Hostname: page-component-586b7cd67f-tf8b9 Total loading time: 0 Render date: 2024-11-25T16:36:45.207Z Has data issue: false hasContentIssue false

The HIV-Infected Health Care Professional: Public Policy, Discrimination, and Patient Safety

Published online by Cambridge University Press:  29 April 2021

Extract

Three years ago, I was invited by the Hastings Center to prepare a position paper asserting that patients had the right to be protected against exposure to HIV in health care settings. Believing, rather naively I fear, that I was being asked to defend the rights of patients, I happily accepted. My paper examined such areas as the patient's right to be informed if her surgeon was HIV-infected, along with the prevailing professional duty of health care providers to protect patients from avoidable harms.

When I arrived at the debate forum, I looked up to see my friends—humane public health officials, civil libertarians, and AIDS activists—on the other side of the table. It dawned on me that the debate was not about patients’ rights at all, but about restricting the employment rights of HIV-infected health care professionals. Still, I argued at that time, and have continued to assert in the Centers for Disease Control review process, that HIV-infected health care professionals ought to refrain from the practice of seriously invasive procedures.

Type
Viewpoint
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Gostin, L., “HIV-Infected Physicians and the Practice of Seriously Invasive Procedures,” Hastings Cen. Rep. 1989; 19(1):3239.Google Scholar
Centers for Disease Control Consultants Meeting, Prevention of Transmission of Bloodborne Pathogens to Patients During Invasive Procedures, August 13–14, 1990, Atlanta.Google Scholar
Nesland, V., Matthew, G., Curran, J., “The Role of CDC in the Development of AIDS Recommendations,” Law, Med. & Health Care 1987, 15:7379.Google Scholar
Gostin, L., “Physicians and AIDS” (letter), JAMA 1990; 264:452453.Google Scholar
Centers for Disease Control, “Possible Transmission of Human Immunodeficiency Virus to a Patient during an Invasive Dental Procedure,” MMWR 1990, 39:489493.Google Scholar
Altman, L., “U.S. Health Officials Link Dentist with Two More AIDS Infections,” N.Y. Times, Jan. 13, 1991, p. 17 (at the time of writing, these cases were not officially confirmed by the CDC).Google Scholar
Altman, L., “AIDS-Infected Doctors and Dentists Are Urged to Warn Patients or Quit,” N.Y. Times, Jan. 18, 1991, A-18.Google Scholar
Kobren, G., “Hopkins Seeks Law Forcing Disclosure,” L.A. Times, Dec. 6, 1990, 1A; Cimons, M., “U.S. ‘Leaning’ toward Plan to Test Surgeons for AIDS: Carriers Would Be Barred from Surgery,” L.A. Times, Dec. 6, 1990, 1A; Kobren, G., Marbella, J., “Hopkins to Alert Patients of Doctor Who Died of AIDS,” The Sun (Baltimore), Dec. 2, 1990.Google Scholar
Mandelbrot, D.A., Smythe, W.R., Norman, S.A., Martin, S.C., Arnold, R.M., Talbot, G.H., Stolley, P.D., “A survey of Exposure, Practices, and Recommendations of Surgeons in the Care of Patients with Human Immunodeficiency Virus,” Surgery, Gynecology & Obstetrics. 1990, 171:99106.Google Scholar
Lewis, C.E., Montgomery, K, “The HIV Testing Policies of U.S. Hospitals,” JAMA 1990, 264:27642767. See Brandt, A., Cleary, P., Gostin, L., “Routine hospital testing for HIV: Health policy considerations,” in Gostin, L. (ed.) AIDS and the Health Care System, 125–142, New Haven, Yale University Press, 1990.Google Scholar
See Generally, Rhame, F.S., “The HIV-Infected Surgeon,” JAMA 1990, 264:507508; Goldsmith, M.F., “CDC Ponders New HIV Guidelines,” JAMA 1990, 264: 1079; Peterson, L., “AIDS: The Ethical Dilemma for Surgeons,” Law, Med. & Health Care 1989, 17:139–144.CrossRefGoogle Scholar
