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A Response to Gostin, “The HIV-Infected Health Care Professional: Public Policy, Discrimination, and Patient Safety”

Published online by Cambridge University Press:  29 April 2021

Chai R. Feldblum
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Extract

On February 21-22, 1991, the Centers for Disease Control convened an Open Meeting on the Risk for Transmission of Bloodborne Pathogens to Patients During Invasive procedures in Atlanta, Georgia. Over 80 organizations testified at that meeting.

Almost without fail, every organization testified against the use of mandatory HIV testing to screen out HIV-infected surgeons and dentists from practice. Various groups and individuals, however, advocated that HIV-infected professionals should voluntarily restrict themselves from selected procedures and/or should voluntarily disclose their HIV status to their patients.

Larry Gostin, the Executive Director of the American Society of Law and Medicine, argued that HIV-infected health care workers should voluntarily self-defer from selected invasive procedures. I believe that the approach of voluntary self-deferral has legal and practical flaws and is not the appropriate public policy for the CDC to adopt.

Type
Commentary
Information
Law, Medicine and Healthcare , Volume 19 , Issue 1-2 , Spring Summer 1991 , pp. 134 - 139
Copyright
Copyright © American Society of Law, Medicine and Ethics 1991

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References

See, e.g., Association for Practitioners for Infection Control, Position Paper: “The HIV-Infected Health Care Worker,” APIC 1990, 18:371–381 and testimony, Feb. 21, 1991, Atlanta, GA; American Medical Association testimony, Feb. 21, 1991, Atlanta, GA.Google Scholar
Testimony of Larry Gostin, Feb. 22, 1991, Atlanta, Georgia; Gostin, , “The HIV-Infected Health Care Professional: Public Policy, Discrimination, and Patient Safety,” 18 Law, Medicine and Health Care 4 (Spring 1991) 303–310.Google Scholar
See Gostin, , supra n. 2. Many of Gostin's arguments were also developed in a previous article, Gostin, L., “HIV-Infected Physicians and the Practice of Seriously Invasive Procedures,” 19 (1) Hastings Center Report 32–39 (1989).Google Scholar
Gostin, , supra n.2, at 304.Google Scholar
Gostin, , supra, n.2, at 304.Google Scholar
See, e.g, Canterbury v. Spence, 464 F.2d 772 (D.D.C. 1972); Wilkenson v. Vesey, 110 R.I. 606, 624, 295 A.2d 676 (R.I. 1972); see also Feldblum, “Informed Consent: Issues for Individuals with HIV Disease,” unpublished paper, January 1990.Google Scholar
For example, the informed consent doctrine was used in an 1851 case to require that a physician disclose to his patients that the physician was attending another patient with smallpox. Piper v. Menifee, Ben Monroe Reports, Winter Term 465 (Winter Term 1851). See Gostin, supra note 3, at 34 and nn. 32–33. The informed consent doctrine has not, however, traditionally been used as a rationale for forced confession by providers of risks associated with such factors as casual alcohol use, stress, or sleep-deprivation. As one court has appropriately explained: “[T]here must be a reasonable accommodation between the patient's right to know, fairness to physicians, and society's interest that medicine be practiced…without unnecessary and unrealistic burdens on practitioners.” Precourt v. Frederick, 677 F.Supp. 1259 (D.Mass. 1985).Google Scholar
If the risk is the result of a disablitiy, the provider's employer, place of practice, or licensing department must first determine if a reasonable accommodation exists that would eliminate or reduce the risk to a non-significant level. If no such accommodation is available, or if it would impose an undue hardship to institute such an accommodation, the provider would not be considered “qualified” to practice. See, e.g., School Board of Nassau County v. Arline, 480 U.S. 273 (1987).Google Scholar
Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 Morbidity & Mortality Weekly Rep. (Supp.2S 1987).Google Scholar
See Leckelt v. Board of Commissioners of Hospital District No.1, 714 F.Supp. 1377 (E.D.La. 1989), aff’d 909 F.2d 820 (5th Cir. 1990)(upholding hospital's demand that a nurse suspected of being HIV-positive disclose the results of an HIV antibody test). Gostin makes this same point. See Gostin, supra note 2, at 305.Google Scholar
Gostin, , supra note 2, at 305.Google Scholar
Gostin, , supra note 2, at 306.Google Scholar
Gostin, , supra note 2, at 306.Google Scholar
The CDC's studies, done more recently, suffer from the same flaw. See Feldblum, testimony presenmted on behalf of the American Civil Liberties Union, Feb. 21, 1991, Atlanta, GA, noting that, as a legal matter, such infection control practices must be in place before a risk of transmission may be quantified that would justify exclusion of health care workers with disabilities.Google Scholar
Gostin, , supra note 2, at 306. Gostin, cites his 1989 Hastings Center Report article, supra note 3, as support for this statement.Google Scholar
See, e.g., Finklestein, R., testimony delivered on behalf of AIDS Action Council, Atlanta, GA, Feb. 21, 1991; memorandum from Barnes, M. Tynan, E. to Rogers, David E. M.D., N.Y. State Department of Health, “Comments on the CDC Draft paper,” March 18, 1991.Google Scholar
Gostin, , supra note 2, at 306.Google Scholar
Brennan, T.A. Leape, L.L. Laird, N.M. et al, “Incidence of Adverse Events and Negligence in Hospitalized Patients—Results of the Harvard Medical Practice Study I,” 324 New England Journal of Medicine 370–376 (1991).Google Scholar
Gostin, , supra note 2, at 306.Google Scholar
Gostin, , supra note 2, at 306. For example, Gostin, notes, “few health care facilities or licensing authorities require blood alcohol or drug tests or systematically monitor the professional for physical or mental impairments or dangerous infectious conditions.” Id. at 306.Google Scholar
Gostin, , supra note 2, at 307.Google Scholar
Under this approach, the CDC would presumably note that it is continuing to engage in activities to ascertain an accurate quantification of the risks of HIV transmission.Google Scholar
ADA, S302 (b) (2) (A); 42 U.S.C. S12182 (b)(2) (A).Google Scholar
Indeed, such a policy might result in the worst form of mandatory testing: facilities might require that only those professionals that it “suspects” of being at risk of HIV-infection (perhaps those providers who are gay or who are suspected of being gay) show proof of HIV-negative status.Google Scholar
480 U.S. 273 (1987). See also Feldblum, ACLU testimony, Feb. 21, 1991, Atlanta, GA.Google Scholar
Gostin, , supra note 2, at 308.Google Scholar
Gostin, , supra note 2, at 308.Google Scholar
See, e.g., Report of the House Education and Labor Committee, 101st Congress, 2nd Sess., H. Rpt. 101–485, Part 2, at 73–74.Google Scholar
56 Fed. Reg. 35745 (July 26, 1991) (person must pose “high probability of substantial harm”).Google Scholar