HIV-Infected Health Care Workers Who Perform Invasive, Exposure-Prone Procedures:Defining the Risk and Balancing the Interests of Health Care Workers and Patients
Tammy L. Greene
HIV-Infected Health Care Workers Who Perform Invasive, Exposure-Prone Procedures:
Defining the Risk and Balancing the Interests of Health Care Workers and Patients
In the early 1990s, a report of a dentist who transmitted Acquired Immunodeficiency Syndrome (AIDS) to a patient resulted in mass fear and confusion among the health care industry, regulatory agencies, and the public at large. After conducting an extensive study, the United States Centers for Disease Control (CDC) confirmed that six patients of Dr. David Acer had become infected with human immunodeficiency virus (HIV) while under his care in the early 1990s. (1) This incident, known as the “Acer cluster,” however, is the only known transmission of HIV from a health care worker (HCW) to a patient in the United States. Because of obstacles to reporting exposures and unreliable data regarding how many physicians have been infected with AIDS, the fact that the Acer cluster is the only documented instance of transmission should not be considered dispositive. Further, the CDC’s confirmation of a report in France of an orthopedic surgeon who was diagnosed with full blown AIDS in 1994 and transmitted the virus to a patient in 1992 during surgery demonstrates that the Acer cluster is not an anomaly. Some infection control experts hope that the incident in France will dispel the collective belief in the health care industry that the Acer cluster was a random occurrence. (2)
Although federal disability law prohibits employers from discriminating against HIV-infected HCWs based on the contagious nature of the disease, exceptions exist if the person poses a “direct threat” or “significant risk” to others. Therefore, if a HCW suffers from a disability such as HIV and poses “a significant risk” to others while performing the essential functions of the job, that HCW is deemed not qualified for that position. Consequently, some HCWs are not protected by disability law.
Although many courts have concluded that HIV poses a substantial risk to patients that cannot be eliminated, the American Medical and Dental Associations (AMA and ADA) have classified the risk as insufficient to warrant mandatory testing or mandatory disclosure to patients. Because the informed consent doctrine is not premised on what the physician deems material but rather on what a reasonable patient considers material, the medical profession has violated the essence of informed consent by allowing physician paternalism and egotism to supersede patient autonomy. (3)
The CDC however has only documented only six patients contracting HIV from a HCW. This should not end the inquiry, however, as to whether mandatory testing or mandatory disclosure of a HCW’s HIV status should be required to protect patients from potential exposure. Because actual injury is required for a patient to prevail under informed consent, recovery is unrealistic unless actual transmission occurs. Despite the proof problems that would hinder patients’ success rates on informed consent claims, patients should not be precluded from prevailing on other tort claims such as the negligent or the intentional infliction of emotional distress.
AIDS and Health Care Workers
Of the approximately 9,269,000 people employed by the health care industry, 19,638 HCWs have been reported to be HIV-positive as of June 30, 1997.41 Although HCWs are in a high-risk profession, as of mid-1997, only fifty-two HCWs were infected with HIV by a patient. These figures demonstrate that the risk of a physician being infected by a patient is greater than the risk of a physician or other HCW infecting a patient. The difference becomes relevant because a patient may refuse consent to treatment by an HIV-infected HCW, but a HCW may not refuse a person treatment solely because of his HIV-positive status. The Supreme Court’s grant of certiorari in the case of Abbott v. Bragdon may signify that the Court will explain the foundation for this distinction.(4)
How CDC Guidelines Seek to Reduce the Risk
