Should an HIV-Positive Surgeon Tell?

June 15, 1993|By DAVID WHEELER, KAREN ROTHENBERG and DEBRA WEIMERCO: DAVID WHEELER, KAREN ROTHENBERG and DEBRA WEIMER

Would you like to know if your surgeon is HIV-positive? You might think so, but reflect for a moment. Do we each have a right to that information? Is it sound public health policy to compel such disclosure?

''Informed consent'' means that a patient must be informed of the potential risks and benefits of a procedure and indicate willingness to proceed despite those risks. The physician's duty to describe the risks inherent in a surgical procedure has never yet been interpreted to include personal qualities of the physician.

The recent decision in the Maryland Court of Appeals holding that an HIV-infected surgeon has an obligation to disclose his status to patients arises from irrational fear of HIV. It perpetuates fear and discrimination and has far-reaching negative implications. Will medical providers now be required to disclose their complete medical histories, their use of alcohol and medications, how much sleep they've had the night before an operation?

HIV has never been transmitted from a surgeon to a patient. The Centers for Disease Control has studied 15,000 patients of 32 HIV-positive health workers and found no evidence of transmission. In one well-publicized case, five patients of a Florida dentist were infected with the same virus as the dentist, but the CDC was never able to establish the route of transmission. Were they infected by contaminated instruments? Did the dentist cut himself on five different occasions and bleed into the patients, or was there some willful misconduct on his part?

Other than this perplexing and tragic case, no cases of possible transmission of HIV from health-care worker to patient have been identified -- not from physicians, not from surgeons, nor from any other dentist.

When we look at the implications of compelling disclosure, the costs and dangers become apparent. HIV-positive health-care workers who pose no significant risk to their patients will be stripped of their work and become drains on the health system, instead of contributing to it. (An HIV-positive person may have up to 10 years of productive work before developing AIDS). Other health-care workers will become more fearful of working in inner-city hospitals where they inescapably will come into contact with large numbers of HIV-positive patients.

It is much more likely that HIV will be transmitted from patient to health-care worker than the other way around. May health-care workers demand to know the HIV status of patients? The cost of testing all health-care workers and patients would be astronomical. Discrimination against HIV-positive patients is very likely to increase.

The Court of Appeals leaves us with many questions. Do all health-care workers, or only surgeons, have an obligation to disclose their HIV status? Should all health-care workers be tested for HIV? How often? Even daily testing will not be fool-proof, since a person can be infectious for 2-6 weeks before showing a positive test result. Even if a surgeon were tested before every operation, the patient's risk for being exposed to HIV would still not be zero.

If testing is recommended for all health-care workers and patients, who will pay for it? It is estimated that testing surgeons and dentists in Maryland and 60 percent of their patients would cost about $70 million a year. How many cases would this expenditure prevent? Probably not even one, given the infinitesimal rate of transmission.

If a health-care worker chooses not to be tested, can the hospital force testing? Can a hospital legally restrict an HIV-positive health-care worker from treating patients? The federal Americans with Disabilities Act bars discrimination because of HIV status, so long as a health-care worker is able to perform properly and does not pose a ''significant risk'' to patients. Just as in cases of race, sex and age discrimination, public perception or personal bias is not reason enough to deprive a person of livelihood.

So what is the appropriate response?

New York has taken an informed, enlightened approach that protects patients while not unnecessarily restricting health-care workers. The plan emphasizes the importance of infection-control practices. A health-care worker is restricted from practice only if the ability to practice safely is impaired by physical or mental illness, or if appropriate infection-control practices are breached. A health-care worker has no duty to disclose confidential medical information to a patient.

A similar protocol should be proposed by the Centers for Disease Control for the rest of the country.

David Wheeler is co-director of the Adult HIV Program at the University of Maryland Medical Center. Karen Rothenberg directs the Law and Health Care Program at the University of Maryland Law School. Deborah Weimer directs the AIDS Legal Clinic at the law school.

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