Health care workers and AIDS. HIV transmission in the health care environment.

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Health care workers and aids Thomas E. Margolis

a

a

Third‐year student at Southern Illinois University School of Law , Lesar Law Building, Carbondale, Illinois, 62901 Published online: 23 Jul 2009.

To cite this article: Thomas E. Margolis (1992) Health care workers and aids, Journal of Legal Medicine, 13:3, 357-396, DOI: 10.1080/01947649209510888 To link to this article: http://dx.doi.org/10.1080/01947649209510888

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Commentary

The Commentary section in the Journal of Legal Medicine presents, on a regular basis, articles written by students at Southern Illinois University School of Law, Carbondale, Illinois. This feature, initiated in 1981, is designed to allow outstanding law students who have special interests in law and medicine to pursue those interests through scholarly research and publication, thereby providing readers with high-quality and timely legal commentary. The following members of the Board of Editors of Southern Illinois University Law Journal have provided editorial review for this Commentary section: Jim B. Persels Editor in Chief John M. McCarthy Managing Editor Terry I. Bruckert Student Articles Editor W. Eugene Basanta Thomas B. McAffee Faculty Advisors Stephanie L. Grammer Secretary

The Journal of Legal Medicine, 13:357-396 Copyright © 1992 by Hemisphere Publishing Corporation

HEALTH CARE WORKERS AND AIDS Downloaded by [University North Carolina - Chapel Hill] at 12:55 18 February 2015

HIV TRANSMISSION IN THE HEALTH CARE ENVIRONMENT Thomas E. Margolis*

INTRODUCTION On December 8, 1991, 24-year-old Kimberly Bergalis of Fort Pierce, Florida died of complications associated with AIDS.1 The epidemic added another victim to its already staggering mortality statistics.2 Yet, Kimberly Bergalis symbolized more than just another statistic. Her death signalled the end of one of the most tumultuous periods in the 11-year AIDS legacy. Kimberly Bergalis marked the first documented case in which the human immunodeficiency virus (HIV) was transmitted from a health care

* Third-year student at Southern Illinois University School of Law. Address correspondence to Mr. Margolis at Southern Illinois University School of Law, Lesar Law Building, Carbondale, Illinois 62901. The author acknowledges with much gratitude the tireless and extensive editing provided by Gary A. Meadows. The author also acknowledges the following individuals for supplying invaluable information and insight: H. Alexander Robinson, Legislative Representative, A.C.L.U., Washington, D.C.; Kate Cauley, Director, Intergovernmental Health Policy Project, The George Washington University. 1 Levy, BC Cycle, Dec. 23, 1991, at Washington News Sec. The acquired immunodeficiency syndrome (AIDS) denotes the end stages of infection caused by the human immunodeficiency virus (HIV). HIV slowly destroys immune system cells, and health officials believe that once a person is infected, death is an inescapable result. An AIDS diagnosis is reached once a person develops certain conditions such as pneumocystis carinii pneumonia or Kaposi's sarcoma (a skin cancer). The average time between HIV infection and an AIDS diagnosis is 10 years. Brookmeyer, Reconstruction and Future Trends of the AIDS Epidemic in the United States, 253 SCIENCE 37, 38 (July 5, 1991). 2 By the end of 1991, the Centers for Disease Control (CDC) reported that AIDS had caused 133,232 deaths. The Second 100,000 Cases of Acquired Immunodeficiency Syndrome—United States, 267 J.A.M.A. 788 (1991). In addition, the health care agency had received reports of another 206,392 cases of AIDS. The CDC estimates that more than one million people are infected with HIV. Id.