On July 12, 1991, after documentation of the Acer cluster, the CDC published Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis-B Virus to Patients During Exposure-Prone Invasive Procedures (CDC Recommendations). In the 1991 report, the CDC acknowledged that adherence to universal precautions was not fool-proof given the nature of certain invasive procedures that are exposure-prone. (5) Although the CDC stated that the risk of HIV transmission from HCW-to-patient was smaller than Hepatitis B (HBV) transmission, the CDC sought to minimize the risk of both HIV and HBV transmissions by recommending the following measures. First, “all HCWs should adhere to universal precautions” that include protective barriers, appropriate handwashing, and special care in the use and disposal of needles. Further,HCWs should comply with disinfection and sterilization techniques for reusing devices in invasive procedures; any HCW who has “exudative lesions or weeping dermatitis should refrain from” engaging in direct patient careor performing invasive techniques until the condition dissipates. Second, if a HCW participates in an invasive procedure that is not classified as exposure prone, there is no scientific evidence warranting restriction of that HCW’s participation.Third, medical, surgical, and dental organizations and institutions should identify the exposure-prone procedures at their respective facilities. Fourth, HCWs who perform invasive exposure-prone procedures are responsible for knowing their HIV status. Fifth, HCWs who are HIV-positive should not participate in exposure-prone procedures without approval from an expert panel. That panel would decide whether the HIV-infected HCW should be permitted to continue working and whether his patients should be informed of his HIV status. Finally, the CDC does not recommend mandatory testing of all HCWs given a cost benefit analysis of the risk that infected HCWs will transmit HIV or HBV and the economic resources that mandatory testing would require. Although the CDC Recommendations provide a framework for preventing HIV transmission and determining whether a HCW should be permitted to participate in exposure-prone procedures, they did not provide any legal consequences for a physician, hospital, or medical organization’s failure to comply with these precautionary measures. (6)
Increasing the Force of the Guidelines
As a result of the Acer cluster, Congress sought to prevent additional instances of HCW-to-patient HIV transmission by increasing incentives for complying with the CDC Recommendations. The first significant proposal from Congress, the Helms Disclosure Proposal, passed in the Senate and would have required HCWs to disclose their HIV status or be subject to a $10,000 fine and no less than a ten-year prison term. The second proposal, the Kimberly Bergalis Patient and Health Provider Protection Act of 1991, also referred to as the Dannemeyer Proposal, mandated HIV testing of HCWs who perform exposure-prone procedures, mandatory disclosure of those test results, and nonconsensual testing of patients. Neitherof these proposals passed both houses of Congress. Ultimately, Congress enacted the Treasury, Postal and General Government Appropriations Act of 1992, which included the Dole/CDC Amendment (the Act). Within one year of its enactment, the Act required that each territory’s and state’s top public health official certify to the Secretary of Health and Human Services that the state’s policy for adhering to the CDC Recommendations was consistent with federal law. In furtherance of that goal, the Act required that each state articulate the process for determining disciplinary sanctions for failure to comply with the CDC Recommendations. If a state failed to articulate a policy to ensure compliance with the CDC Recommendations by October 28, 1992, that state became “ineligible to receive assistance under the Public Health Service Act.” By October 1992, twenty-three states and territories had complied with the Act, twenty-nine had applied for an extension, and seven states and territories had adopted the CDC Recommendations. Although all states and territories have complied with the mandate, approaches vary as evidenced by the existence of both voluntary and mandatory guidelines.(7)
This is a preview of the whole essay
Why Universal Precautions Do Not Ensure Universal Compliance or Universal Protection
Both the CDC Recommendations and the Act do not ensure universal compliance with universal precautions for several reasons. First, the CDC Recommendations are not mandatory as indicated by the language of the Act, which consistently uses “should” rather than “shall.” Consequently, there is “no unwavering obedience” of HCWs to adhere to the universal precautions. Second, the CDC Recommendations and the Act do not dictate any legal consequences for HCWs, health care institutions, or licensing boards for failing to adhere to them. They merely punish states financially for declining either to adopt the CDC Recommendations or devise their own policies. Third, states’ recommendations can actually be less stringent than the federal guidelines because the CDC Recommendations are not a requirement but rather a suggestion, leaving patients with even less protection. Fourth, as the CDC acknowledges and as evidenced by over fifty HCWs contracting HIV on the job, latex barriers are not foolproof.
