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The HIV-Infected Health Care Professional: Employment Policies and Public Health

Published online by Cambridge University Press:  29 April 2021

Extract

In July 1990, the federal Centers for Disease Control (CDC) reported the first case of possible transmission of the Human Immunodeficiency Virus (HIV) to a patient from an HIV-infected health care worker. The transmission may have occurred during an invasive dental procedure performed on her by a dentist who had AIDS, and in January 1991, the CDC reported possible HIV transmission during dental procedures to two other patients of the same dentist. Further, the recent revelation that a respected surgeon at a major medical center performed many surgical procedures while infected with HIV created substantial public concern. These cases call into question the prudence of allowing infected workers to continue performing medical and dental procedures that involve some risk, however slight, of transmitting HIV infection to patients. Whether HIV-infected workers should be excluded from practice of their profession because of a remote risk to patients relates directly to levels of tolerable risk in health care delivery and in social policy.

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Article
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Copyright © 1990 American Society of Law, Medicine & Ethics

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References

Centers for Disease Control, Possible Transmission of Human Immunodeficiency Virus to a Patient during an Invasive Dental Procedure, 39 Morbidity & Mortality Weekly. 489 (July 27, 1990).Google Scholar
Centers for Disease Control, Update: Transmission of HIV Infection during and Invasive Dental Procedure -Florida, 40 Morbidity & Mortality Weekly Rep. 21 (Jan. 18, 1991).Google Scholar
Barringer, , Doctor's AIDS Death Renews Debate on Who Should Know, N.Y. Times, Dec. 8, 1990, at 1, col. 5; Kobren, Hopkins to Alert Patients of Doctor Who Died of AIDS, Baltimore Sun, Dec. 2, 1990, at 1, col. 1.Google Scholar
Gerbert, Maguire, Hulley and Coates, Physicians and Acquired Immunodeficiency Syndrome: What Patients Think about Human Immunodeficiency Virus in Medical Practice, 262 J. Am. Med. A. 1969 (October 13, 1989). See also Marshall, , O'Keefe, , Fisher, et al., Patients' Fear of Contracting Acquired Immunodeficiency Syndrome from Physicians, 150 Archives Internal Med. 1501 (July 1990).Google Scholar
Gerbert, , at 1970.Google Scholar
Altman, , AIDS Testing of Doctors is Crux of Thorny Debate, N.Y. Times, Dec. 27, 1990, at 1; Breo, The “Slippery Slope”: Handling HIV-Infected Health Care Workers, 264 J. Am. Med. A. 1464 (Sept. 19, 1990); and Toufexis, When the Doctor Gets Infected, 137 Time 57 (Jan. 14, 1991).Google Scholar
Applebome, , Doctor in Texas with AIDS Virus Closes His Practice Amid a Furor, N.Y. Times, Nov. 1, 1987, at B8, col. 1.Google Scholar
Sullivan, , Should a Hospital Tell Patients if a Surgeon Has AIDS?, N.Y. Times, December 12, 1989, at B1, col. 1 (describing J.H. v. Medical Center at Princeton, No. L88–2550 (N.J. Super. Ct. Mercer Co. filed Oct. 1988)).Google Scholar
See, e.g., Doe v. Cook County Hosp., No. 87-C-6888, slip. op. (N.D. Ill. Feb. 24, 1988); and Doe v. Attorney Gen., Nos. 89–15933 & 89–16134, slip op. (N.D. Cal. August 25, 1989), appeal pending (9th Cir. Oct. 1990).Google Scholar
A dental group discovered, through insurance reimbursement records, that one of the group was being treated for HIV infection and sought to end the dentist's professional practice. Files in this case are sealed, but information may be obtained from the author.Google Scholar
Doe v. New York Hosp., No. GA-00035041487-DN, slip op. (New York City Comm'n on Human Rights Oct. 3, 1988), and Doe v. Montefiore Med. Center, No. 9K-E-D-88-132299, slip op. (N.Y. State Div. Human Rights Sept. 7, 1989); Leckelt v. Hospital Dist. No. 1, 714 F. Supp. 1377 (E.D. La. 1989), aff'd, 909 F.2d 820 (5th Cir. 1990); and Dominguez v. Miami Heart Institute (Dade Co. Fair Housing & App. Bd. 1988), reported in 2 AIDS Pol'y & L. 2 (Jan. 13, 1988).Google Scholar
Doe v. Westchester County Med. Center, Nos. 1B-E-D-86-116054 & 1B-P-D-87-117683, slipop. (N.Y. State Div. Human Rights Dec. 12, 1990), reprinted in N.Y.L.J., Dec. 26, 1990, at 30; and Kinsey v. Lancaster Gen. Hosp., No. 87-4860 (E.D. Pa. filed August 4, 1987).Google Scholar
In this case, a cardiac perfusionist's HIV status was determined through his insurance reimbursement requests, and his employer, a major medical center, demanded that he cease all professional practice. Further information is available from the author.Google Scholar
