This section contains the nature of the case and procedural background.

In December 1986, Dr. Vernick (D) saw Vadnais at the Ear, Nose, and Throat Clinic at Beth Israel Hospital (D) and treated him for severe pain in the right ear with antibiotics and ear drops. In January 1987, Dr. Vernick (D) diagnosed a perforation in the right ear and recommended surgery to repair the perforation. Vadnais agreed but Dr. Vernick (D) learned that Vadnais was infected with HIV and in March 1987, informed Vadnais that he would not perform the operation. The ear condition persisted, causing severe pain and discomfort. Vadnais continued the ineffective use of antibiotics and ear drops. In August 1988, Dr. Yale Berry, unaware of Vadnais' HIV status, performed the surgery, curing the ear problem. In April 1989, Vadnais, brought this suit alleging discrimination in violation of § 504 of the Rehabilitation Act of 1973. Vadnais claimed that Dr. Vernick (D) refused to perform elective ear surgery on him because Vadnais had tested positive for Human Immunodeficiency Virus (HIV), associated with Acquired Immune Deficiency Syndrome (AIDS). Vadnais claimed to have suffered severe pain in his right ear, which pain was prolonged because of Dr. Vernick's (D) failure to perform surgery. Vadnais had surgery elsewhere and the pain disappeared. Ds filed motions for summary judgment. On March 14, 1990, Vadnais died of AIDS-related illnesses. The executor of the estate Glanz (P) was substituted pursuant to Fed. R. Civ. P. 25(a)(1). The motions were stayed to allow Ds to file a motion to dismiss on the ground that the federal cause of action abated with Vadnais' death. That motion was denied in part, and P was allowed to maintain this suit to seek compensatory, but not punitive, damages. The case is before the court on summary judgment motions.

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