ANTI-DISCRIMINATION LAW AND HIV-INFECTED HEALTH CARE WORKERS
Since the onset of AIDS in the United States in 1981, discrimination that accompanies the negative stereotypes surrounding the disease has harmed those who are HIV-infected as well as the public at large. For example, the CDC’s first report of AIDS noted that the disease had afflicted five men, all of whom were gay, leading to the misnomer of the “gay plague.” In the mid-1980s the high-risk group status expanded to Haitians and intravenous drug users, solidifying negative stereotypes associated with both groups and implying that the disease affected only immigrants or addicts. When it was discovered that the disease was sexually transmitted, the public dismissed the disease as one that afflicted moral outcasts who engaged in deviant behavior. Finally, in 1985, Ryan White, a school-aged hemophiliac who was infected after a blood transfusion, humanized AIDS as the world watched his school district deny him entry to the classroom based on his infection. Nonetheless, anyone with HIV remained stigmatized and at risk of being discriminated against based on unfounded fears regarding HIV transmission. HIV-positive children were excluded from attending schools and HIV-positive employees were terminated from their jobs.For recourse from this type of discrimination, victims looked to two federal acts-the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. (8)
Section 504 of the Rehabilitation Act and the Americans with Disabilities Act both section 504 of the Rehabilitation Act and the ADA protect one who “(i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” These statutes differ, however, in that section 504 restricts only those entities that receive federal financial assistance from discriminating against a “qualified individual with handicaps . . . solely by reason of her or his handicap.” In addition, the ADA is significantly more expansive because it applies to both public and private employers. Of particular relevance to this Note, Title I of the ADA addresses employment rights.After a disability has been established, the next step is premised on whether the disability “substantially impairs” or “substantially limits” a major life activity based on an individualized inquiry. In conducting this analysis, however, both the ADA and section 504 provide an exception that allows people to make disability-based determinations if the impairment poses a “significant threat” to others. Specifically, employers are permitted to exclude employees who “pose a direct threat to the health or safety of other individuals in the workplace.” In such a case, employees are deemed not “otherwise qualified” under section 504 and further they cannot “perform the essential functions of the employment” regardless of reasonable accommodation as required under the ADA.122 Under both statutes, however, the EEOC requires that the disability pose a “significant risk of substantial harm.” (9)
Contagious Diseases as Disabilities
In 1987, the United States Supreme Court decided in School Board v. Arline (10) that a teacher who suffered from tuberculosis, a contagious disease, was a handicapped individual within the meaning of the Rehabilitation Act. Gene Arline had taught in New York’s Nassau County public school system from 1966 until 1979; the school district discharged her after her third relapse of tuberculosis within two years.126 In analyzing Arline’s claim under section 504 of the Act, the Court reviewed the regulations promulgated by the Department of Health and Human Services (HHS) to determine whether Arline suffered a physical impairment. Because Arline had tuberculosis that required hospitalization in 1957, the Court concluded that she had a record of impairment, placing her within a protected class under section 504. In remanding to the district court, the Court articulated the appropriate individualized inquiry for determining whether Arline was “otherwise qualified” for her job as an elementary school teacher. The Court sought to balance legitimate concerns regarding Arline’s contagiousness against section 504’s goal of protecting handicapped individuals from “deprivations based on prejudice, stereotypes or unfounded fear . . . .” Based on the AMA’s amicus curiae brief, the Court articulated a four prongtest. The test, based on reasonable medical opinions given current medical information, considered (1) the type of risk or how transmission occurs, (2) the duration or term of that risk or how long a person is infectious, (3) the severity of the risk based on the potential harm to others, and (4) the probability that transmission will occur causing a myriad of harms. After determining whether the person poses significant health and safety risks, the Court required an evaluation of whether the individual was “otherwise qualified.” In the analysis, the Court recognized that an individual who does pose a “significant risk” of transmitting an infectious diseases to others in the workplace is not “otherwise qualified . . . if reasonable accommodation will not eliminate that risk.” Therefore, under Arline’s four-part balancing test, discrimination against an individual with a contagious disease does not constitute disability discrimination if a reasonable accommodation
will not protect others from the significant health and safety risks. On remand, the district court concluded that Arline did not pose a “significant risk” or “direct threat” of transmitting tuberculosis to the children in the Nassau County elementary schools because she did not have active, contagious tuberculosis. The court deemed Arline “otherwise qualified” and ordered reinstatement.
