HIV-infected physicians and the practice of seriously invasive procedures.
Subject: HIV (Viruses)
Medical ethics (Analysis)
AIDS (Disease) in the workplace (Cases)
Physician impairment (Analysis)
Confidential communications (Physicians)
Medical care (Quality management)
Author: Gostin, Lawrence
Pub Date: 01/01/1989
Publication: Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 1989 Hastings Center ISSN: 0093-0334
Issue: Date: Jan-Feb, 1989 Source Volume: v19 Source Issue: n1
Accession Number: 7464295
Full Text: HIV-Infected Physicians and the Practice of Seriously Invasive Procedures

Aids is increasingly being viewed as an occupational disease for physicians despite the evidence that human immunodeficiency virus (HIV) is exceedingly hard to transmit in health care settings.(1) Physicians who carry out seriously invasive procedures claim the "right to know" whether their patients are infected with HIV, including the right to screen patients for the virus.(2) Some hospitals, irrespective of what the law may allow, already screen their patients without specific informed consent.(3)

Conversely, patients undergoing seriously invasive procedures claim the right to know if their physician is infected with HIV. Eighty-six percent of a Gallup Poll sample taken in 1987 said patients should be told if their physician has AIDS.(4) Most patients would choose not to receive treatment from an infected physician. Their case has been buttressed by a policy statement from the American Medical Association that "a physician who knows that he or she is seropositive should not engage in any activity that creates a risk of transmission of the disease to others."(5) Presumably this advice would extend to other health care workers involved in performing seriously invasive procedures. If it is wrong for infected physicians to treat patients invasively, does this create a correlative duty on the part of hospitals to screen physicians before they carry out such treatment? The prospect of a "right to know" the health status of both doctor and patient, with calls for screening on both sides, together with the potential of litigation for avoidable transmission of HIV, undermine trust within the health care system.

The concept of a "right to know" the serologic status of physician or patient is misplaced. Information that a patient is HIV positive is of very limited use to the physician. Physicians have a professional,(6) if not a legal,(7) responsibility to treat infected patients. It is usually not possible to utilize different methods for treating HIV-positive patients to reduce the risk of contracting the infection; and in some cases different methods could result in prolongation of operative time, potentially having an adverse effect on the patient. Further, the Centers for Disease Control recommends,(8) and the Occupational Health and Safety Administration requires,(9) the universal application of barrier protection in all cases of exposure to blood. Information that a patient is HIV-positive should not significantly affect the precautions taken in most cases.(10)

Patients, on the other hand, clearly would act upon the knowledge that their physicians were infected with HIV, and when they could choose many would not opt for a physician who is infected with HIV. However, it is not always reasonable for the patient to expect this information. The certain consequence of informing patients that their physician is HIV-positive would be the abandonment of the physician's practice.

This article, therefore, does not make a case for a patient's "right to know.c Rather, it argues that the risks inherent in seriously invasive procedures are sufficient for the profession to take patient safety seriously, even before the first case of HIV-transmission to a patient occurs. Professional guidance is required to identify the circumstances where a physician should withdraw from performing certain seriously invasive procedures. This conclusion is based upon the doctrine of informed consent and evolving standards of professional care. Failure to take appropriate preventive action now may result in policies that are overly restrictive. For example, Cook County Hospital already has a policy of allowing patients to refuse to be treated by HIV-positive physicians who "routinely provide direct patient care."(11) The policy would appear to put the careers of infected physicians at risk even if they do not perform seriously invasive procedures. This article also makes the case for protecting the privacy of infected physicians and safeguarding against discrimination by their employers and others.