Altman, L., “AIDS-Infected Doctors and Dentists Are Urged to Warn Patients or Quit,” N.Y. Times, Jan. 18, 1991, A-18.Google Scholar
Marshall, P.A., O'Keefe, J.P., Fisher, S.G., Caruso, A.J., Sardukowski, J., “Patients' fear of contracting Acquired Immunodeficiency Syndrome from patients,” Arch. Intern. Med. 1990, 150:15011506.Google Scholar
Gerbert, B., Maguire, B.T., Hulley, S.B., Coates, T.J., “Physicians and Acquired Immunodeficiency Syndrome: What Patients Think about Human Immunodeficiency Virus in Medical Practice,” JAMA 1989; 262:19621972; Gerbert, B., Maguire, B.T., Spitzer, S., “Patient's Attitudes toward Dentistry and AIDS,” J. Am. Dental Assn. 1989, November: 16S–21S.Google Scholar
See, St. Louis, M.E., Rauch, K.J., Petersen, L.R., et al., “Seroprevalence Rates of Human Immunodeficiency Virus Infection at Sentinel Hospitals in the United States,” NEJM 1990, 323: 213218.Google Scholar
Frederick, Precourt v. 595 F.2d 654 (D.C. Cir. 1978).Google Scholar
See Williams, W.W., “Guideline for Infection Control in Hospital Personnel,” Infection Control, 1983, 4 (Suppl)8 326349, reprinted by the U.S. DHHS, CDC.Google Scholar
Gostin, L., Porter, L., Sandomire, H., The AIDS Litigation Project: A National Review of Court and Human Rights Commission Decisions, Washington, D.C.: U.S. Government Printing Office, 1990.Google ScholarPubMed
Doe v. Washington University Sch., Mo. Cir. Ct., St. Louis; AIDS Litigation Rptr. 12/23/88 and 2/10/89.Google Scholar
Laredo v. SW Community Health Service, U.S.D.C. N.M. August 1987.Google Scholar
Rhodes v. Charter Hospital, S.D. Miss., AIDS Lit. Rptr. 03/10/89; J.V.A. Medical Center, NYS Division on Human Rights, 1988.Google Scholar
Mark Bible v. Mother Francis Hospital, U.S.D.C. E.D. Tex., 1987.Google Scholar
Gordon v. Blanchard, Super Ct., LA Cty, AIDS Lt. Rptr. 05/13/88.Google Scholar
Hartford Hospital Nurses v. Hartford Hospital, Super. Ct. Hartford, Conn, 6/19/87; Dept. of Health and Human Services v. Charlotte Memorial Hospital, DHHS No. 64-84-3096, 8/5/86.Google Scholar
Altman, L., “AIDS Testing of Doctors is Crux of Thorny Debate,” N.Y. Times, Dec. 27, 1990, A1, A17.Google Scholar
Armstrong, F.P., Miner, J.C., Wolfe, W.H., “Investigation of a Health Care Worker with Symptomatic Human Immunodeficiency Virus Infection: An Epidemiologic Approach,” Military Medicine 1987, 152:414418; Sacks, J.J., “AIDS in a surgeon” (letter) NEJM 1986, 313:1017–18; Klein, R., Phelan, J., Freeman, K. et al, “Low Occupational Risk of Human Immunodeficiency Virus Infection among Dental Professionals,” NEJM 1988, 318:86–90; Mishu, B., Schaffner, W., Horan, J.M., Wood, L.H., Hutcheson, R.H., McNabb, P.C., “A Surgeon with AIDS: Lack of Evidence of Transmission to Patients,” JAMA 1990, 264:467–470.Google Scholar
Glover v. Eastern Nebraska Community Office of Mental Retardation, 686 F. Supp. 243 (D. Neb. 1988), aff'd 867 F.2d 461 (8th Cir. 1989). In any event, patients cannot expect a 100% risk free environment. They can reasonably expect only that risks are kept as low as reasonably can be achieved, consistent with good care and protection of human rights.Google Scholar
The effect on high prevalence states such as New York could be very serious. See letter from Rango, N., Burke, G., Barnes, M., Chiarello, L. (N.Y.S. AIDS Institute) to James Curran (CDC) Sept. 24, 1990.Google Scholar
Nuland, V. et al, op. cit.Google Scholar
Centers for Disease Control, “Recommendations for Prevention of HIV Transmission in Health Care Settings,” MMWR 1987, 36:2S:3S18S.Google Scholar