In dicta, the Supreme Court explained the importance of protecting handicapped individuals from disability discrimination, emphasizing Congress’s recognition that “society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” In addition, the Court noted that few conditions of handicap cause as much public fear and apprehension as contagious diseases. Although the Court explicitly discussed how contagious diseases give rise to discrimination, it declined to examine the question of whether someone who carries the HIV virus is physically impaired. Generally, however, courts have concluded that HIV constitutes a disability under section 504. In addition, in 1988, the United States Department of Justice declared that individuals who are HIV-infected are disabled under section 504 because the disease manifests itself in physical impairments that substantially limit major life activities such as breathing, talking, seeing, or walking. Based on those conclusions, various states have classified AIDS and HIV as protected disabilities in antidiscrimination statutes. The challenge is for the HIV-infected individual to rebut a defendant’s defense that the plaintiff posed a “significant threat” to the health and safety of others.
In 1987, Congress passed the Civil Rights Restoration Act, (11) which sought to codify the “significant risk” test articulated in Arline. Specifically, Congress “added a provision to section 504 of the Rehabilitation Act stating that persons with ‘contagious diseases or infections’ are not coveredunder section 504 if they pose a ‘direct threat to the health or safety of other individuals.’” Thus, if an employer cannot eliminate the “significant risk” by reasonable accommodation, the employee will not be “otherwise qualified.” Although codification of the Arline standard did not provide a definition of “direct threat,” the ADA defines “direct threat” as one that poses a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”
The United States Supreme Court granted certiorari to Abbott in November 1997. Therefore, the Court has the opportunity to address whether asymptomatic HIV constitutes a disability and whether a physician must treat an HIV patient. As to the second issue, the Court’s disposition could have a profound effect on patients’ rights in terms of the duty to treat and informed consent. On one hand, patients’ rights could be restricted if the Court concludes that physicians do not have a duty to treat HIV-infected patients or that patients must disclose their HIV status. On the other hand, patients’ rights could be expanded if the Court decides that physicians should be required to disclose their HIV status to patients.
PATIENT CONCERNS REGARDING INVASIVE, EXPOSURE-PRONE
PROCEDURES: WHY THE RISK OF HIV INFECTION IS MATERIAL AND THE
FEAR OF TRANSMISSION IS REASONABLE
Employees, including HCWs, should be protected from disability discrimination caused by their HIV status. Nonetheless, as indicated by the“direct threat” and “significant risk” language under the Rehabilitation Act and the ADA, a HCW’s right to be free from discrimination is not absolute. Nonetheless, most people would like to know whether their treating physicians are HIV positive. The dilemma, however, is premised upon whether a physician has a legal duty to disclose that information to a patient. Although a large portion of this speaks generally of statistics involving HCWs, specifically focuses on physicians, including dentists and surgeons, and discusses whether a patient should be informed of his physician’s HIV status. The intentional and negligent infliction of emotional distress torts provides additional areas of debate.