Risks of HIV Transmission in Health Care Settings

There has been no scrutiny of transmission of HIV from physicians to patients, and there is no recorded case where it has occurred.(12) This is not surprising since there has been no systematic attempt to discover which physicians are HIV positive. But there has been careful examination of transmission from patient to health care worker,(13) and some indication of the level of risk in both directions can be ascertained. The possibility of transmission in health care settings has been demonstrated by approximately sixteen cases where health care workers seroconverted from occupational exposure to HIV.(14)

The sixteen reported cases of occupational exposure to HIV appear insignificant given the frequency of contacts between health care workers and HIV-infected patients. Several prospective studies show there is a risk in the range of 0.03 to 0.9 percent that a health care worker will contract HIV following a documented case of percutaneous or mucous membrane exposure to HIV-infected blood.(15) This is relatively low compared to the risk of 12 to 17 percent seroconversion after accidental percutaneous injection from patients with hepatitis B, even after passive immunization of recipients by immune serum globulin.(16)

Physicians performing seriously invasive procedures, such as surgeons, have a potential to cut or puncture their skin with sharp surgical instruments, needles, or bone fragments. Studies indicate that a surgeon will cut a glove in approximately one out of every four cases,(17) and probably sustain a significant skin cut in one out of every forty cases.(18) Given these data, it has been calculated that the risk of contracting HIV in a single surgical operation on an HIV-infected patient is remote--in the range of 1/130,000 to 1/4,500.(19)

It is impossible accurately to calculate the level of risk of HIV transmission from surgeon to patient. Surgeons who cut or puncture themselves do not necessarily expose the patient to their blood, and even if they do the volume is extremely small. A small inoculum of contaminated blood is unlikely to transmit the virus.(20) This suggests that the risk of infection from surgeon to patient is much lower than in the opposite direction. Nonetheless, the fact that the surgeon is in significant contact with the patient's blood and organs, together with the high rate of torn gloves, makes it reasonable to assume that the risk runs in both directions, as is the case with the hepatitis B virus. The cumulative risk to surgical patients, arguably, is higher. While an HIV-infected patient is likely to have relatively few seriously invasive procedures, the infected surgeon, even if the virus drastically shortens his surgical career, can be expected to perform numerous operations. Assuming that the surgical patient's risk is exceedingly low (1/130,000), the risk that one of his patients will contract HIV becomes more realistic the more operations he performs--1/1,300 (assuming 100 operations) or 1/126 (assuming 500 operations). Patients, of course, cannot expect a wholly risk-free environment in a hospital. But there does come a point where the risk of a detrimental outcome becomes sufficiently real that it is prudent for the profession to establish guidelines.

Patient Treatment Decisions

The doctrine of informed consent can help clarify the physician's duties toward his patient. In many jurisdictions, the law of informed consent lays down a patient-oriented standard for the information that must be disclosed by the physician.(21) It is for the patient to assess the risk and to determine where his or her interests lie. If the risk would be intolerable for the reasonably prudent patient he or she is entitled to make that judgment, however unwise the assessment of relative risk is in the eyes of the medical profession.(22) Courts, therefore, require the physician to provide all information that a reasonable patient would find relevant to make an informed decision on whether to undergo a medical procedure.(23) Risks that are relevant or "material" depend upon their severity, the probability that they would occur, and the circumstances under which they would be endured.(24) As the severity of a potential harm becomes greater the need to disclose improbable risks grows, though courts have yet to assign a threshold for the probability of a grave harm beyond which it must be disclosed.(25)

A reasonably prudent patient would find information that his physician is infected with HIV material to his decision to consent to a seriously invasive procedure because the potential harm is severe and the risk, while low, is not negligible. Moreover, he can avoid the risk entirely without any adverse consequences for his health: By choosing another equally competent physician (where available) he can obtain all the therapeutic benefit without the risk of contracting HIV from his physician. The patient, then, can demonstrate not only that the information is material to his decision, but that he would have made a different decision had he been given the facts.

Courts have usually been concerned with risks inherent in the treatment, rather than risks associated with a physician's physical condition or skill. Although courts have required disclosure of risks as low as 1 percent or less,(26) they have not required disclosure of risks that are simply unforeseeable--because no case has ever occurred, or the risk is minute (on the order of 1 in 100,000).(27) The risk of transmission of HIV in the ordinary physician/patient relationship where exposure to large amounts of blood is unlikely is too remote to be foreseeable. Nonetheless, the risks inherent in seriously invasive treatments may well reach the threshold where they become relevant to a rational assessment by the patient.

