The Third Circuit picks up on a 1997 Seventh Circuit decision, Christian v. St. Anthony Med. Ctr., 117 F.3d 1051 (7th Cir. 1997), and holds that the side effects from a course of medical treatment may themselves constitute an impairment under the ADA, even if the underlying medical condition itself is not a disability. But the plaintiff loses this case, anyway, because the course of treatment (for weight and sleep apnea) was not supported by his treating doctor.
Sulima v. Defense Support Services, LLC, No. 08-4684 (3d Cir. Apr. 12, 2010): “According to the opinion of his treating physician, Dr. Guy Michael Fasciana, Sulima is morbidly obese. Sulimalso suffers from sleep apnea, likely related to his obesity. The sleep apnea causes him to occasionally stop breathing for short periods while sleeping, at times requiring him to use a machine to help him breathe while he sleeps.” The plaintiff was referred to another physician, who put him on a course of drugs to curb the weight problem. The drugs, essentially laxatives, required very long trips to the bathroom. The employer noted the difficulty, attempted to transfer him to other duties, but ultimately there was no work to perform at the new site and the plaintiff was effectively required to accept a lay-off. He brought this action under the ADA.
The panel, though ultimately affirming summary judgment, begins with the legal question of whether a course of medical treatment itself might constitute an impairment. Citing Williams and cases from other circuits, the panel holds that it can under proper circumstances:
“We agree with the Seventh Circuit that side effects from medical treatment may themselves constitute an impairment under the ADA. However, as the Seventh Circuit noted, this category of disability claims is subject to limitation. For a treatment’s side effects to constitute an impairment under the ADA, it is not enough to show just that the potentially disabling medication or course of treatment was prescribed or recommended by a licensed medical professional. Instead, following the Christian test, the medication or course of treatment must be required in the ‘prudent judgment of the medical profession,’ and there must not be an available alternative that is equally efficacious that lacks similarly disabling side effects. Christian, 117 F.3d at 1052. The concept of ‘disability’ connotes an involuntary condition, and if one can alter or remove the ‘impairment’ through an equally efficacious course of treatment, it should not be considered ‘disabling.'”
Under the facts of this case, though, the panel found that the plaintiff’s treatment was not an impairment as a matter of law:
“We agree with the District Court’s holding that Sulima’s gastrointestinal problems did not meet this standard, because he did not demonstrate that his prescribed medication was required in the prudent judgment of the medical profession. After being confronted by his employer regarding his frequent long breaks, Sulima contacted his doctor, Dr. Fasciana, who recommended that Sulima stop taking the medication that was causing the side effects. In his deposition, Dr. Fasciana testified that if a patient reported problems with the medications that Sulima was taking, ‘[w]e would have stopped’ prescribing those medications. App. 964. There is nothing in the record to contradict this assessment. Additionally, there is no evidence in the record to show that the specific medications causing the side effects were, in the judgment of the medical profession, the only efficacious medications for Sulima. There is also no evidence in the record to demonstrate that all other equally efficacious courses of treatment would have caused similarly disabling side effects.”
As a sidelight, the Third Circuit observes that this category of impairment is not affected by the 2008 AD amendments Act: “The resulting statutory section only prohibits the consideration of ameliorative mitigatory measures, and does not address potentially negative side effects of medical treatment. See 42 U.S.C. § 12102(4)(E).”