The doctrine of informed consent is premised on a patient’s right to autonomy and self-determination. Specifically, the doctrine recognizes that an individual has “a right to be free from nonconsensual interference with his or her business.” Generally, informed consent seeks to “protect individual autonomy; protect the patient’s status as a human being; avoid fraud or duress . . . and involve the public generally in medicine.”As stated in 1972, in one of the most significant informed consent cases, Canterbury v. Spence (12), the doctrine is based on the notion that a physician should divulge information that he objectively, not subjectively, considers to be “material” according to what information a prudent patient would want to make a decision. In Canterbury, the court defined a risk as being material “‘when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks’” when deciding whether to undergo a specific procedure. In addition to demonstrating that (1) a specific risk was material, a patient must demonstrate that (2) a reasonably prudent patient would have foregone the procedure if informed of the significant dangers and (3) those risks manifested an actual injury. As to the first element, the issue of whether a physician’s HIV status is material to the patient’s medical decisionmaking is somewhat unusual because the risks are based upon the physician’s own characteristics that, as a general rule, are not considered in the analysis. The inherent dilemma permeating the issue is whether physician-risk information, rather than procedure specific risks, can be considered. HIV-infected HCWs should be classified within the physician-specific category of facts subject to disclosure for three reasons. First, HIV is a contagious and fatal disease that causes irreparable harm. Second, the lethal risk depends upon the physician’s HIV status and the procedure involved. Third, in contrast to fatigue or depression, an HIV-infected physician who performs an invasive procedure places a patient at risk of contracting the disease each time the physician makes an incision, punctures the skin, or places his hands into a patient’s body cavity. Further, HIV is contagious and the risk associated with invasive procedures make the disease a hybrid between physician-specific and procedure specific risks. Specifically, if the physician performs a non-invasive procedure, there is no material risk in the procedure despite the physician’s HIV status. In contrast, if a physician performs an invasive procedure, his HIV status should be considered a procedure-specific risk given that the invasive procedure would not be risky but-for the physician’s HIV status, whereas the risk of a physician causing harm based on fatigue or depression exists in every procedure. Further, as stated by the court in Mauro v. Borgess Medical Center(13), the appropriate test is whether the risk is avoidable, in the sense that it could be eliminated by the particular physician foregoing the procedure. Accordingly, because HIV transmission necessarily results in death, the HIV status of a physician should be considered material if that physician performs exposure-prone, invasive procedures. As to the second element required for an informed consent claim, people often classify the risk of HIV transmission from a HCW to be material. For instance, ninety percent of those surveyed in one poll, and eighty percent surveyed in another poll, stated that physicians who are HIV-positive should inform patients of their HIV status. The respondents in one poll admitted that they would forego treatment with that physician, or at the least, refuse to permit that physician to perform any invasive, exposure prone procedures. Although a patient’s refusal would likely result in de facto termination, the issue is distinct from whether the risk is material to the patient. Indeed, termination is an unfortunate consequence for a physician. Nonetheless, it is the patient’s prerogative to refuse treatment from that physician because patient choice and autonomy are the essence of the informed consent doctrine. Further, the risk of transmission is material as exemplified by the disposition of the second wave of HIV-disability discrimination cases that classified any risk of transmission as significant.
The patient-physician relationship exists to serve and protect the patient’s interests, not those of the physician. Further, the physician owes a fiduciary duty to the patient, whereas the patient does not owe a reciprocal ethical duty to the physician. Given the unequal positions in a patient-physician relationship, it is preposterous to place the on us on the patient to ask whether the physician is HIV-positive, given the inequality of medical knowledge.The medical profession’s promulgation of a “Don’t Ask-Don’t Tell” policy constitutes an industry-wide breach of the duty of care.