Courts have been highly consistent in elucidating valid reasons for nondisclosure, all ostensibly for the patient's therapeutic benefit.(28) Relevant information may be withheld when the treatment is necessary in an emergency(29) or is nonelective; the patient is incompetent(30); or disclosure would be harmful to his psychological state.(31) Nondisclosure of a physician's seropositive status is not founded upon the patient's interests, however, but expressly on the physician's, particularly with respect to rights to privacy and confidentiality.

In Piper V. Menifee the court held that a physician was liable to the patient and his family when he failed to inform them that he was attending another patient infected with smallpox. The court held that "if a physician, knowing he has an infectious disease, continues to visit his patients without apprising them of the fact... he is guilty of a breach of duty."(32)

While few cases affirm the holding in Piper, there is ample judicial authority that a physician has a duty to notify third parties who might be exposed to his patient's contagious disease.(33) If a physician has a duty to inform and protect third parties, he owes at least as great a duty toward his own patients.

Yet the right to be informed of a physician's seropositive status requires a finely balanced assessment. There are limits to what society reasonably can expect of a physician in disclosing remote risks. The Piper case and more recent duty-to-inform cases involved more substantial risks of contracting disease. There are, moreover, many risks posed by the physician himself, such as inexperience in performing highly technical operations, that are not traditionally disclosed in modern medicine. Nevertheless, the increasing focus of modern law on the patient's rights should require a seropositive physician to withdraw from performing seriously invasive procedures if there is a significant risk to the surgeon's patients.

The Evolving Standard of Professional Care

A physician is expected in law to exercise the care ordinarily used by members of the medical profession in his specialty. Failure to exercise that standard of care is negligence, and a physician will be liable to his patient if harm results.(34) Most cases of medical negligence involve lack of due professional care in providing treatment, but in addition to Piper a few demonstrate that a physician may be negligent for continuing to practice when he knows, or reasonably should know, that his physical condition may pose a risk to the patient.

An oral surgeon paid a substantial settlement for transmission of hepatitis B to his patient, and through her to her husband and her child in utero.(35) The employing hospital of a potentially dangerous physician can also be held liable for allowing an infectious or incompetent physician to treat patients.(36)

Both the physician and hospital, therefore, may be negligent for treating a patient in circumstances where the professional standard of care is to refrain from practicing. There is little doubt that a malpractive case would succeed if adequate infection control guidelines had not been followed and, as a result, HIV was transmitted to the patient.(37)

What if HIV is transmitted even though all reasonable infection control procedures are followed? The outcome of a malpractice case would be uncertain. A court might well take cognizance of the fact that there has been no documented case of transmission of HIV from health care worker to patient,(38) and that Boards of Registration in medicine and individual physicians have made conflicting statements of principle.(39)

Nevertheless, the evolving standard of professional care is for an HIV-infected physician to refrain from performing seriously invasive procedures. Physicians have a special responsibility in practicing their profession because of the guardianship of their patients' health. The American Medical Association states that a physician who knows that he or she has an infectious disease should not engage in any activity that creates a risk of transmission of the disease to others... P atients are entitled to expect that their physicians will not increase their exposure to the risk of contracting an infectious disease, even minimally.(40)

The U.S. Public Health Service also recommends an individual assessment to determine whether an HIV-infected health care worker "can adequately and safely be allowed to perform patient care duties or whether their work assignments should be changed..."(41)

The American Hospital Association, state hospital associations and state public health departments have likewise acknowledged the risk of transmission of HIV from health care worker to patient in performing invasive procedures.(42) Each group has recognized the legitimacy of an individual determination limiting the practice of invasive procedures by HIV-infected physicians.

While the Public Health Service and professional medical associations have indicated that HIV-infected physicians may pose unacceptable risks for patients when they perform medical procedures, they have not identified those procedures. In each case HIV-infected physicians are told to seek advice and counseling from their personal physician, employing hospital, and colleagues to determine any restrictions on their practice of medicine. The AMA Board, for example, has said that "the decision must be determined on an individual basis founded on the opinions of the worker's personal physician and those of the medical directors and personnel health service staff of the employing institution."(43)

There is a need for national guidance on which procedures should be avoided by infected physicians. Clear guidance would help set a uniform standard of practice across the country; reduce the burden on individual physicians and hospitals to make difficult assessments of risk; prevent inconsistent practice in different hospitals and geographic regions leading to loss of patient confidence; and reduce the possibility of legal liability for infected physicians and hospitals that countenance allowing an infected physician to continue performing seriously invasive treatment. The absence of prospective guidelines issued by the medical profession could well result in undesirable retrospective standards laid down by the courts.

