HIV-Infected Health Care Workers Who Perform Invasive, Exposure-Prone Procedures:Defining the Risk and Balancing the Interests of Health Care Workers and Patients

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Tammy L. Greene

Assignment #4

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)

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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 ...

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