Further, several cases have concluded that the HIV status of a physician who practices invasive, exposure-prone procedures is material under the informed consent doctrine. In 1991, a New Jersey court was the first to address that issue in Estate of Behringer v. Medical Center(14). After the hospital suspended Behringer’s privileges, he filed suit alleging that the hospital had violated the state’s anti-discrimination statute by suspending his privileges and by failing to maintain confidentiality of his diagnosis and test results. The court held the hospital liable for the unauthorized disclosure of his test results, but concluded that suspension was appropriate. Although the court noted that at the time Behringer acquired the disease no physician had transmitted HIV to his patient, the court agreed that the patient should be the “ultimate arbiter” in assessing the potential for harm. Similarly, that same year, in In re Milton S. Hershey Medical Center the Pennsylvania Supreme Court upheld the hospital’s disclosure of a resident’s HIV status to over 400 patients and colleagues to whom the resident provided assistance during invasive procedures. The court concluded that the hospital acted reasonably in revealing the resident’s HIV status to patients because of the strong likelihood that the resident may have exposed a patient to HIV after cutting his surgical glove during an invasive, internal procedure. The resident, who eventually voluntarily withdrew from invasive procedures, argued that his right to privacy, as defined by a state statute, outweighed the compelling need to disclose his HIV status to patients. The court rejected this argument because his name was kept confidential and because the notification form to patients stated only that they had been exposed to an HIV-positive physician and that the hospital would provide HIV testing and counseling. Consequently, the court held that the public’s right to be informed of a highly contagious and inevitably fatal disease outweighed the physician’s right to maintain confidentiality regarding his HIV status.
Three years later in Scoles v. Mercy Health Corp(15). The United States District Court for the Eastern District of Pennsylvania held that the hospital did not violate an HIV-positive surgeon’s rights when the hospital threatened suspension of surgical privileges unless the physician obtained informed consent. The court also concluded that the hospital appropriately informed 1000 patients of their potential exposure to HIV. Therefore, cases since Hershey and Estate of Behringer have concluded that a physician who performs invasive, exposure-prone procedures poses a material risk. Although a patient is likely to prove that the risk of HIV transmission is material and would result in his foregoing a procedure, proving causation is often insurmountable in a strict informed consent case seeking recovery;transmission has been documented in the United States only on six occasions, by a single doctor, Dr. David Acer, and once in France, by an orthopedic surgeon. Because the causation element is impossible to prove, the disposition of a traditional informed consent claim is predetermined in favor of the physician. That strict informed consent is not possible unless someone contracts the disease from an HIV-infected physician should not preclude the possibility of a patient recovering for the emotional distress associated with learning of a physician’s HIV status.
IV. RECOMMENDATIONS: CLEARER GUIDELINES, MANDATORY SCREENING OF HCWS, AND INFORMED CONSENT
Background: Statutory and Constitutional Considerations
Generally, the ADA prohibits medical exams and inquiries before a conditional offer has been made to an applicant. A conditional offer, however, may hinge on the result of an HIV test if the employer meets the following requirements: (1) all offerees in the same category are required to submit to exams or inquiries even though they may not have a disability, (2) all information collected in that inquiry must be kept on separate forms and be protected by confidentiality, and (3) the subsequent use of the results of the inquiry or exam must be consistent with the general requirements of the ADA. For an employer to use the results of an HIV test to screen out an applicant, the employer must demonstrate that the applicant was excluded for job-related concerns and the inability to perform the essential functions of the job, even with a reasonable accommodation. Healthcare is usually the easiest field in which to meet these requirements, in part, because the CDC guidelines address the issue.Upon securing employment, an HCW may be required to submit to an HIV test if and only if it is a job-related concern and consistent with a business necessity. Again, these requirements are easy to satisfy within the health care field. The CDC recommends that HCWs be aware of their HIV antibody status, that they voluntarily be tested for HIV, and that they decline participation in exposure-prone procedures unless expert panels have reviewed their situations and provided recommendations. Although the ADA permits HIV testing of applicants and employees in the health care context provided that employers adhere to the aforementioned requirements, the constitutional ramifications have not yet been addressed in high-risk employment areas such as health care.Generally, the Fourth Amendment’s Search and Seizure Clause of the United States Constitution controls the analysis. The United States Supreme Court has employed a balancing test in this context to weigh the intrusion on the individual’s privacy interest against the state’s legitimate or compelling interests In the context of HIV testing, courts have upheld mandatory testing programs (1) for prisoners, because the government interest in preventing HIV transmission outweighs prisoners’ diminished expectations of privacy; (2) for foreign service exams, because HIV testing impacts general fitness for duty; (3) for both fire and police personnel, because they respond to medical emergencies; and (4) even for professional boxers, because they may pose a risk to their opponents. Although courts have upheld mandatory HIV testing in these contexts, mandatory testing has been struck down where the evidence failed to demonstrate that casual contact posed a risk of HIV transmission. The health care industry, by its very nature, is distinguishable from these casual contact scenarios because HCWs engage in invasive, exposure-prone procedures.