Physician Screening

If legal and public health policy require the HIV-infected physician to refrain from performing certain seriously invasive procedures, does the hospital have an obligation to screen physicians? The law holds physicians and hospitals accountable, not only for what they know, but for what they reasonably should know. If a physician has engaged in high risk behavior such as homosexual activity or sharing of needles, and failed to be tested or to make any disclosure to the hospital, the courts probably would put him in the same position as if he knew he were seropositive. Any other rule of law would provide an incentive for physicians to avoid being tested and counseled. The prudent course, then, is for physicians who are at increased risk for HIV to obtain confidential testing and counseling, and to inform the health care facility of a positive test result, before performing seriously invasive medical procedures.(44)

Physicians who are not at increased risk for HIV or those who do not perform seriously invasive procedures have no legal or ethical obligation to be tested; and there should be no duty on health care facilities to screen them routinely. In such the social, personal, and financial costs of a comprehensive screening program outweigh the public health benefit. The disadvantages of mandatory physician screening are similar to those in other low risk population and have been explicated elsewhere.(45)

A positive test result in a health care professional who is not in fact infected could have devastating personal consequences. A negative test result, moreover, does not guarantee that a physician is free from infection. There is a period of up to twelve weeks or longer before antibodies are produced and detectable after infection; or the physician could contract the virus at some future time, necessitating periodic retesting at considerable expense to the health care facility.

Systematic collection of highly sensitive health care data would place considerable burdens on hospitals. They would be required to keep the information confidential and could be liable for intentional or negligent disclosure.(46) Hospitals would also have to decide whether to disclose the information to patients or third parties under a duty to warn theory.(47)

The legal and ethical quandaries, therefore, posed for the hospital by systematic collection of the HIV status of all physicians would be disproportionate to any public health benefit. The medical literature is replete with documented cases of transmission of hepatitis B in health care settings,(48) and there are some one hundred health care worker deaths each year attributable to HBV. The risk of transmission and cumulative morbidity and mortality associated with HBV are greater than for HIV. Yet there is no systematic screening for HBV, and restrictions on the practice of invasive procedures often occur only after a physician has transmitted HBV (sometimes repeatedly).(49) If the case for screening for hepatitis B has never been sustained, what new facts or data mandate screening for the AIDS virus?

Finally, a systematic program of screening for HIV among physicians might well violate constitutional protection of a person's right to be free from "unreasonable search and seizures." A blood test for HIV with important personal consequences, like a test for drugs or alcohol,(50) may infringe upon a person's "expectation of privacy."(51) In Glover v. Eastern Nebraska Community Office of Mental Retardation, a federal district court held that screening for HIV among certain employees in a mental retardation facility constituted unreasonable search and seizure because the risk to clients "is extremely low and approaches zero."(52) It is possible that the courts may find a greater public health interest in a screening program more narrowly focused on health care workers involved in seriously invasive procedures; yet any widespread screening policy is likely to be found unconstitutional.

An effective argument could be made that, once it is determined that HIV-positive physicians should refrain from seriously invasive treatment, it necessarily follows that they should be screened before performing such procedures. I do not accept, however, that screening is a logically necessary result. There are many well-accepted situations in modern medicine where legally and ethically it is advisable for physicians to restrict their medical practice but which do not require systematic screening. A surgeon with HBV, TB or who is drug or alcohol impaired should not continue to practice without the hospital's knowledge and review. It does not necessarily follow (nor might it even be constitutionally permitted) systematically to screen all surgeons for HBV, TB, drugs, and alcohol. Rather, I argue that a physician who knows, or ought to know, that he or she is HIV-positive, should voluntarily refrain from practicing seriously invasive procedures. The cost of such a professional rule is not prohibitive and can be ameliorated by transfer to other duties and by equitable compensation programs. However, the sheer social and personal burdens of systematic screening on physicians, hospitals, and the entire health care system substantially outweigh its public health benefit.