Kautz v. Humana Hosp., No. 04-86-2003, op. letter (United States Dep't Health & Human Serv. Office of Civil Rights July 31, 1989).Google Scholar
See Doe v. Washington Univ., No. 88-2509-C-4 (E.D. Mo. filed Nov. 30, 1988; removed to federal court, Dec. 29 1988).Google Scholar
Since HIV infection does not register on the widely-available HIV tests until six to eight weeks after the date of infection, many occupational health protocols in health care facilities include a requirement that an individual be tested immediately after the occupational exposure incident and at intervals thereafter. In this way, the hospital and state workers' compensation program may know with some certainty whether the employee was uninfected before the incident and whether HIV infection, if it develops, may be traced to an occupational injury. See Danzig, Compensability for AIDS under Workers' Compensation Laws, N.Y.L.J., Oct. 21, 1988, at 1.Google Scholar
See, e.g., Chalk v. District Court, 840 F.2d 701 (9th Cir. 1988) (teacher with AIDS reinstated after exclusion from the classroom due to fear of infection); and District 27 Community School Bd. v. Board of Educ., 502 N.Y.S.2d 325 (Sup. Ct. Queens Co. 1986) (ordering admission of children with HIV infection into public schools).Google Scholar
Another rationale for discrimination against HIV-infected health care professionals, as well as other professionals in safety- or health-related occupations, has emerged in the evidence that HIV infection may be accompanied by slight neuropsychological impairment, as measured by neuropsychological tests. The rapid development of neuropsychological impairment as a workplace issue is directly related to a 1987 study which concluded that there were cognitive deficiencies in a group of 16 HIV-infected but asymptomatic individuals. Grant, , Atkinson, Hesselink, et al., Evidence for Early Central Nervous System Involvement in the Acquired Immunodeficiency Syndrome and Other Human Immunodeficiency Virus Infections, 107 Annals Internal Med. 828 (Dec. 1987). Those findings, however, have been challenged by other studies with much larger population samples, and larger control groups. See, e.g., Tross, , Price, , Thaler, et al., Neuropsychological Characterization of the AIDS Dementia Complex: A Preliminary Report, 2 AIDS 88 (1988); and Selnes, , Miller, , McArthur, et al., HIV-1 Infection: No Evidence of Cognitive Decline During the Asymptomatic Stages, 40 Neurology 204 (Feb. 1990).Google Scholar
Bell, David, remarks to the Centers for Disease Control Conference on HIV-Infected Health Care Workers, Atlanta, August 13–14, 1990, reported in Letter from Fred Wolf, Chief of STD/AIDS Section, Colorado Department of Health to Margaret Skelly, Association of State and Territorial Health Officials (August 24, 1990).Google Scholar
Hagen, , Meyer, and Pauker, , Routine Preoperative Screening for HIV: Does the Risk to the Surgeon Outweigh the Risk to the Patient?, 259 J. Am. Med. A. 1357, 1358 (March 4, 1988); and Henderson, and Gerberding, , Prophylactic Zidovudine after Occupational Exposure to Human Immunodeficiency Virus: An Interim Analysis, 160 J. Infectious Diseases 321 (1989).Google ScholarPubMed
Hagen, , Routine Preoperative Screening for HIV, supra note 20, at 1358. See also Cruse and Foord, The Epidemiology of Wound Infection, 60 Surgical Clinics N. Am. 27 (1980).Google Scholar
Hagen, , Routine Preoperative Screening for HIV, at 1358.Google Scholar
See Gostin, , HIV-Infected Physicians and the Practice of Seriously Invasive Procedures, Hastings Center Rep. 32, 33 (Jan.-Feb. 1989) (on cumulative risk to patients from infected workers).Google Scholar
Cooper, Gold, MacLean, et al., Acute AIDS Retrovirus Infection: Definition of a Clinical Illness Associated with Seroconversion, Lancet 537 (1985).Google Scholar
See, e.g., Goldsmith, , CDC Ponders New HIV Guidelines, 264 J. Am. Med. A. 1079 (Sept. 5, 1990); Applebome, Dentist Dies of AIDS and a Florida Town Is Sad and Unsettled, N.Y. Times, September 8, 1990, at A1, col. 1; Johnson and Grant, The Dentist and the Patient: An AIDS Mystery, People 70 (Oct. 22, 1990); and Cimons, U.S. May Urge AIDS Tests for Medical Staffs, L.A. Times, Dec. 6, 1990, at 1. The director of the CDC has admitted that concern over the first Florida report of a possible transmission “prompted a review of existing guidelines.” Letter from William L. Roper to Sen. Edward Kennedy and Sen. Orrin Hatch (Oct. 11, 1990) (alerting the Senators to the CDC's review of guidelines for HIV-infected health care workers).Google Scholar
