. . . and the hard place

December 11, 1990

In today's litigious world, it was only a matter of time before someone sued Johns Hopkins Hospital for allowing Dr. Rudolph Almaraz, an AIDS-infected surgeon, to operate on patients. It turned out to be a short time indeed: Yesterday a former patient of Dr. Almaraz filed a suit seeking $32 million in damages. The patient, let it be noted, is not claiming she contracted AIDS, and in fact, her chances of having actually contracted the disease are infinitesimal, according to the best current evidence. Rather, she is claiming that the mere after-the-fact knowledge that she had been operated on by Dr. Almaraz caused her "panic, horror and fear."

From a legal standpoint, there are two distinct issues involved. One is the obligation of a doctor to inform patients when he or she may be putting them at risk, however remote, of some unknown hazard. The other issue is the obligation of the hospital to make certain that the doctor is "safe" -- not only free of AIDS infection but also of drug impairment or any other impediment.

So the hospital finds itself between the proverbial rock and a hard place. On the one hand it faces suits by doctors who claim that indiscriminate testing, for drug impairment and possibly for AIDS infection as well, violates their rights; on the other hand, it faces suits by patients who claim the hospital should have conducted the tests that would reveal those very dangers.

It is a classic case of rights in conflict, with the hospital caught in the middle. Hospitals cannot live with such legal uncertainty; the courts must sort out the conflicting claims, and quickly.

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