Consequences for the Physician

The standards developed thus far for HIV-infected physicians are strict and based upon prevention of even a minimal risk of transmission. If the physician is expected voluntarily to disclose his serological status to the patient and/or to refrain from performing certain seriously invasive procedures, he is entitled to protection from the consequences of his good faith actions. The right to practice medicine is "sufficiently precious to surround it with a panoply of legal protections."(53) Any public health policy on HIV-infected physicians, therefore, must ensure confidentiality and nondiscriminatory treatment including reasonable accommodation.

Confidentiality. HIV-infected physicians, like other seropositive individuals are concerned with maintaining confidentiality. Because the majority of physicians infected with HIV are members of risk groups subject to persistent prejudice and discrimination, unauthorized disclosure of their serological status can lead to social opprobrium among family and friends, and to loss of employment, housing and insurance. Consequently, physicians have strong grounds for desiring personal privacy and confidentiality of medical information. Their cooperation with the hospital in protecting against the spread of infections relies upon their trust that their serological status will be kept confidential.

Physicians have a right to confidentiality of intimate health care information based upon a number of legal grounds. First, physicians with HIV are treated by a personal physician and are entitled to the protection of confidentiality inherent in the physician/patient relationship. Second, employees have the right to expect that sensitive health care information will not be disclosed by their employers without their permission.(54) While health care employers may have a legitimate interest in knowing if a physician is HIV positive, they have no legitimate interest in disclosing this information to patients, other employees, or individuals or organizations outside of the hospital. Third, statutes in several states and municipalities specifically protect the confidentiality of HIV-positive test results. These statutes generally provide civil liability for disclosing the result of a serological test without the individual's written informed consent.(55)

Two cases establish the importance of confidentiality for the physician, at least against media disclosure to the general public. In X.v.Y. the British High Court issued a permanent injunction against a national newspaper

publishing confidential information about a physician with AIDS. The court held that "the public interest in the freedom of the press and informed debate on AIDS was outweighed by the public interest in maintaining the confidentiality of actual or potential AIDS sufferers."(56)

In a similar case the Miami Herald filed suit against the Dade County Health Department and the hospital to gain access to the medical records and death certificate of a urologist. The newspaper's intention was to confirm that the urologist had practiced medicine for several years while he had AIDS. The court did not allow release of this confidential information,(57) basing its decision upon the state Public Records Act, which regards such information as confidential unless the person claiming the information has a "direct and tangible" interest in it.

Confidentiality for the HIV-infected physician not only safeguards his personal rights, but also is in the public interest.(58) The right to confidentiality will encourage physicians to disclose their serological status to their employers, and to seek counseling, treatment, and peer review of the safety of their continued medical practice.

Antidiscrimination. Discrimination against a physician because of his HIV status is just as repugnant as discrimination on other morally irrelevant ground such as race or gender. The United States Supreme Court in School Board of Nassau County v. Arline condemned irrational prejudice based upon a person's infectious condition noting that:

Society's accumulated myths and fears about disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects give rise to the same level of public fear and misapprehension as contagiousness.(59)

AIDS has been held to be a handicap within the meaning of section 504 of the Federal Rehabilitation Act of 1973 and similar state statutes.(60) The Civil Rights Restoration Act 1988 states that section 504 is applicable to a person with a contagious disease if he does not pose "a direct threat to the health or safety of other individuals or...who is unable to perform the duties of the job." The congressional history of the 1988 Act shows that the language "direct threat" embodies the standard of "significant risk of transmission" articulated by the Supreme Court in Arline.(61)

Physicians, then, have a right under federal and state handicap laws not to be denied the right to practice medicine or to be reassigned to an administrative position unless there is a significant risk of HIV transmission. Any limitation on the right of a physician to practice must be reasonably related to the achievement of greater patient safety. Narrow limitations on the practice of seriously invasive procedures may thus be found not to be discriminatory.