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worker (HCW)3 to a patient.4 When federal health officials confirmed in January of 1991 that a Florida dentist had infected Bergalis and four other patients with HIV,5 the nation's HCWs became the focus for widespread concern. Bergalis blamed inadequate legislation for her infection.6 Specifically, she asserted that Florida state health officials should have disclosed the HIV-infected dentist's status to all of his patients.7 Accordingly, Bergalis lobbied for more restrictive federal laws that would help to identify HIV-infected HCWs and restrict their medical duties.8 Because of Ms. Bergalis' efforts, the public soon became very aware both of the potential for HCW-to-patient transmission of HIV and of the battle to pass laws designed to prevent this possibility. One public opinion poll indicated that 95% of those questioned believed that HIV-infected surgeons should be required to disclose their status to patients prior to performing surgery.9 Moreover, 65 % of these respondents said that they would discontinue all treatment with an HIV-infected HCW.10 In response to these concerns, several lawmakers introduced legislation that was designed to reduce the risks of iatrogenic transmission of HIV." For example, one measure would have subjected HCWs who knowingly concealed their HIV status from a patient to a minimum of 10 years in prison.12 Another proposal would have required that HCWs who are involved in invasive procedures must undergo HIV testing and disclose their status to their patients prior to an invasive procedure.13 Shortly after the introduction of these measures, the National Commission on AIDS published a comprehensive analysis of the AIDS epidemic and listed 30 recommendations for the President and Congress to consider in halting the epidemic.14 Significantly, the Commission's 30th recommendation stated that "[e]lected officials at all levels of government 3

For purposes of this commentary, the term HCW encompasses any person who is directly involved "with patients or with blood or other body fluids from patients in a health-care setting." Centers for Disease Control, Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 MORBIDITY & MORTALITY WEEKLY REP. 3 (Aug. 21, 1987).

4

See Centers for Disease Control, Update: Transmission of HIV Infection During an Invasive Dental Procedure—Florida, 40 MORBIDITY & MORTALITY WEEKLY REP. 21 (Jan. 18, 1991).

5

Id. See "I Blame Every One of You Bastards," NEWSWEEK, July 1, 1991, at 52. 7 Id. 8 See infra notes 38-40 and accompanying text. 9 Kantrowtiz, Springen, McCormick, Reiss, Hager, Denworth, Bingham, & Foote, Doctors and AIDS, NEWSWEEK, July 1, 1991, at 49. 10 Id. 11 Iatrogenic transmission of HIV denotes the transmission of the virus from a HCW to a patient. See 6

TABER'S CYCLOPEDIC MEDICAL DICTIONARY 703 (14th ed. 1983). 12 13 14

See infra notes 43-59 and accompanying text. See infra notes 83-118 and accompanying text. NATIONAL COMMISSION ON ACQUIRED IMMUNE DEFICIENCY SYNDROME, AMERICA LIVING WITH AIDS

(1991) (on file with author). The National Commission on AIDS is a "15-member commission