Mishu, Schaffner, Horan et al., A Surgeon with AIDS: Lack of Evidence for Transmission to Patients, 264 J. Am. Med. A. 467 (July 25, 1990).Google Scholar
CDC, HIV/AIDS Surveillance Rep. (Oct. 1990).Google Scholar
Sacks, AIDS in a Surgeon, 313 New Eng. J. Med. 1017 (Oct. 17, 1985).Google Scholar
Armstrong, , Miner, and Wolfe, , Investigation of a Health Care Worker with Symptomatic Human Immunodeficiency Virus Infection: An Epidemiologic Approach, 152 Military Med. 414 (August 1987).Google Scholar
Porter, Cruickshank, Gentle et al., Management of Patients Treated by a Surgeon with HIV Infection, Lancet 113 (Jan. 13, 1990).Google Scholar
Recommendations for Preventing Transmission of Infection with Human T-Lymphotropic Virus Type III/Lymphadenopathy-Associated Virus in the Workplace, 34 Morbidity & Mortality Weekly Rep. 681 (Nov. 15, 1985) [hereinafter 1985 Recommendations]; Recommendations for Preventing Transmission of Infection with Human T-Lymphotropic Virus Type III/Lymphadenopathy-Associated Virus During Invasive Procedures, 35 Morbidity & Mortality Weekly Rep. 221 (April 11, 1986) [hereinafter 1986 Recommendations]; and Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 Morbidity & Mortality Weekly Rep. (Supp. 2S 1987) [hereinafter 1987 Recommendations].Google Scholar
1985 Recommendations, at 7.Google Scholar
Although most opportunistic infections that occur in persons with advanced HIV infection are reactivations of previously-acquired organisms rather than newly-acquired infections, exceptions are tuberculosis, herpes zoster, and perhaps salmonellosis. Glatt, Chirgwin, and Landesman, Treatment of Infections Associated with Human Immunodeficiency Virus, 318 New Eng. J. Med. 1439 (June 2, 1988).Google Scholar
1986 Recommendations at 221.Google Scholar
1986 Recommendations at 223.Google Scholar
1987 Recommendations at 15S.Google Scholar
Id. at 16S.Google Scholar
American Hospital Association, Management of Human Immunodeficiency Virus in the Hospital (1989).Google Scholar
See Update: Human Immunodeficiency Virus Infctions in Health-Care Workers Exposed to Blood of Infected Patients, 36 Morbidity & Mortality Weekly Rep. 285 (1987); Oksenhendler, , Harzic, , Le Roux, et al., HIV Infection with Seroconversion after a Superficial Needlestick, 315 New Eng. J. Med. 582 (1986); and Neisson-Vernant, , Arfi, , Mathez, et al., Needlestick HIV Seroconversion in a Nurse, Lancet 814 (1986).Google ScholarPubMed
American Medical Association, Council on Ethical and Judicial Affairs, Ethical Issues Involved in the Growing AIDS Crisis, 259 J. Am. Med. A. 1360 (March 4, 1988).Google Scholar
Id. at 1361 (emphasis added).Google Scholar
American Medical Association, Statement on HIV Infected Physicians (Jan. 17, 1991).Google Scholar
See, e.g., Schwartz, S., Infections in Principles of Surgery 165 (1974); and Mastro, , Farley, , Elliot, et al., An Outbreak of Surgical-Wound Infections Due to Group A Streptococcus Carried on the Scalp, 323 New Eng. J. Med. 968 (Oct. 4, 1990).Google Scholar
See, e.g., American Medical Association, Council on Mental Health, The Sick Physician: Impairment by Psychiatric Disorders, Including Alcoholism and Drug Dependence, 223 J. Am. Med. A. 684 (1973); Shore, The Impaired Physician: Four Years After Probation, 248 J. Am. Med. A. 3127 (1982); and Casper, , Dilts, , Soter, et al., Establishment of the Colorado Physician Health Program with a Legislative Initiative, 260 J. Am. Med. A. 671 (1988). For problems with the AMA's treatment of urine drug screening of physicians, see infra note 131.Google Scholar
In 1987, in School Board v. Arline, 480 U.S. 273 (1987), the AMA had argued that the appropriate standard to apply to employment decisions about a person with an infectious condition was one of “reasonableness,” not “no identifiable risk.” If, according to the AMA, a person with an infectious condition presents an unreasonable risk to others and that risk cannot be eliminated by reasonable accommodation, the person's disability—the infectious condition—may be used as a justification for employment restrictions. The AMA further defined reasonableness of risk as consisting of considerations of likelihood of disease transmission; length of period of infectivity; nature of the possible transmission; and severity of outcome if transmission occurs. Brief for amicus curiae American Medical Association at 19–23.Google Scholar