Although Congress declined to enact mandatory testing laws even amidst the Acer cluster incident, a statutorily-based duty may eliminate litigation in the area of informed consent and the infliction of emotional distress. In addition, mandatory testing would eliminate the burden on the judiciary of making a medical and legal determination of what constitutes a “significant risk,” given the CDC’s failure to articulate more specific guidelines regarding questions of who, how, and when a HCW should not partake in patient care.
Despite tremendous medical advances over the past two decades, HIV continues to challenge the scientific and medical communities, demonstrating that there is no certainty regarding HIV except that it remains fatal. Nonetheless, a balance must be struck between an HIV-infected HCWs’ right to be free from disability discrimination and patients’ rights to be free from unnecessary risks. Unfortunately, physicians and other HCWs have failed to heed the CDC Recommendations that HCWs know their HIV status and abstain from invasive procedures. Thus, the burden should be placed on hospitals, managed care organizations, or other providers to know their employees’ HIV statuses.
Although the issue of HIV-infected HCWs remains sensitive, mandatory testing should be implemented as the most effective way to achieve an equilibrium between HCWs’ and patients’ interests. It seems absurd that emergency fire and police personnel, professional boxers, and foreign service personnel can be required to submit to mandatory HIV testing, but that HCWs, who owe a fiduciary duty to their patients, have continued to evade such a requirement. Although the probability of transmission is remote, HIV is lethal. Further, HCWs owe their patients unique responsibilities. These overriding considerations justify mandatory HIV testing.
1)The Rights of People Who Are HIV Positive, http://www.aclu.org/
2) United States Centers for Disease Control (CDC)
3) American Medical and Dental Associations (AMA and ADA)
4) Abbott v. Bragdon: http://www.law.emory.edu/1circuit/mar97/96-1643.01a.html
5) Centers for Disease Control, Recommendations for Preventing Transmission of
Human Immunodeficiency Virus and Hepatitis-B Virus to Patients During Exposure-Prone
Invasive Procedures, MORBIDITY & MORTALITY WKLY. REP. 1 (1991) [hereinafter
6) American Dental Association, Dental Management of the HIV-Infected Patient Legal and Ethical Considerations, http://www.ada.org/prof/prac/issues/pubs/hiv/hiv.html
7) Public Health Service Act, http://www.fda.gov/opacom/laws/phsvcact/phsvcact.htm
8) Rehabilitation Act of 1973 , http://www.eeoc.gov/laws/rehab.html and Americans with Disabilities Act of 1990, http://www.eeoc.gov/laws/ada.html
9) Rehabilitation Act of 1973 , http://www.eeoc.gov/laws/rehab.html and Americans with Disabilities Act of 1990, http://www.eeoc.gov/laws/ada.html
10)School Board of Nassau County, Florida v. Arline, http://www.publichealthlaw.net/Reader/dl.php?doc_id=5480273
11) 1987 Civil Rights Restoration Act, http://www.usdoj.gov/crt/grants_statutes/legalman.htmls
12) Canterbury v. Spence., 464 F.2d 772 (D.C. Cir. 1972), http://plague.law.umkc.edu/cases/consent/canterbury_v_spence.htm
13) Mauro v. Borgess Medical Center, http://www.law.emory.edu/6circuit/feb98/98a0067p.06.html
14) Estate of Behringer v. Medical Center, http://students.washington.edu/aed/archivemidget/980303.htm
15) Scole v. Mercy Health Corp., 1994 W.L. 686623 (E.D. Pa. 1994)