HEALTH CARE WORKERS AND AIDS

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have the responsibility to be leaders in this time of health care crisis and should exercise leadership in the HIV epidemic based on sound science and informed public health practices."15 In light of this recommendation, this commentary reviews some of the potential costs and benefits of the various HCW- and AIDS-related measures that have been proposed by Congress and various state legislatures. Section I discusses the first documented case in which a Florida dentist transmitted HIV to five of his patients. Section II surveys federal legislation that is designed to prevent the transmission of HIV in the health care setting. It further analyzes the rationales underlying each of these measures. Section III surveys current and proposed state legislation that parallels federal attempts to battle HIV transmission in the health care environment. Finally, section IV reviews alternative proposals to both minimize the risk of HIV transmission and to protect HCWs should they become infected. I. THE FIRST DOCUMENTED CASE OF HCW-TO-PATIENT TRANSMISSION OF HIV Since the beginning of the AIDS epidemic, the medical community recognized than an HIV-infected HCW could infect a patient with the deadly virus.16 By 1990, the Centers for Disease Control (CDC) projected that between 13 and 128 patients who received medical treatment between 1981 and 1990 would be infected with HIV by their HCWs.17 Thus far, however, health officials have documented only one case in which HIV was transmitted from a HCW to a cluster of five patients.18 This first documented case became the impetus for a plethora of proposed federal and state legislation. Accordingly, this highly publicized occurrence requires a thorough review. [that] was created by federal statute to advise Congress and the White House on the development of a 'consistent' national AIDS policy." Cimons & Stewart, Panel Says U.S. Apathy Harms Fight on AIDS, L.A. Times, Sept. 26, 1991, at Al. For a more complete description of the history of the Commission, see Melillo, Whatever Happened to AIDS?: The National Commission Prepares a Status Report of the Epidemic, Wash. Post, Sept. 24, 1991, at Z10. 15 NATIONAL COMMISSION ON AIDS, supra note 14, at 9. 16 Prior to the Kimberly Bergalis incident, both the medical and legal community were formulating various legislative policy proposals. See, e.g., Gostin, HIV-infected Physicians and the Practice of Seriously Invasive Procedures, 19 HASTINGS CENTER REP. 32 (1989); Gostin, Hospitals, Health Care Professionals, and AIDS: The "Right to Know" the Health Status of Professionals and Patients, 48 MD. L. REV. 12 (1989); Keyes, Health-Care Professionals with AIDS: The Risk of Transmission Balanced Against the Interests of Professionals and Institutions, 16 J.C. & U.L. 489 (1990); Rothenberg, AIDS: Creating a Public Health Policy, 48 MD. L. REV. 93 (1989). 17 Conference Consensus Opposes Restrictions on Health Care Workers, 4 AIDS UPDATE 28, 30 (Mar. 1991). 18 See Centers for Disease Control, supra note 4.


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In July of 1990, the CDC reported the possibility that a woman who was diagnosed with AIDS had been infected with HIV during a dental procedure.19 Six months later, the CDC confirmed this report and identified four other patients who had similarly been infected.20 Kimberly Bergalis, the young woman described in the CDC's 1990 report, was the first of five individuals to have been infected with HIV by a HCW. Before Kimberly Bergalis became a household name, she was a college student at Florida State University.21 She was referred to her dentist, Dr. David J. Acer, by CIGNA, her mother's prepaid health program.22 In December of 1987, when Bergalis was 19, Dr. Acer extracted two of her teeth.23 Two years after the procedure,24 and following several other illnesses,25 Bergalis was diagnosed with pneumocystis carinii pneumonia (PCP).26 After an exhaustive investigation of Bergalis' personal life,27 the

19

Centers for Disease Control, Possible Transmission of Human Immunodeficiency Virus to a Patient During an Invasive Dental Procedure, 39 MORBIDITY & MORTALITY WEEKLY REP. 4 8 9 (July 2 0 , 1990). Although the most likely cause of infection during a dental procedure is through a blood contact, the specific mechanism of infection in this case remains unknown. However, many experts contend that poor infection control practices caused the HIV infection of the five dental patients. For a discussion of methods that may help enhance infection control, see infra notes 252-60 and accompanying text.