After one year's experience with the AMA's 1988 policy, Nancy Dickey, past chairperson of the AMA's Council on Ethical and Judicial Affairs, the group that had prepared the policy, opined that a physician need not in all cases answer a patient's query about whether the physician has been tested for HIV. A positive answer to the question, she admitted, could result in “significant economic damage” to the physician, and according to Dickey, “physicians have a right to confidentiality in matters that are not pertinent to their practice.” She did not explain the circumstances in which the physician's HIV infection would not be “pertinent,” although under the AMA “no risk” standard, that infection would invariably be very “pertinent.” Dickey, , Physicians and Acquired Immunodeficiency Syndrome: A Reply to Patients, 262 J. Am. Med. A. 2002 (Oct. 13, 1989).Google ScholarPubMed
American College of Physicians and the Infectious Diseases Society of America, The Acquired Immunodeficiency Syndrome and Infection with the Human Immunodeficiency Virus, 108 Annals Internal Med. 460, 465 (March 1988).Google Scholar
Committee on Ethics, American College of Obstetricians and Gynecologists, Human Immunodeficiency Virus Infection: Physicians' Responsibilities, 75 Obstetrics & Gynecology 1043, 1045 (June 1990).Google Scholar
Association for Practitioners in Infection Control and the Society of Hospital Epidemiologists of America, The HIV-Infected Healthcare Worker, 11 Infection Control & Hosp. Epidemiology 647 (1990).Google Scholar
Letter from Foster, Laurence R. CSTE, to Jacquelyn A. Polder, CDC, Hospital Infections Program (Sept. 6, 1990).Google Scholar
Letter from the American Public Health Association to William L. Roper, Director, CDC (Nov. 16, 1990). The APHA letter was signed also by the American Academy of Pediatrics, American Nurses Association, the American College of Preventive Medicine, and the Association of State and Territorial Health Officials, among others.Google Scholar
GMC Warns Doctors Infected with HIV or Suffering from AIDS, 295 Brit. Med. J. 1500 (1987). See also Lohr, A British Policy on Hemophiliacs and Doctors Infected with AIDS, N.Y. Times, Nov. 20, 1987, at A23, col. 3.Google Scholar
In New York City, for example, the Health and Hospitals Corporation (HHC) adopted a policy in 1987 favoring the full employability of all HIV-infected health care professionals. Memorandum from Jo Ivey Boufford, Director, New York City Health and Hospitals Corporation, Policy Regarding Employees Infected or Presumed to be Infected with Human Immunodeficiency Virus (June 1987). Other institutions adopted much more restrictive policies. Georgetown University Hospital in March 1988 adopted a policy forbidding employees with AIDS from any patient care, without exception. Memorandum from John Stapleton, Medical Director, Georgetown University Hospital (March 2, 1988). Similarly, the Board of Commissioners of Cook County Hospital in 1987 adopted a policy requiring that employees with HIV infection or AIDS reveal their medical condition to the employee health service and submit to regular physical examinations to determine appropriate work assignments and restrictions. Cook County Hospital Manual, Policy No. 07-05-06, Monitoring Employees with AIDS and Related Conditions (Feb. 15, 1987; revised May 11, 1987 and Feb. 6, 1989).Google Scholar
Given the remote risk of HIV transmission, even during highly invasive procedures, consistent application of this informed consent approach would require disclosure of all risks equivalent to or greater than that of HIV transmission. Yet this would be impossible in professional practice, since it would require health professionals to spend the vast majority of their time counseling about risks rather than providing care. Indeed, informed consent doctrine does not require disclosure of all risks, but only of those risks deemed “significant” or “material.” See Appelbaum, Lidz and Meisel, Informed Consent: Legal Theory and Clinical Practice 50–4 (1987). See, e.g., Precourt v. Frederick, 395 Mass. 689 (1985) (no duty to inform patient of serious drug side-effect if risk of harm was “so remote as to be negligible,” even if the harm did occur); and Pardy v. United States, 783 F.2d 710 (7th Cir. 1986) (risk of severe complication of medical procedure ranging from 1 in 14,000 to 1 in 40,000 held not significant enough to require patient's informed consent to risk). Similarly, in one English case, a court barred the publication of a newspaper article identifying two physicians with AIDS, finding that revelation of the physicians' diagnosis was not in the public interest, since the risk of transmission from them to patients was “a very small theoretical risk … that was, in practice, removed by counseling.” X v. Y, 1988 All E.R. 648, 656 (Q.B.).Google Scholar