Bell, D., “HIV Infection in Health Care Workers: Occupational Risk and Prevention,” in Gostin, L. (ed.) AIDS and the Health Care System, 1524, Yale University Press: New Haven, 1990.Google Scholar
Cruse, P., Ford, R., “The Epidemiology of Wound Infection,” Surgical Clinics of North America 1980, 60:2740; Hagen, M.D., Meyer, K., Pauker, S., “Routine Pre-Operative Screening for HIV: Does the Risk to the Surgeon Outweigh the Risk to the Patient?” JAMA 1988, 259:1357–59; Klein, R., Phelan, J., Freeman, K. et al, op. cit.Google Scholar
Gostin, L., “HIV-Infected Physicians and the Practice of Seriously Invasive Procedures,” Hastings Cen. Rep. 1989, 19:3239.Google Scholar
See note 27 supra.Google Scholar
See note 38 intra.Google Scholar
CDC, “Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public Safety Workers,MMWR 1989, 38(5–6): 137.Google Scholar
Lettau, L.A., Smith, J.D., Williams, D., Lundquist, W.D., Cruz, F., Sikes, K., Hadler, S.C., “Transmission of Hepatitis B with Resultant Restriction of Surgical Practice,” JAMA 1986, 255:934937, Hadler, S.C., Sorley, D.L., Acree, K.H., Webster, H.M., Schable, C.A., Francis, D.P., Maynard, J.E., “An Outbreak of Hepatitis B in a Dental Practice,” Annals of Internal Medicine 1981, 95:133–138.Google Scholar
Altman, L., “AIDS Testing of Doctors is Crux of Thorny Debate,” N.Y. Times, Dec. 27, 1989, A-1, A-17 (American Public Health Association, NYS Commissioner for Public Health, David Rodgers, Vice Chair, National Commission on AIDS).Google Scholar
See Association for Practitioners for Infection Control, Position paper: “The HIV-Infected Health Care Worker,” APIC 1990, 18:371381 (workers with any infection carried in the blood should avoid procedures epidemiologically linked to transmission).Google Scholar
Cloren, M., “A Call for Mandatory HIV Testing and Restriction of Certain Health Care Professionals,” St. Louis Public L. Rev. 1990, IX:421438.Google Scholar
See Field, M., “Testing for AIDS: Uses and Abuses,” Am. J. L. & Med. 1990 XVI: 33106.Google Scholar
Cleary, P., Barry, M., Mayer, K., Brandt, A., Gostin, L., Fineberg, H., et al., “Compulsory Premarital Screening for the Human Immunodeficiency Virus: Technical and Public Health Considerations,” JAMA 1987, 258:1757–62; Gostin, L., Cleary, P., Mayer, K., Brandt, A., Chittenden, E., “Screening Immigrants and International Travelers for Human Immunodeficiency Virus,” NEJM 1990:1743–46.Google Scholar
CDC, “Public Health Service Guidelines for Counseling and Antibody Testing to Prevent HIV Infection and AIDS,” MMWR 1987, 36:509515.Google Scholar
Gostin, L., “Public Health Strategies for Confronting AIDS: Legislative and Regulatory Policies in the United States,” JAMA 1989, 26: 1621–29.Google Scholar
Edgar, H., Sandomire, H., “Medical Privacy in the Age of AIDS: Legislative Options,” Am. J. L. & Med. 1990, XVI:155222.Google Scholar
CDC, supra note 44.Google Scholar
480 U.S. 273 (1987).Google Scholar
Letter from Conrad K. Harper, President of the Assn of the Bar of NYC to Roper, William L., Director of the CDC, Nov. 26, 1990.Google Scholar
Arline at 277.Google Scholar
H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 56 (1990). See. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 45 (1990).Google Scholar
H.R. Rep., pt. 2, at 56–7.Google Scholar
Strathie v. Dept. of Transportation, 716 F.2d 227 (3d Cir. 1983) (Dept. of Transportation regulation found in violation of the Rehabilitation Act because it treated disabilities of similar magnitude differently.)Google Scholar
Leckelt v. Hospital District, 714 F. Supp. 1377 (E.D. La. 1989) aff'd 909 F.2d 820 (5th Cir. 1990).Google Scholar
Altman, L., “New York Won't Tell Doctors with AIDS to Inform Patients,” N.Y. Times, Jan. 19, 1991, p. 1, 34.Google Scholar