20

See Centers for Disease Control, supra note 4 . T h e four other infected patients included Barbara Webb, a 65-year-old retired teacher; Richard Driskill, a 31-year-old factory worker; Lisa Shoemaker; and, John Yecs, a laborer. Garrett, Dentist's Lethal Legacy, Gave AIDS Virus to Patients in Florida, Newsday, Aug. 18, 1991, at 4 . Id. Id. It was this referral from CIGNA to Dr. Acer that resulted in an undisclosed but purportedly large out-of-court settlement for Kimberly Bergalis. Telephone Interview with Robert Montgomery, attorney for Kimberly Bergalis (Oct. 2 , 1991). In addition, Bergalis received an out-of-court settlement of $1 million from C N A , Dr. Acer's malpractice carrier. Id. Garrett, supra note 2 0 . Specifically, Bergalis had " t w o maxillary molars extracted under local anesthesia." Centers for Disease Control, supra note 19, at 489. Because the average amount of time between HIV infection and a diagnosis of AIDS is 10 years, the C D C found it significant that Bergalis had been diagnosed with AIDS only two years after her HIV infection. The probability that an individual will be diagnosed with AIDS two years after HIV infection is only two percent. Brookmeyer, supra note 1, at 3 8 . Four months after the extraction procedure, "Bergalis developed enlarged tonsils, fever, throat ulcers and swollen lymph nodes in her throat." Garrett, supra note 2 0 . Id. At the time Bergalis was diagnosed, P C P was a conclusive indicator of AIDS. In addition, the C D C listed 22 other specific opportunistic infections that were used to determine an AIDS diagnosis. Since that time, however, the C D C has expanded its AIDS definition to include CD4 lymphocyte cell counts. C D 4 lymphocytes are " t h e primary target cell for HIV infection, and a decrease in the number of these cells correlates with the risk and severity of HIV-related illnesses." CENTERS

21 22

23

24

25

26

FOR DISEASE C O N T R O L , 1992 REVISED CLASSIFICATION SYSTEM FOR H I V INFECTION AND EXPANDED A I D S SURVEILLANCE C A S E DEFINITION FOR ADOLESCENTS AND ADULTS (Draft 1 N o v . 15, 1991) (on

file with author). 27

The C D C went to great lengths in its attempt to rule out the possibility that Bergalis' HIV infection occurred during a dental procedure. T h e agency spent 2 0 months and in excess of $1 million investigating the Florida dentist. F o r a comprehensive discussion of the C D C ' s investigation into the Bergalis family's personal life, see Garrett, supra note 2 0 .



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CDC ruled out all the risk factors normally associated with AIDS.28 Accordingly, the absence of any other explanation strengthened the inference that Bergalis' dentist was the only possible source of her HIV infection.29 To confirm that the Bergalis and the other patients' HIV strain was the same strain as Dr. Acer's, the CDC ordered DNA sequencing tests. The tests established that there was "99.994 percent certainty that he [Dr. Acer] had the same rare strain of the virus as did the five patients."30 The CDC noted, however, that although it appeared that the infection occurred through blood-to-blood contact during invasive dental procedures, the HIV was conceivably transmitted through a mechanism other than Dr. Acer's blood.31 Because of the lingering questions about the mode of HIV transmission, several theories emerged.32 However, the prevailing theory among health officials postulated that inadequate infection control caused the infections. This conclusion was reached after the CDC investigated Dr. Acer's infection control policies. The investigation revealed a number of serious breaches of standard infection control procedures. For example,

28

29

30

32

Id. Risk factors include homosexuality, bisexuality, intravenous drug use, and multiple sexual partners. Id. Id. Dr. Acer learned of his HIV infection in 1986. He was treated for the illness under an alias for fear that he would lose his dental practice if his patients learned of his infection. His identity was disclosed to Florida health officials in August of 1987 when he was diagnosed with AIDS. Thus, officials knew of his infection four months before he performed the dental procedure that resulted in Kimberly Bergalis' HIV infection. Id. Smothers, Where a Dentist Died of AIDS, Wariness Remains, N.Y. Times, Dec. 2, 1991, at A12. The use of D N A sequencing is controversial. Indeed, the C D C cautioned that the " u s e of D N A sequencing for this purpose is new, and there is a paucity of sequence data pertaining to the HIV-1 viruses of sex partners and other epidemiologically related patients." Centers for Disease Control, supra note 19, at 4 9 1 . Centers for Disease Control, supra note 4 , at 27. Several theories regarding the actual mechanism of transmission of HIV by Dr. Acer to his patients have been postulated: (1) Acer intentionally added his own blood to a local anesthetic which was then injected into the five infected patients. (The C D C cannot rule this possibility out because it did not comprehensively study Acer's psychological profile. By all accounts, however, Acer was reported to be a "gentle and caring man.") (2) Acer had sex with his patients, either consenually or while the patients were under general anesthesia. (This possibility has been rejected because each patient denied having sex with Acer, and none received general anesthesia). (3) The most generally accepted theory among scientists is that the virus was transmitted as a result of poor sterilization and infection techniques. For example, the C D C reported that Acer's office had no established infection control policies. In addition, gloves were occasionally reused, masks were changed infrequently! and autoclaving (high pressured sterilization technique) was performed only when time allowed and only on certain instruments. Finally, Acer was himself a patient who had prophylaxis (teeth cleaning) performed by his own staff of hygientists. See Garrett, supra note 20; Altaian, The Doctor's World: An AIDS Puzzle: What Went Wrong in Dentist's Office?, N.Y. Times, July 30, 1991, at C 3 ; Centers for Disease Control, supra note 4 .