California Medical Association, HIV Positive Health Care Workers (revised June 1990).Google Scholar
In the context of a general policy on preventing HIV transmission during surgical procedures, the American Academy of Orthopaedic Surgeons has endorsed “routine, voluntary confidential HIV testing” of health care workers, in order to gauge the magnitude of risk of transmission to those workers. American Academy of Orthopaedic Surgeons, Recommendations for the Prevention of HIV Transmission in the Practice of Orthopaedic Surgery (1989). the report does not specify, however, a recommended approach to workers found to be infected.Google Scholar
State Medical Board of Ohio, Report of the AIDS Committee (Oct. 15, 1987; amended March 10, 1988).Google Scholar
The Ohio Medical Board has apparently received only one self-report of HIV infection from an infected physician, although it has learned of approximately four other infected Ohio physicians. Interview conducted by Gillian Stern, Columbia University School of Public Health, with Loren Lebow, Ohio Medical Board (Oct. 1990).Google Scholar
Doe v. Westchester County Medical Center, supra note 12.Google Scholar
Testimony of Gary Wormser, M.D., Doe v. Westchester County Med. Center, transcript p. 1724–5 (N.Y. State Div. Human Rights May 19, 1988).Google Scholar
N.Y. Pub. Health Law § 2786 (1) (1990).Google Scholar
N.Y. Comp. Codes R. & Regs., tit. 10, 63.9 (1989).Google Scholar
New York State Dep't of Health, Policy Statement and Guidelines: Health Care Facilities and HIV-Infected Medical Personnel (Jan. 18, 1991), reported in Altman, New York Won't Tell Doctors with AIDS to Inform Patients, N.Y. Times, Jan. 19, 1991, at p. 1., col. 2. See also Letter from Nicholas Rango, New York State Department of Health AIDS Institute, to James Curran, Division of AIDS/HIV, CDC (Sept. 24, 1990), reprinted in 5 AIDS Pol'y & L. 6–10 (Nov. 28, 1990).Google Scholar
AIDS and HIV infection have been interpreted as disabilities under federal disability discrimination law. See, e.g., Chalk v. District Court, 840 F.2d 201 (9th Cir. 1988); and Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376 (C.D. Cal. 1987). See also Note, Asymptomatic Infection with the AIDS Virus as a Handicap under the Rehabilitation Act of 1973, 88 Colum. L. Rev. 563 (1988).Google Scholar
29 U.S.C. § 794 (1990).Google Scholar
480 U.S. 273 (1987).Google Scholar
Civil Rights Restoration Act, Pub. L. 100–259, 134 Cong. Rec. H. 587–8 (March 2, 1988); 134 Cong. Rec. S1740 (March 2, 1988) (remarks of Senator Harkin); and 134 Cong. Rec. E487 (March 2, 1988) (remarks of Congressman Hoyer). The Civil Rights Restoration Act incorporated the “significant risk” standard into the Rehabilitation Act of 1973. 29 U.S.C. 794 (1990).Google Scholar
Americans with Disabilities Act, Pub. L. 101–336, 104 Stat. 327 (1990) [hereinafter ADA]. While Arline had defined “significant risk” as applying specifically to persons with infectious conditions, the Americans with Disabilities Act extended that standard to persons with all types of disabilities. See ADA, §§ 101 (2), 103 (b).Google Scholar
In 1974, Congress had expanded the definition of “handicapped individual” to include persons who have a record of handicap, or who are simply perceived as having a handicap. 29 U.S.C. 706(7)(b) (1990). The Arline majority perceived this as a general intent to expand coverage of the Act to effect its purposes. 480 U.S. at 277–9.Google Scholar
480 U.S. at 284–5.Google Scholar
The ADA's definition of “reasonable accommodation” includes “job restructuring, reassignment … [and] acquisition or modification of equipment or devices.” ADA, § 101 (9) (b). In the context of HIV-related discrimination, the issue of “least restrictive means” to reduce risk was addressed most clearly in Martinez v. School Bd., 861 F.2d 1502 (11th Cir. 1988), in which the circuit court reversed a district court's requirement that a child with HIV infection be isolated in a protective, windowed “box” within a classroom. In reversing, the circuit court indicated that such a “box” would not be the “least restrictive environment” designed to reduce the risk to other schoolchildren.Google Scholar
480 U.S. at 288.Google Scholar
See supra note 47.Google Scholar
Brief for amicus curiae AMA at 19.Google Scholar
Id. at 277. See 123 Cong. Rec. 13515 (1977) (statement of Sen. Humphrey).Google Scholar
