Law pertaining to AIDS cases still evolving

December 05, 1990|By Graeme Browning

Just as medical knowledge about AIDS, which killed a Johns Hopkins Hospital surgeon, is still evolving, so is the law that pertains to it, attorneys say.

The only statute in Maryland that requires health-care workers to tell people that a patient has AIDS applies only to sexual or needle-sharing partners of the infected person, said Catherine Karker-Jennings, a Baltimore attorney who lectures about the legal implications of acquired immune deficiency syndrome.

None of the 1,800 patients upon whom the surgeon, Dr. Rudolph Almaraz, operated fits that category, she said.

In addition, Ms. Karker-Jennings and other attorneys point out, since Dr. Almaraz's family has not released his medical records, from a legal standpoint it is still not confirmed that Dr. Almaraz had the disease, an important factor in any legal action.

Marvin Ellin, the attorney who represents the Almaraz family, told The Sun last week that his client died of AIDS.

All of these factors sound like just so many legal niceties to Debra L. Judy, a 29-year-old Taneytown woman who had a biopsy done by Dr. Almaraz in May 1987.

Mrs. Judy was tested at Hopkins for the human immunodeficiency virus, which causes AIDS, on Monday, the day after reports of Dr. Almaraz's condition surfaced.

"The chances are very, very slim that the test will come back positive," she said. "But there should never even have been that chance."

Still, if Mrs. Judy or any other patients wanted to win a lawsuit against either Hopkins or the doctor's estate, they would have to prove first that they had contracted AIDS directly from him, attorneys say.

Then they would have to prove that either the hospital or the doctor knew there was a risk that the virus would be transmitted to patients -- and lawyers are divided on how easy that would be to do.

A recent report in the Journal of the American Medical Association, published before the Hopkins disclosure, cited four known cases of doctors contracting AIDS. There has been only one case in which a health-care professional is believed to have transmitted the disease to a patient.

Lisa Shoemaker, a patient Dr. David Acer, a Florida dentist who died of AIDS Sept. 3, has tested positive for the AIDS virus.

Two days ago Ms. Shoemaker filed a suit against Dr. Acer's estate in a Florida court.

The strength of a similar claim against Dr. Almaraz's estat "would depend on facts we don't know at this time," said a malpractice attorney who asked not to be idenfitied. "If the doctor knew he had a communicable disease, knew he was exposing patients and otherwise was acting carelessly, he may have committed negligence."

Other experts argue that Dr. Almaraz had a legal obligation to tell his patients of his disease.

A Maryland statute requires doctors to inform their patients of the risks of surgery and requires patients to give "informed consent" to the procedure, said Robin Goodenough, who teaches law and medicine courses at the University of Baltimore Law School.

Under that law, "I think it's a very basic fundamental right to know if the person operating on you has AIDS," Mr. Goodenough said.

But Donald L. DeVries, a Baltimore attorney who specializes i medical malpractice law, argued that the law requires a doctor to inform patients only of "material risks" of surgery.

Since the incidence of doctor-to-patient AIDS transmission is so low, the question of whether the law had been violated "would be for the jury to consider. Would the patient consider this risk 'material,'?" asked Mr. DeVries, a partner in the firm of Goodell, DeVries, Leech & Gray.

In the case of any hospital, a lawsuit would have to prove that the hospital knew of the doctor's illness and did not properly supervise him when he operated there, said David Manoogian, a partner in the Bethesda office of the Baltimore firm of Frank, Bernstein, Conaway & Goldman, which represents Hopkins Hospital in matters not related to the Almaraz case.

But Mrs. Judy argues that the hospital should require doctors who have operating privileges to be tested for AIDS annually.

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