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the health agency noted that Dr. Acer did not properly clean dental tools and that staff members would at times clean and reuse disposable dental supplies such as dental cleaning cups.33 Thus, Dr. Acer's dental equipment (his drill, for example) could have been contaminated with HIV either by an infected patient34 or the dentist himself because he was frequently a patient at his own office.35 The mechanism of HIV transmission to the five dental patients remains a central issue to health officials. Indeed, if Dr. Acer directly infected his patients through blood contact, restrictions on HIV-infected HCWs might be more easily justified. If the transmission was caused by inadequate infection controls, however, the focus for preventing future transmissions can be shifted away from HCWs toward a more general implementation of better infection control policies. Moreover, officials can defend against the need for restrictive legislation, like mandatory HIV testing for HCWs, by showing that the exceedingly small risk does not justify the costs involved in implementing such measures.36 Thus, in an attempt to procure more conclusive data on precisely how Dr. Acer infected his patients, the CDC began an unprecedented second investigation into the case.37 Kimberly Bergalis was the most outspoken of the five infected Florida dental patients. After she discovered that she had been infected with HIV by her dentist, Bergalis became an ardent proponent of mandatory testing laws for HCWs. She admonished lawmakers to introduce and support legislation that would impose strict HIV testing and disclosure requirements on HCWs.38 Because of Bergalis' nationwide lobbying efforts, the public soon became widely aware of the possibility of acquiring HIV from HCWs. For example, one poll revealed that 90% of respondents thought that all HCWs should be required to disclose their HIV status to their patients.39 Further,

33

Centers for Disease Control, supra note 4 , at 2 5 . Dr. Acer did not maintain any type of infection control plan. "Dental equipment, such as hand-pieces, prophylaxis angles, and air/water syringe tips, were not autoclaved but were either wiped with alcohol or immersed in a liquid chemical germicide at irregular intervals." Id. at 2 6 .

34

Acer reportedly performed dental work for at least 10 HIV-positive patients. Garrett, supra note 20. In addition, Dr. Acer "also treated intravenous drug users, referred by a local rehabilitation program, who are at high risk of being HIV-positive." Id. Centers for Disease Control, supra note 4 , at 26. See infra notes 89-94 and accompanying text. Altaian, supra note 32. Bergalis' lobbying efforts had an obvious impact as one member of the United States House of Representatives named a mandatory testing amendment after her. See infra text accompanying notes 81-82. Kantrowtiz, et al., supra note 9.

35 36 37 38

39


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51% believed that all HIV-infected physicians should be prohibited from practicing medicine.40 In short, Kimberly Bergalis helped create a new chapter in the AIDS epidemic. She proved that, regardless of the mechanism of infection, patients can become infected with HIV in the health care setting.