The legislative findings accompanying the ADA explicitly noted the economic benefits to ensuring that persons with disabilities have gainful employment. Among those were “economic self-sufficiency” for persons with disabilities, and the prevention of “billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” ADA, § (2)(a)(8) & (9). Further, the Arline Court cited as the basis of its “significant risk” standard a decision explicitly applying a cost-benefit, market analysis in determining whether an applicant with severe mental illness could be admitted to medical school. 480 U.S. at 285, n. 14, citing Doe v. New York Univ., 666 F.2d 761 (2d Cir. 1981) (establishing a “significant risk of harm” test for the applicant's admission to medical school, but interpreting that standard in light of the large number of highly qualified applicants competing for limited spaces, and denying admission to the qualified applicant).Google Scholar
See, e.g., Strathie v. Department of Transp., 716 F.2d 227 (3d Cir. 1983) (decision turned on whether equally appreciable or greater risks from other disabilities had been ignored in the drafting of a state regulation prohibiting persons with hearing aids from obtaining licenses to drive school buses).Google Scholar
H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 56 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, Supp. 6, 303, 338 (Sept. 1990). See also H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 45 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, Supp. 6, at 446–7 (Sept. 1990).Google Scholar
H.R. Rep. 485, pt. 3, at 45–46.Google Scholar
H.R. Rep. 485, pt. 2, at 56–7.Google Scholar
Supra note 12.Google Scholar
686 F. Supp. 243 (D. Neb. 1988), aff'd, 867 F.2d 461 (8th Cir. 1989).Google Scholar
Previous decisions on mentally retarded children and adults had indicated that fear of infection with hepatitis B virus (HBV) would not justify the exclusion of the HBV-infected from school programs and activities. See New York State Ass'n for Retarded Children v. Carey, 466 F. Supp. 479 (E.D.N.Y. 1978), 466 F. Supp. 487 (E.D.N.Y. 1979), aff'd, 612 F.2d 644 (2d Cir. 1979) (order preventing the exclusion of HBV-infected mentally retarded children from public schools); and Kohl v. Woodhaven Learning Center, 672 F. Supp. 1221 (W.D. Mo. 1987) (ordering admission to educational facility of HBV-infected mentally retarded adult), aff'd in part, rev'd in part, 865 F.2d 930 (8th Cir. 1989).Google Scholar
714 F. Supp. 1377 (E.D. La. 1989), aff'd, 909 F.2d 820 (5th Cir. 1990).Google Scholar
909 F.2d at 831.Google Scholar
714 F. Supp. at 1382.Google Scholar
714 F. Supp. at 1390.Google Scholar
909 F.2d at 828. The district court opinion similarly found that hospitals had special cause to monitor the health status of persons “in high risk groups.” 414 F. Supp. at 1387.Google Scholar
1987 Recommendations at 7S. See also Centers for Disease Control, Update: Universal Precautions for Prevention of Transmission of HIV, HBV and Other Bloodborne Pathogens in Health-Care Settings, 37 Morbidity & Mortality Weekly Rep. 377, 378 (June 24, 1988).Google Scholar
CDC, 1987 Recommendations at 13S.Google Scholar
1986 Recommendations at 223.Google Scholar
See, e.g., Wolinsky, Imagawa, Lee, et al., Human Immunodeficiency Virus Type 1 Infection in Homosexual Men Who Remain Seronegative for Prolonged Periods, 320 New Eng. J. Med. 1458 (June 1, 1989) (reporting a false negative rate of 23 percent among a selected sample); and Ranki, , Krohn, , Allain, , et al., Long Latency Precedes Overt Seroconversion in Sexually Transmitted Human Immunodeficiency Virus Infection, Lancet 589 (Sept. 12, 1987) (reporting 20 percent rate of false negatives among a selected sample).Google Scholar
See Handsfield, , Cummings, and Swenson, , Prevalence of Antibody to Human Immunodeficiency Virus and Hepatitis B Surface Antigen in Blood Samples Submitted to a Hospital Laboratory: Implications for Handling Specimens, 258 J. Am. Med. A. 3395, 3397 (Dec. 18, 1987).Google ScholarPubMed
Centers for Disease Control, Protection Against Viral Hepatitis, 39 Morbidity & Mortality Weekly Rep., Supp. 2, at 8(Feb. 9, 1990) [hereinafter Viral Hepatitis].Google Scholar
Centers for Disease Control, Guidelines for Preventio.n of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public Safety Workers, 38 Morbidity & Mortality Weekly Rep., Supp. 6, at 5–6 (June 23, 1989) [hereinafter 1989 Guidelines].Google Scholar
Id. See also Palmer, , Barash, , King, , and Neil, , Hepatitis Among Hospital Employees, 138 Western J. Med. 519 (1983).Google ScholarPubMed
See supra notes 20 and 21.Google Scholar
1989 Guidelines at 5; Department of Labor and Department of Health and Human Services, Protection Against Occupational Exposure to Hepatitis B Virus and Human Immunodeficiency Virus 52 Fed. Reg. 41818 (Oct. 30, 1987).Google Scholar