In Doe v. cook County Hospital U.S. District Court Judge John A. Nordberg required the signing of a consent decree to protect an HIV-infected neurologist from unreasonable limitations placed on his right to practice.(62) The physician agreed to special surveillance; to double glove before performing invasive procedures; and not to perform three procedures--muscle biopsy, sural nerve biopsy and cerebral arteriography--formally a part of his credentialing, but which he had not performed in recent years. The judge, in language mirroring the Arline decision, held that future alterations in clinical practice could be permitted only if the physician posed "a significant health or safety risk to himself or others"; and, except in an emergency, the neurologist received seven days' notice of any alteration.

The Cook County Hospital case establishes the need for balance between a physician's rights and a patient's safety. Yet the concept of "significant risk" needs further clarification. "Significant risk" should be based upon epidemiologic evidence of the gravity of the harm and the probability of it occurring. A risk is significant if: the mode of transmission is well established, even if the risk is small; the potential harm is serious; and the public health intervention is efficacious and does not pose disproportionate burdens on individual rights. Withdrawal of an HIV-infected physician from performing seriously invasive procedures, provided the information can be kept confidential, does not pose an unbearable burden on the physician or the health care system. Reassignment to noninvasive procedures virtually eliminates any risk of harm.

The Cook County case also shows the futility of a case-by-case determination by courts of which medical procedures are sufficiently safe for an HIV-infected physician to perform. It is not the proper function of the courts to list a detailed set of allowed and prohibited medical procedures. The court's decision simply underlines the need for forward-looking professional guidelines to assess which medical procedures pose a risk to the health of patients.

The federal Rehabilitation Act requires employers to make reasonable accommodation for handicapped workers. Health care facilities should ensure that HIV-infected physicians have the opportunity for a wide-ranging clinical practice that is both professionally rewarding and remunerative. The professional guidance called for in this essay should reflect the rich variety of clinical practice infected physicians could safely engage in, ranging from internal medicine and psychiatry to pediatrics and neurology.

The right to confidentiality and antidiscrimination including reasonable accommodation for physicians should be viewed as a quid pro quo for the physician's good faith fulfillment of his or her special professional and ethical obligations. The physician has made a substantial human and financial investment in medical education. He is expected to provide treatment for HIV-infected patients despite the occupational risks. Given these special societal burdens on the physician, it is reasonable to protect his personal rights and professional livelihood. (1)See for example, Centers for Disease Control, "Recommendations for Prevention of HIV Transmission in Health-care Settings," Morbidty & Mortality Weekly Report 36:2S (1987), 3S-18S. (2)The Surgeon General, for example, has advocated HIV screening of all preoperative patients. Dennis L. Breo, "Dr. Koop Calls for AIDS Tests Before Surgery," American Medical News, 26 June 1987, 1, 21-25. (3)Keith Henry, Karen Willenbring and Kent Crossley, "Human Immunodeficiency Virus Antibody Testing: A Description of Practices and Policies at U.S. Infectious Disease Teaching Hospitals and Minnesota Hospitals," Journal of the American Medical Association 259:12 (1988), 1819-22. (4)Medical Staff News (August 1987), 2. (5)Council on Ethical and Judicial Affairs, American Medical Association, "Ethical Issues Involved in the Growing AIDS Crisis," Journal of the American Medical Association 259:9 (1988), 1360-61. (6)Council on Ethical and Judicial Affairs, "Ethical Issues." (7)George J. Annas, "Not Saints, But Healers: The Legal Duties of Health Care Professionals in the AIDS Epidemic," American Journal of Public Health 78:17 (1988), 844-49. (8)Centers for Disease Control, "Recommendations." (9)Department of Labor and Department of Health and Human Services, "Joint Advisory Notice: Protection against Occupational Exposures to Hepatitis B Virus (HBV) and Human Immunodeficiency Virus (HIV)," Federal Register 52:10 (1987), 41818-23. (10)J. Louise Gerberding and the university of California, San Francisco Task Force on AIDS, "Recommended Infection Control Policies for Patients With Human Immunodeficiency Virus Infection: An Update," New England Journal of Medicine 315:24 (1986), 1562-64. (11)"Chicago Patients Gain Curb on AIDS Carriers," New York Times, 22 September 1988, A34. (12)Centers for Disease Control, "Recommendations," 65-75. (13)James R. Allen, "Health Care Workers and the Risk of HIV Transmission," Hastings Center Report 18:2 (1988), Special Supplement, 2-5. (14)Deborah M. Barnes, "Health Care

