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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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