State health codes and administrative regulations often contain requirements that regulated health care institutions evaluate each health care worker at least annually for ability to work without danger to patients. These codes often require annual tuberculosis (and in a few cases, rubella vaccination) screening for health care workers, but do not require HBV screening. See, e.g., N.Y. Comp. Codes. R. & Regs. tit. 10, § 405. 3 (b)(10) (1989); Mass. Regs. Code tit. § 105, § 30.626 (f) and 150.002 (d) (6) (1990); Mich. Admin. Code r. 325.20402 (1990); and Ohio Admin. Code § 3701-17-07 (d) (1990).Google Scholar
Centers for Disease Control, Guideline for Infection Control in Hospital Personnel, Infection Control 334 (1983); 1989 Guidelines at 15.Google Scholar
See APIC/SHEA, The HIV-Infected Healthcare Worker, supra note 51, at 649.Google Scholar
Ahtone and Goodman, Hepatitis B and Dental Personnel, 106 J. Am. Dental A. 219 (Feb. 1983). See also Williams, Pattison and Berquist, Dental Infection with Hepatitis B, 232 J. Am. Med. A. 1231 (June 23, 1975) (study of patients of HBV-infected dentists using barrier precautions found no patient infections).Google Scholar
Acute Hepatitis B Associated with Gynecological Surgery, Lancet 1, 5 (Jan. 5, 1980); Carl, , Francis, , Blakey, and Maynard, , Interruption of Hepatitis B Transmission by Modification of a Gynaecologist's Surgical Technique, Lancet 731 (March 27, 1982).Google Scholar
See Galambos, , Transmission of Hepatitis B from Providers to Patients: How Big is the Risk?, Hepatology 320 (1986) (estimating in 1986 33,600 physicians and 16,500 dentists with HBV infection in unrestricted patient practice in the United States).Google Scholar
LaBrecque, , Muhs, , Lutwick, et al., The Risk of Hepatitis B Transmission from Health Care Workers to Patients in a Hospital Setting—A Prospective Study, 6 Hepatology 205, 207 (1986). See also Carl, Interruption of Hepatitis B, supra note 106 at 732–3. However, for health professionals with “acute HBV infection”—that is, who are clinically ill due to symptoms of HBV infection, it has been recommended that they refrain from patient contact, on the assumption that the acute stage of illness will soon pass and they will be rendered noninfectious. At that point, they are returned to patient duties. See Alter and Chalmers, The HBsAg Worker Revisited, Hepatology 467, 469 (1981).Google Scholar
See, e.g., Galambos, supra note 107, at 321–2.Google Scholar
Alter and Chalmers, supra note 108, at 468.Google Scholar
Alter, , Chalmers, , Freeman, et al., Health-Care Workers Positive for Hepatitis B Surface Antigen: Are Their Contacts at Risk?, 292 New Eng. J. Med. 454, 456 (Feb. 27, 1975).Google ScholarPubMed
Mosley, , The HBV Carrier—A New Kind of Leper?, 292 New Eng. J. Med. 477, 478 (1975); Ahtone and Goodman, supra note 105, at 220.Google ScholarPubMed
Alter, , Chalmers, , and Freeman, , supra note 112, at 456.Google Scholar
Viral Hepatitis, at 14–6.Google Scholar
See Rhame, , The HIV-Infected Surgeon, 264 J. Am. Med. A. 507 (July 25, 1990) (estimating the risk of transmission from a surgeon with HIV infection to be between one per 100,000 to one per 1,000,000 operations).Google ScholarPubMed
See, e.g., Weinberg, and Murray, , Coping With AIDS: The Special Problems of New York City, 317 New Eng. J. Med. 1469 (Dec. 3, 1987) (describing the health care worker shortage in New York City); and Cotton, The Impact of AIDS on the Medical Care System, 260 J. Am. Med. A. 519 (July 22, 1988).Google ScholarPubMed
Altman, , AIDS-Infected Doctors and Dentists Are Urged to Warn Patients or Quit, N.Y. Times, Jan. 18, 1991, at A18, col. 4. Such a proposal assumes, possibly incorrectly. that infection control mishaps involving a physician and patient who are both HIV-infected would have no adverse consequences (for example, the hastening of the progress of HIV infection in the exposed party).Google Scholar
Hagen, , supra note 20.Google Scholar
See Shewell, , The Surgeon and the HIV-Infected Patient (letter), 264 J. Am. Med. A. 1407 (Sept. 19, 1990). Shewell expresses the “double bind” of the conscientious health care provider, who is required by law to treat HIV-infected patients, but who simultaneously fears the occupational effects of a seroconversion that may occur while rendering that treatment. See also Ratzan and Schneiderman, AIDS, Autopsies, and Abandonment, 260 J. Am. Med. A. 3466 (1988); Gerbert, Maguire, , Badner, et al., Why Fear Persists: Health Care Professionals and AIDS, 260 J. Am. Med. A. 3481 (1988); and Wallack, AIDS Anxiety Among Health Care Professionals, 40 Hosp. & Community Psychiatry 507 (May 1989).Google ScholarPubMed