Workers and AIDS: Questions Persist," Science 241 (1988), 161-62. (15)Centers for Disease Control, "Recommendations"; Gerald H. Friedland and Robert S. Klein, "Transmission of the Human Immunodeficiency Virus," New England Journal of Medicine 317:18 (1987), 1125-35. (16)Barbara G. Werner and George F. Grady, "Accidental Hepatitis B-Surface-Antigen-positive Inoculations: Use of e Antigen to Estimate Infectivity," Annals of Internal Medicine 97:3 (1982), 367-9. (17)Peter J.E. Cruse and Rosemary Foord, "The Epidemiology of Wound Infection," Surgical Clinics of North America 60:1 (1980), 27-40. (18)Michael D. Hagen, Klemens B. Meyer and Stephen G. Parker, "Routine Pre-Operative Screening for HIV: Does the Risk to the Surgeon Outweigh the Risk to the Patient?", Journal of the American Medical Association 259:9 (1988), 1357-59. (19)Hagen et al. "Routine Pre-operative Screening." (20)Friedland and Klein, "Transmission of the Human Immunodeficiency Virus." (21)See for example, Harnish v. Children's Hospital Medical Center, 387 Mass, 152, 439 N.E.2d 240 (1982). (22)Wikinson v. Vesey, 110 R.I. 606, 624 (1972). (23)Canterbury v. Spence, Cobbs v. Grant, 8 Cal. 3d 229 (1972). (24)Precourt v. Frederick, 395 Mass. 689, 694-95 (1985). (25)See Precourt v. Frederick, 395 Mass. 689, 697 (1985). The development of law as to which risks are too remote to require disclosure must await future cases. (26)Salis v. United States, 522 F. Supplement 989 (Md. and Pa. 1981). (27)See for example, Precourt v. Frederick. Henderson v. Milobsky, 595 F.2d 654 (D.C. Cir 1978). It is difficult to predict how the courts would respond in a case of an HIV-infected surgeon, since the risk to any single patient is highly remote. (28)See Mroczkowski v. Staub Clinic and Hospital, 732 P.2d 1255 (Hawaii App. 1987). (29)Keegan v. Holy Family Hospital, 95 Wn.2d 306, 622 P.2d 1246 (1980). (30)See A. Meisel, "The 'Exceptions' to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Decisionmaking," Wisconsin Law Review (1979), 413. (31) Harnish v. Children's Hospital Medical Center. (32)Ben Monroe's Reports, Winter Term 465 (Winter Term 1851). (33)See generally, Lawrence Gostin, William Curran, and Mary Clark, "The Case Against Compulsory Casefinding in Controlling AIDS: Testing, Screening and Reporting," American Journal of Law and Medicine 12:1 (1986), 7-53; Lawrence Gostin and William Curran, "AIDS Screening, Confidentiality and the Duty to Warn," American Journal of Public Health 77:3 (1987), 361-65. (34)See for example, Cross v. Huttenlocher, 440 A.2d 952 (Conn. 1981). (35)Ruffin v. Harris, No 80-00627835, New London, Conn., August 1983. (36)See Opithorne v. Framingham Union Hospital, 401 Mass. 860 (1988); Penn Tanker Company v. United States, 310 F. Supplement 613 (1970). (37)See for example, LaRoche v. United States 730 F.2d, 538 (8th Cir. 1984). (38)Jeffrey J. Sacks, "AIDS in a Surgeon," New England Journal of Medicine 313:16 (1985), 1017-18. (39)J.H. Morton, "One More Article About AIDS," Federation Bulletin 75:2 (1988), 62-64; Cf. R.J. Feinstein, "When Should the Sick Doctor Stop Caring for Patients, And Who Will Make That Decision?," Journal of the Florida Medical Association 73:1 (1986), 43-45. (40) Council on Ethical and Judicial Affairs, "Ethical Issues." (41)Centers for Disease Control, "Recommendations," 16S. (42) American Hospital Association, AIDS Task Force, AIDS and the Law: Responding to the Special Concerns of Hospitals (Chicago: AHA, 1987), 52-54; Massachusetts Hospital Association, AIDS: Administrative Reference Manual (1987), 