II. FEDERAL REACTIONS-FROM RIGHT TO LEFT A. Jesse Helms and the "Horsewhipping" Approach to HIV-infected HCWs In response to growing public concern about the possibility that HIV might be transmitted from a HCW to a patient, Congress quickly reacted. Two of the earliest legislative proposals were drafted by Senator Jesse Helms (R—N.C.). Helms' first proposal provided for criminal sanctions against HCWs who knowingly failed to disclose their HIV status to patients prior to treatment.41 The second proposal permitted physicians to test patients for HIV without patients' consent.42 1. The First Helms Amendment and the Criminalization Decision Senator Helms' first proposal established criminal sanctions for HCWs who knowingly failed to disclose their HIV status to patients. Specifically, the measure stated: Whoever, being a registered physician, dentist, nurse, or other health care provider, knowing that he is infected with the Human Immunodeficiency Virus, intentionally provides medical or dental treatment to another person, without prior notification to such person of such infection, shall be fined not more than $10,000, or imprisoned not less than ten years, or both. . . . The provisions of this section shall not be applicable in the case of a medical emergency in which alternative medical treatment is not reasonably available.43

Supporters of the bill argued that it provided HIV-infected HCWs with a strong incentive to inform their patients of their infected status prior to performing invasive procedures.44 Consequently, proponents asserted that this type of legislation would prevent future cases of iatrogenic trans40

id. See infra notes 43-59 and accompanying text. 42 The patient testing amendment No. 939 was attached to the Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriation Act, Fiscal Year 1992, H.R. 2608. See 137 CONG. REC. 11381 (daily ed. July 30, 1991). 43 The amendment No. 734 was attached to the Treasury, Postal Service and General Government Appropriations Bill, H.R. 2622, 102d Cong., 1st Sess. (1991). See 137 CONG. REC. S9778 (daily ed. July 11, 1991). 44 Price, AIDS Testing Likely to Pass, Wash. Times, Sept. 29, 1991, at A3. 41

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mission of HIV because patients would be likely to discontinue treatment with an HIV-infected HCW. Finally, Sen. Helms stated: Kimberly Bergalis's [sic] dentist had AIDS. He knew he had it. But he refused to notify his patients that he had AIDS. And now as Paul Harvey says, we know the rest of the story insofar as Kimberly. She doesn't have a chance so I don't think—I don't think a 10-year sentence is severe when you compare what these people are willing to do to their innocent patients, so don't talk . . . to me about 10 years being too severe. I'm so old fashioned that I believe in horse whipping. 45

In contrast, critics of the measure maintained that the proposed prison sentence and fines would constitute an excessive penalty, particularly when no transmission has occurred.46 Additionally, some health professionals asserted that while the bill did not explicitly mention mandatory HIV testing of HCWs, it did implicitly authorize mandatory testing.47 These experts reasoned that "liability questions created by the bill [would] force hospitals to require regular testing of their employees."48 Despite substantial criticism from the medical and legal community, however, only a handful of senators openly criticized the proposal. Senator Edward Kennedy (D—Mass.) was one of the bill's most vociferous opponents. He argued that "the amendment 'purports to give peace of mind to patients by terrorizing physicians and other health care workers,' but in fact does nothing to ensure the safety of patients and health care workers."49 Kennedy reasoned that HCWs would avoid being tested for HIV rather than face a possible sentence.50 Senator Kennedy further noted that the sanctions found in the Helms' measure might actually harm the public because they would provide HCWs with a disincentive to test for the virus.51 Instead, experts claimed that allowing HCWs to test for HIV without fear of reprisals would have several benefits. First, if a HCW knows that he or she is HIV-positive, the HCW may voluntarily refrain from performing procedures that would put

45

The MacNeil/Lehrer Nexis).

46

Id. See also AMERICAN M E D I C A L ASSOCIATION RESIDENT PHYSICIAN'S SECTION, HIV TESTING UPDATE

47

48 49

50 51

NewsHour

(PBS television broadcast, July 18, 1991) (available in LEXIS,

AND DISCRIMINATION BASED ON SERopositiviTY (1991) (on file with author). Gladwell, HIV Tests in the Health Profession: Some Groups Say Mandatory Screening's Benefits Wouldn't Justify Cost, Wash. Post, Sept. 11, 1991, at A 2 1 . Id. Pianin, Amendment Requires AIDS Disclosure: Senate Sets Penalties for Medical Workers, Wash. Post, July 19, 1991, at A 5 . The MacNeil/Lehrer NewsHour, supra note 4 5 . Id.