Purvis, , AIDS-Shy Residents Avoid Training at NYC Hospitals, N.Y. Doctor, June 27, 1988, at 8; and Cooke, and Sande, , The HIV Epidemic and Training in Internal Medicine, 321 New Eng. J. Med. 1334 (Nov. 9, 1989).Google Scholar
As one physician wrote in 1988: “Fear of loss of one's practice [due to employment policies restricting the practice of physicians with HIV infection] ranks a close second in the minds of many care givers to the fear of developing [AIDS] and must contribute to many physicians' reluctance to care for HIV-positive patients.” Updegrove, , Ethical Issues in the AIDS Crisis: The HIV-Positive Practitioner (letter), 260 J. Am. Med. A. 790 (Aug. 12, 1988).Google ScholarPubMed
Consistent application of a policy restricting the duties of HIV-infected health care professionals arguably should also be extended to those HIV-negative workers who have experienced an occupational exposure to the blood or body fluids of an HIV-infected patient. The manpower costs of such a practice, however, would be prohibitive. See Letter from Robert S. Klein, Montefiore Medical Center, to David Bell, Centers for Disease Control (Oct. 9, 1990) (discussing possible revisions to CDC guidelines on HIV-infected health workers); and Gellin and Rogers, Branding Doctors with HIV, N.Y. Times, Jan. 3, 1991, at 17, col. 1.Google Scholar
If this seems a fanciful scenario, one should recall Leckelt, in which, faced with his employer's demand for the results of an HIV test he had just taken, Leckelt declined to go back to the testing site for his results, fearful of the results, of their effect on him, and of the consequences to his employment if the results were positive. Brief for amicus curiae American Public Health Ass'n at 2, 13, Leckelt v. Hospital Dist., 909 F.2d 820 (5th Cir. 1990).Google Scholar
716 F.2d 227 (3d Cir. 1983), supra note 79.Google Scholar
See Handsfield, , Cummings, , and Swenson, , The Labeling of Specimens as Infectious (letter), 259 J. Am. Med. A. 1807 (March 25, 1988) (indicating concern for pathogens other than HIV and HBV, including cytomegalovirus, Epstein-Barr virus, human T-cell lymphotropic viruses, and papovavirus, among others).Google Scholar
See supra note 46.Google Scholar
Gostin, , Physicians and the Acquired Immunodeficiency Syndrome, 264 J. Am. Med. A. 452 (July 25, 1990) (describing the AMA policy on HIV-infected physicians as a “zero-tolerance” approach, and pointing out that “a court will take the [AMA] at its word and hold HIV-infected physicians and their employing hospitals liable for exposing patients to any risk of exposure”).Google Scholar
Before resorting to recommendations of exclusion of infected workers as a part of their duty to provide less restrictive alternatives, government agencies, professional organizations, and individual institutions therefore should be expected to have examined carefully alternative techniques and technologies and to have concluded that such alternations are not sufficient to reduce the risk of blood-to-blood contact between workers and patients.Google Scholar
Decisions about restrictions on individual health care workers therefore would be more rationally based on the frequency of preventable infection control mishaps involving an individual worker (and on professional competence and patient outcomes) than on the individual worker's bloodborne infections. Such an approach, unlike categorical restrictions on HIV-infected health care workers, allows one to distinguish between the extremely skilled, HIV-infected surgeon with scrupulous infection control technique (whom one would wish to continue full practice), and the uninfected surgeon of moderate ability with a poor infection control record (whom the rational patient would wish to be removed from practice).Google Scholar
The AMA General Counsel's Office has adopted a similar position on drug testing of physicians. In opposing urine drug testing, the AMA General Counsel indicated that although drug use could cause physician impairment, it would not necessarily cause that impairment. According to the AMA statement, therefore, “a test that is positive for drug use may be falsely positive for drug impairment.” Orentlicher, , Drug Testing of Physicians, 264 J. Am. Med. A. 1039 (August 22/29, 1990). In the same way, a positive result on an HIV test may be falsely positive for poor infection control technique, and an exclusionary employment policy based on HIV infection would exclude the extremely skilled, HIV-infected health professional with scrupulous infection control technique, whose continued practice would only benefit patients and society.Google ScholarPubMed