64; Massachusetts Department of Public Health, Governor's Task Force on AIDS Policies and Recommendations (1987), 4-9. (43)Mary M. Devlin, "Ethical Issues in the AIDS Crisis: The HIV-Positive Practitioner," Journal of the American Medical Association 260:6 (1988), 790. (44)A related issue is presented by the case of a physician who is stuck with a needle from an HIV-infected patient. Should he refrain from doing invasive procedures for the time it takes to learn whether he seroconverted? In such a case the risk might fall below a reasonable range for concern (a small probability that the surgeon became positive multiplied by a small probability that he could transfer the infection). (45) Paul Cleary, et al., "Compulsory Premarital Screening for the Human Immunodeficiency Virus: Technical and Public Health Consideration," Journal of the American Medical Association 258:13 (1987), 1757-62; Lawrence Gostin, "Screening for AIDS: Efficacy, Cost, and Consequences," AIDS & Public Policy Journal 2:4 (1987), 14-24; Ronald Bayer, Carol Levine, Susan M. Wolf, "HIV Antibody Screening: An Ethical Framework for Evaluating Proposed Programs," Journal of the American Medical Association 256:13 (1986), 1768-74. (46)Many state supreme courts have held that disclosure of confidential health care information can result in liability; see for example, Alberts v. Devine, 395 Mass. 59 (1985). Moreover, several jurisdictions have now enacted statutes prohibiting unauthorized disclosure of an HIV test. See Larry Gostin and Andrew Ziegler, "A Review of AIDS-Related Legislative and Regulatory Policy in the United States," Law, Medicine and Health Care 15:1-2 (1987), 5-16. (47)Gostin and Curran, "AIDS Screening." (48)Frederic E. Shaw, Charles L. Barrett and Robert Hamm, "Lethal Outbreak of Hepatitis B in a Dental Practice," Journal of the American Medical Association 255:23 (1986), 3260-64; Robert J. Gerety, "Hepatitis B Transmission Between Dental or Medical Workers and Patients," Annals of Internal Medicine 95:2 (1981), 229. (49)W.W. Williams, "Guidelines for Infection Control in Hospital Personnel," Infection Control 4:4 (1983), 326-49; Ludwig A. Lettau et al., "Transmission of Hepatitis B with Resultant Restriction of Surgical Practice," Journal of the American Medical Association 255:7 (1986), 934-37. (50)See Schmerber v. California, 384 U.S. 757 (1966). (51)O'Connor v. Ortega, 107 S. Ct. 1492, 1497 (1987) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). (52)Glover v Eastern Nebraska Community Office of Mental Retardation, 686 F. Supp. 243 (D. Neb. 1988). (53)Grannis v. Board of Medical Examiners, 96 Cal. Rptr. 863, 870, 19 Cal. App. 3d 551, 561 (1971). (54)See Bratt v. International Business Machine Corporation, 785 F. 2d 352 (1st Cir. 1986). (55)See Gostin and Ziegler, "A Review of AIDS-Related Legislative and Regulatory Policy." (56)Diana Brahams, "Confidentiality for Doctors Who are HIV Positive," The Lancet, 21 November 1987, 1221-22. (57)Yeste v. Miami Herald Publishing Company, 451 So.2d 491 (Fla. App. 3 Dist. 1984). See Feinstein, "When Should the Sick Doctor Stop Caring for Patients." (58)Gostin and Curran, "AIDS Screening." (59)107 S. Ct. 1123 (1987). (60)Chalk v. Orange County Department of Education, 832 F.2d 1158 (9th Cir. 1987); Shuttleworth v. Broward County, 639 F. Supplement 654 (S.D. Fla. 1986). (61)134 Congressional Record S1738-1740, (daily ed. March 2, 1988) (statement of Sen. Harkin). (62)No. 87 C 6888, Consent Decree filed 21 February 1988, N.D. Illinois.
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