a rule giving physicians complete deference and a rule requiring a full-fledged inquiry into their diligence, we head for the middle ground and adopt the following standard. Under the Rehabilitation Act, a patient may challenge her doctor's decision to refer her elsewhere by showing the decision to be devoid of any reasonable medical support. This is not to say, however, that the Rehabilitation Act prohibits unreasonable medical decisions as such. Rather, the point of considering a medical decision's reasonableness in this context is to determine whether the decision was unreasonable in a way that reveals it to be discriminatory. In other words, a plaintiff's showing of medical unreasonableness must be framed within some larger theory of disability discrimination. For example, a plaintiff may argue that her physician's decision was so unreasonable -- in the sense of being arbitrary and capricious -- as to imply that it was pretext for some discriminatory motive, such as animus, fear, or "apathetic attitudes." Alexander v. Choate, 469 U.S. 287, 296 (1985); see, e.g., Howe v. Hull, 874 F. Supp. 779, 788-89 (N.D. Ohio 1994) (under ADA, jury could find doctor's diagnosis that plaintiff had extremely rare disorder requiring transfer was pretextual, where patient only had an allergic drug reaction, and doctor did not mention the rare disorder in requesting the transfer but only mentioned plaintiff's HIV-status). Or, instead of arguing pretext, a plaintiff may argue that her physician's decision was discriminatory on its face, because it rested on stereotypes of the disabled rather than an individualized inquiry into the patient's condition -- and hence was "unreasonable" in that sense. See, e.g., Sumes v. Andres, 938 F. Supp. 9, 11-12 (D.D.C. 1996) (issuing summary judgment against doctor who refused to treat deaf patient on ground that "all deaf people are high risk," without making any inquiry regarding her specific condition).
Lesley does not come close to making either form of showing. Lesley argues that Dr. Chie's decision to transfer her was so lacking in any reasonable medical support as to suggest it was pretext for discrimination. But any claim that Dr. Chie sought to hide some discriminatory motive is belied by the fact that Dr. Chie had knowingly treated other HIV-positive patients in the past; likewise, he continued to treat Lesley for some time after learning she was HIV-positive.(note 11) Nor can Lesley plausibly claim that Dr. Chie transferred her on the basis of stereotypes concerning her HIV-positive status. Dr. Chie did not abruptly assume that delivering the baby of an HIV-positive patient was beyond his capability; he came to that conclusion based upon a "fact-specific and individualized" inquiry. Moreover, his decision was confirmed at the time by Dr. Fraser, Lesley's primary care physician and managed care gatekeeper, who had to approve Lesley's transfer; and the decision was also confirmed by Nurse Noone, who from the start suggested referral as a perfectly acceptable treatment option available to Dr. Chie. The combination of these factors -- Dr. Chie's demonstrated willingness to treat HIV-positive patients he felt competent to treat, and the fact that his decision not to treat Lesley was made pursuant to an individualized inquiry and was confirmed by independent, knowledgeable persons at the time -- makes it impossible for Lesley to succeed in showing that Dr. Chie's decision was discriminatory.
Even putting aside Dr. Chie's demonstrated willingness to treat other HIV-positive patients, Lesley's insistence that Dr. Chie's proffered medical justification for transferring her was so unreasonable as to imply it was "pretext" does not find sufficient support in the evidence. Lesley points to the MDPH Clinical Advisory as evidence that the prevailing medical opinion at the time was that any licensed obstetrician was capable of administering AZT. As proof of the same point, she invokes the testimony of her expert, Dr. Minkoff, in whose opinion the administration of AZT during pregnancy and delivery does not require any specialized knowledge beyond that of an ordinary obstetrician. . . .
Lesley's evidence of prevailing medical opinion does not suffice to show that Dr. Chie's decision lacked any reasonable medical basis. The evidence proffered merely goes toward proving that in 1995, as a general matter, a licensed obstetrician would have been competent to administer AZT to an HIV-positive patient. . . . While it may have been generally true at the time that a licensed obstetrician could administer AZT to an HIV-positive patient, nothing said by the MDPH or Dr. Minkoff suggests that an obstetrician's referral of such a patient would have been inherently unreasonable.
Rather, reasonableness depends on the circumstances, and here a number of circumstances supported Dr. Chie's judgment to transfer Lesley elsewhere. First, despite its endorsement by the MDPH, intravenous administration of AZT during delivery was still a recent development in obstetrics with which Dr. Chie reasonably felt unfamiliar; as Nurse Noone testified in deposition, "Things were changing pretty quickly back in those days. . . . It was really -- at that point, this was all very new . . . ." Second, Dr. Chie had reason to worry that Leominster Hospital would not be adequately prepared and equipped to administer AZT in time for Lesley's delivery; as of March 30, 1995, the date of Dr. Chie's referral, when Lesley was at 20 weeks gestation and at significant risk for premature delivery, AZT had yet to be made available to Leominster's pharmacy and a protocol for administering the drug had yet to be put in place. Third, Worcester Memorial was close by; and as one of eight clinics nationally to participate in the study on which the MDPH Clinical Advisory was based, it obviously could be trusted to provide Lesley a high level of care.
In these circumstances, even if Dr. Chie's decision stemmed from an overabundance of caution, by no means can the decision be thought to lack any reasonable medical basis. The decision was simply a reasoned medical judgment with which the patient disagreed. As to such disagreements, when they warrant litigation, state medical malpractice law, not the Rehabilitation Act, provides the appropriate law of resort. . . .