N.J. judge rules doctor with AIDS must tell patients before operating

April 26, 1991|By Joseph F. Sullivan | Joseph F. Sullivan,New York Times News Service

TRENTON, N. J. — TRENTON, N.J. -- A Superior Court judge ruled yesterday that a surgeon infected with the AIDS virus must inform patients before operating on them.

In what is believed to be the first court ruling in the nation to weigh the protection of a health care worker's confidentiality against a patient's right to know, the judge, Philip S. Carchman, said: "If there is to be an ultimate arbiter of whether the patient is to be treated invasively by an AIDS-positive surgeon, the arbiter will be the fully informed patient.

"The ultimate risk to the patient is so absolute, so devastating, that it is untenable to argue against informed consent combined with a restriction on procedures which present 'any risk' to the patient," Judge Carchman wrote in a 75-page opinion.

The opinion appears to go further than the draft guidelines being studied by the federal Centers for Disease Control, which recommend that infected physicians voluntarily suspend performing procedures that carry a risk of transmission or seek the approval of local committees.

The center began re-examining its recommendations that call for a case-by-case evaluation of how infected physicians and dentists should practice after a dentist in Stuart, Fla., who died of AIDS, was found to have infected three patients.

Another Florida dentist gave up his practice this month after learning that he has acquired immune deficiency syndrome and recommended that his patients undergo testing.

In recent months, the American Medical Association and the American Dental Association have adopted policies recommending that infected physicians tell their patients or stop performing surgery.

The case that brought the issue before Judge Carchman was filed in 1988 by Dr. William H. Behringer, an ear, nose and throat specialist who practiced in Princeton and performed surgery at the Medical Center at Princeton until he was found to have AIDS in 1987.

Dr. Behringer was 42 when he died of AIDS on July 2, 1989, but his estate continued the suit, charging the medical center with breach of contract and with violating state anti-discrimination laws.

Judge Carchman ruled in favor of the physician in finding that the hospital breached its duty to protect the confidentiality of his diagnosis, which was made in June 1987 when he came to the hospital's emergency room.

The information on Dr. Behringer's medical chart became widely known throughout the hospital and was being discussed around town before he was released from the hospital two days later.

In his suit, Dr. Behringer said his friends shunned him, his patients left him and he suffered emotional and economic distress because of the disclosure.

"All that was required was a glance at a chart, and the written words became whispers and the whispers became roars," Judge Carchman wrote. "And common sense told all that this would happen."

Judge Carchman ruled that the physician's estate was entitled to damages from the medical center for its failure to protect his confidentiality as a patient.

The amount will be the subject of further hearings.

But his opinion upheld the action of the medical center and its president, Dennis Doody, in suspending Dr. Behringer's surgical privileges.

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