Subject: Court Rules Hospital Can Warn Patients of HIV-Positive Doctor Date: Published: 8/2/91 (116 lines) Source: Wall Street Journal. Copyright Dow Jones & Co. Inc. Law -- Legal Beat: Court Rules Hospital Can Warn Patients of HIV-Positive Doctor ---- By Stephanie Simon Staff Reporter of The Wall Street Journal A Pennsylvania appeals court ruled that a hospital can warn patients treated by a doctor who tested positive for the AIDS virus, despite the physician's interest in preserving his privacy. The decision could help clarify a murky and sensitive area: how to deal with health-care professionals infected with HIV, the virus that causes acquired immune deficiency syndrome. The ramifications, experts say, could extend far beyond the arena of AIDS litigation, affecting everything from hospital insurance rates to discrimination claims. In the Pennyslvania case, the court ruled that Hershey Medical Center and Harrisburg Hospital had demonstrated a "compelling need" to notify about 300 patients that they had come in contact with a resident physician who tested positive for HIV. The hospitals did not disclose the infected doctor's name to the patients, but they did disclose his identity to his colleagues in the obstetrics and gynecology departments. The hospitals filed a petition in June asking a state trial court to allow them to sidestep Pennsylvania's AIDS-testing confidentiality law. The court granted the request and the doctor appealed the ruling. The physician, identified in court papers as Dr. John Doe, is considering an appeal to the state supreme court, his attorney said. In applying the "compelling need" standard, the court ruled that although the risk of HIV transmission from doctor to patient is extremely low, it's significant enough to merit disclosure. The judges also invoked the "informed consent law," which requires physicians to tell patients of the risks involved in any medical procedure. "Surely it is no consolation to the one or two individuals who become infected after innocently consenting to medical care by an unhealthy doctor that they were part of a rare statistic," the judges wrote in their 27-page opinion. Attorneys for the hospitals couldn't be reached for comment. But in the case, they argued that it was the hospitals' duty to inform individuals who might have been exposed and to offer testing and counseling to any individual who sought them. The hospitals received more than 3,000 inquiries from patients after notices were sent out, even though the notices were sent to only 300 patients. A key issue in the case was how "significant" the risk of infection had to be to trigger the consent requirement in the informed-consent law. And civil rights lawyers immediately denounced the decision as a severe watering-down of the traditional meaning of "significant." "Significant risk has always been defined as `highly probable' or at least `somewhat probable,'" said Larry Gostin, director of the AIDS Litigation Project at the U. S. Public Health Service. "But now, the courts are construing it as `highly improbable but technically possible.' If they use the standard of `possible' instead of `probable,' it will make a huge difference in the law." The concept of "significant risk" is also widely used in wrongful-firing cases and environmental-liability disputes, Mr. Gostin said. For example, he said, any erosion of the meaning of the term could make it easier for a school to fire a teacher with tuberculosis because of her condition, even though scientists have established that the risk of a teacher's transmitting the disease to children in a classroom is negligible. The Pennsylvania case also could blaze new trails in the area of mandatory testing, attorneys said. By suggesting that physicians disclose their HIV status to satisfy informed-consent laws, the decision establishes a legal precedent that encourages compulsory HIV testing, several civil rights lawyers argued. "All across the country, the word will be going out from insurance companies to hospitals: If you want insurance from us, you're going to have to test all your doctors," said Scott Burris, counsel of the American Civil Liberties Union's AIDS and Civil Liberties Project. A few courts have grappled with the issue of mandatory testing, yielding wildly contradictory rulings. In Louisiana, a federal appeals court ruled that a hospital could require a nurse to take an HIV test. But in Nebraska, a judge rejected mandatory staff testing at a facility to treat mentally retarded patients. The law doesn't become any clearer for health-care professionals who admit to HIV infection. The New Jersey Superior Court ruled in April that Princeton Medical Center was not discriminating against an HIV-infected physician by requiring him to disclose his condition to patients. But the New York State Division of Human Rights recently ordered a medical center to reinstate a pharmacist who was fired when his employer discovered that he had tested HIV-positive. Adding to the confusion, federal and state lawmakers are jumping into the act with rules regulating the practices of HIV-infected health-care professionals. More than half the state legislatures are considering laws on the issue. In addition, health departments are offering their own guidelines, which often conflict with national guidelines set out by the Centers for Disease Control or the American Medical Association. The New York state Health Department plans to meet next week to consider forbidding physicians infected with the HIV virus from performing certain highly invasive procedures. "The law across the country is in a state of utter chaos," Mr. Gostin said. "Litigation focusing on health care professionals is the most difficult challenge courts have ever faced in the AIDS epidemic," he added. [This article is made available here by Dow Jones Co. for the personal and non-commercial use of callers to this bbs, in the hope that it will be of some help to those who are suffering from the disease and others who are seeking to help them.]