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the patient at risk of infection.52 Second, even if a HCW does not refrain from performing usual duties, the HCW may be inclined to pay closer attention to infection control policies." Thus, the public will benefit more if HCWs are not given a disincentive to voluntarily undergo HIV testing. Senator David Durenberger (R—Minn.) maintained that most HCWs would act in the best interest of their patients without the threat of punitive sanctions. Moreover, he concluded that a prison sentence would not provide much deterrence for a HCW who already has a fatal disease.54 Immediately before the Senate voted on the proposal, Senator Helms admonished his colleagues to "[v]ote as you please . . . and make whatever comment you want to, but I tell you the American people understand this issue. If this amendment goes down, a lot of questions are going to be asked when Senators get home, how come they voted against it."55 The Senate must have taken Mr. Helms' warning seriously because the bill passed by a vote of 81-18.56 However, one expert noted that the senators knew in advance of the vote that there was little chance that the bill would survive the House conference committee meeting.57 Further, voting for the bill "gave [the senators] . . . political cover where they couldn't get criticized for being too tough or too soft."58 The senators could not be criticized for being too tough because their constituents wanted swift action taken to prevent another case of HCW-to-patient transmission of HIV. Conversely, the lawmakers could not easily be criticized for being too soft because of the severity of the sanctions. As expected, however, the bill was eliminated in a House-Senate compromise.59 Some health care experts asserted that if any legislation were passed, it should be directed at patients rather than at HCWs.60 Indeed, while there have been five reported cases of iatrogenic transmission of HIV, the CDC

52

53

54 55 56 57

58

59

60

See, e.g., Letter from Chai Feldblum, Legislative Counsel for the American Civil Liberties Union, Washington, to William L. Roper, Director, Centers for Disease Control 1-2 (Apr. 18, 1991) (on file with author). 137 C O N G . R E C . S10345 (daily ed. July 18, 1991) (letter from the Council of State and Territorial Epidemiologists). 137 C O N G . R E C . S10340 (daily ed. July 18, 1991). The MacNeil/Lehrer NewsHour, supra note 4 5 . 137 CONG. R E C . S10363 (daily ed. July 18, 1991). Telephone Interview with H. Alexander Robinson, Legislative Representative for the American Civil Liberties Union (Oct. 17, 1991). World News Tonight with Peter Jennings (ABC television broadcast, July 18, 1991) (Dennis DeConcini (D—Ariz.) speaking) (available in LEXIS, Nexis). Price, supra note 4 4 , at A3 (Bob Maynes, spokesman for Senator Dennis DeConcini (D—Ariz.) speaking). For a discussion of the House-Senate Compromise, see infra notes 177-82 and accompanying text. Barnes, Rango, Burke, & Chiarello, The HIV-Infected Health Care Professional: Policies and Public Health, 18 LAW, M E D . & HEALTH CARE 3 1 1 , 322 (Winter 1990).

Employment

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reported that 47 HCWs have been infected with HIV by their patients.61 Nevertheless, Senator Helms' second proposal, which required mandatory patient testing, fared no better and was no less controversial.


