Surgeons risk suits by hiding AIDS Court says patients should be told before operations

March 10, 1993|By Norris P. West | Norris P. West,Staff Writer

An article in yesterday's editions about a court ruling on lawsuits filed against Johns Hopkins Hospital and a surgeon who had AIDS misstated on second reference the name of a Hopkins official.

The hospital's vice president for medical affairs is Dr. Hamilton Moses III.

The sun regrets the errors.

Maryland surgeons who are infected with the AIDS virus must disclose that fact to patients before performing operations if they are to avoid lawsuits, the state's highest court ruled yesterday.

The ruling said that physicians infected with the human immunodeficiency virus may be held liable if they fail to disclose their conditions. It reversed a lower court decision on lawsuits filed against the estate of Dr. Rudolph Almaraz. The Johns Hopkins Hospital surgeon died in 1990 of an AIDS-related illness.

FOR THE RECORD - CORRECTION

After his death, Hopkins sent letters to about 1,800 former patients of Dr. Almaraz to disclose his illness and to assure them that their risk of contracting the human immunodeficiency virus was minimal.

The lawsuits were filed against the doctor's estate and Hopkins by two women who had been operated on by Dr. Almaraz.

Fearful they might have contracted AIDS during breast surgery, the women were tested for the virus and filed suit even though their test results were negative. The women were seeking class-action status to include all the doctor's patients.

In a unanimous opinion, the Maryland Court of Appeals returned the case to Baltimore Circuit Court.

The Court of Appeals' opinion was based on a policy statement adopted in July 1991 by the American Medical Association. The statement says that physicians should be tested for the virus that causes AIDS and disclose their condition to a public health officer if the result is positive.

The statement, which was drafted by the U.S. Centers for Disease Control and Prevention, says that HIV-infected doctors "should refrain from doing procedures that pose a significant risk of HIV transmissions or perform these procedures only with the consent of the patient and the permission of a local review committee."

Dr. Hamilton Moses III, Hopkins vice president for medical affairs, said the hospital encourages all its doctors and other health care professionals to be tested for HIV and to disclose their status to the hospital. However, he said, current state law prohibits hospitals from requiring testing.

Dr. Hamilton said the court's ruling will not affect the hospital's policy.

Paul F. Strain, a lawyer for the hospital, said surgeons have always been required to tell patients about risks in medical procedures.

He said that the court's decision allows juries to decide whether a doctor's HIV status should be part of that disclosure.

Jonathan Schochor, a lawyer for one of the plaintiffs in the lawsuits, hailed the verdict as a victory for patients.

"I think that a physician stands in a position of high duty to patients," Mr. Schochor said.

"A responsible physician or surgeon must disclose his or her status to avoid infecting patients. It is important in this day and age to control the spread of this lethal disease."

Mr. Schochor represented Perry Mahoney Rossi, who went to Dr. Almaraz for breast surgery in October 1989.

The doctor performed breast surgery on another plaintiff, Sonja Faya, in March 1989.

The women said they did not realize that Dr. Almaraz had AIDS until they read newspaper articles on Dec. 2, more than two weeks after his death.

The women filed lawsuits in Baltimore Circuit Court.

Judge Joseph H. H. Kaplan dismissed the suits in May 1991, saying the women's fears of contracting the virus were not enough of a reason to sue.

Maryland's high court sent the two lawsuits back to Baltimore Circuit Court, holding that Dr. Almaraz's negligence to disclose his illness created anxiety for patients during the period from when they learned of the doctor's condition until the time they received negative results on their HIV tests.

"Appellants maintain that . . . the trial court erred in not allowing a jury to evaluate Almaraz's conduct and its consequences. We agree," Chief Judge Robert C. Murphy wrote in the court's 29-page opinion.

The court ruled that the women could not claim damages for any time after they found out that they did not have the virus.

"Appellants may only recover for their fear and its physical manifestations which may have resulted from Almaraz's alleged negligence for the period constituting their reasonable window of anxiety -- the period between which they learned of Almaraz's illness and received their HIV-negative results," the court said.

"Under the allegations of the appellants' complaints . . . it was foreseeable that Dr. Almaraz might transmit the AIDS virus to his patients during invasive surgery," the court said.

Dr. David A. Wheeler, an internist and faculty member at the University of Maryland Hospital, said the court's decision does not provide enough guidance on when doctors must receive consent from patients.

He said the AMA does not list the surgical procedures considered to be intrusive.

"You could draw the line where a doctor giving someone a shot -- putting a needle through someone's skin -- could be a no-no," said Dr. Wheeler, a member of the Medical Chirurgical Faculty of Maryland.

Dr. Wheeler said the debate steers attention away from the two main vehicles for the spread of HIV -- intravenous drug use and sex.

Deborah Byrnes, a lawyer for the doctor's estate, said she could not comment because she had not seen the court's opinion.

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