2. The Second Helms Amendment—The Right to Test Patients Senator Helms' second proposal required states to establish legislation that would permit physicians to test a patient for HIV without the patient's consent prior to performing an exposure-prone invasive procedure. This rule would apply in all but emergency situations.62 Advocates of Helms' second proposal noted two benefits provided by the measure. First, a HCW who is aware of a patient's HIV infection prior to treatment or examination will take greater precautions during treatment. Hence, proponents argued that the number of occupationally-related incidents of HIV transmission from patient to HCW would be significantly reduced.63 Second, proponents of patient testing stated that the amendment increased the likelihood of identifying HIV-infected individuals when the infection is in its early stages.64 Accordingly, the use of available therapy options may not only reduce the symptoms of HIV illnesses but may also prolong the onset of full-blown AIDS.65 In contrast, critics cited several reasons why testing patients for HIV is counterproductive. First, opponents suggested that patient testing may 61

62

Melillo, Protecting Patients from Infection: Tests for Health Care Workers and Disclosure of Their HIV Status Still Debated, Wash. Post, Mar. 3 , 1992, at 2 7 . Senator Helms proposed amendment N o . 939 to bill H . R . 2608, Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, Fiscal Year 1992, 102d Cong., 1st Sess. (1991) on July 8, 1991. It provided in pertinent part that a state shall . . . certify to the Secretary of Health and Human Services that such State has in effect regulations, or has enacted legislation, to protect licensed health care professionals from contracting the human immunodeficiency virus. . . . The regulations . . . shall permit licensed health care professionals to require that, prior to the commencement of or during the conduct of an exposure prone invasive procedure, a patient may be tested for the etiologic agent for the human immunodeficiency virus. Such regulations . . . shall not apply in emergency situations when the patient's life is in danger. The result of tests conducted . . . shall be confidential and shall not be released to any other party without the prior written consent of the patient. The regulations . . . shall contain enforcement provisions that subject an individual who violates the provisions . . . to a $10,000 fine or a prison term of not more than one year for each violation. . . . [I]f a state does not provide the certification required . . . such state shall b e ineligible to receive assistance under the Public Health Service Act (42 U.S.C. 301 et seq.) until such certification is provided. 137 CONG. R E C . S11381 (daily ed. July 3 0 , 1991).

63 64 65

Barnes, et al., supra note 60, at 322. Angell, A Dual Approach to the AIDS Epidemic, 324 N E W E N G . J. M E D . 1498 (1991). According to the C D C , "these therapies delay the onset of illnesses . . . and may change the spectrum of illnesses found in HIV-infected persons." CENTERS FOR DISEASE CONTROL, supra note

26, at 5. See also Centers for Disease Control, Guidelines for Prophylaxis Against Pneumocystis Carinii Pneumonia for Persons Infected with Human Immunodeficiency Virus, 38 MORBIDITY & MORTALITY WEEKLY REP. (June 16, 1989).



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give HCWs a false sense of security because "HIV antibodies . . . usually do not appear until six weeks to 3 months, and in rare instances 6 months, following infection. During this 'antibody window,' the HIV test would be negative although the virus would be present."66 If patients tested negative for HIV antibodies, then HCWs might not feel compelled to use universal precautions, unknowingly exposing themselves to the virus.67 Hence, the CDC advocated that HCWs should treat every contact with blood or body fluids as a possible source of HIV infection.68 Second, critics maintained that compulsory patient testing would unavoidably result in discrimination against HIV-infected patients in the health care setting. In one survey, for example, 18% of the respondents stated that if they knew a patient was HIV-infected, they would refer the patient to another medical facility.69 Further, eight percent of surgeons polled admitted that they would either refuse to operate on an HIV-infected patient or would find a reason not to perform the procedure.70 Finally, 81 % of the surgeons polled said that they would refuse to perform an elective procedure on an HIV-infected individual.71 Third, opponents of patient testing argued that the proposal would be extremely costly.72 One study concluded that widespread testing could cost several hundred million dollars annually.73 In addition, the study noted that aside from the increased expense, inevitable administrative problems would need to be addressed. These would include, among other things, monitoring and reporting test results and providing strict confidentiality control mechanisms.74

66

67

68 69

70 71 72 73

74

AMERICAN M E D I C A L ASSOCIATION REPORT OF THE BOARD OF TRUSTEES, HIV

AND PHYSICIANS

6

(1991) (on file with the author). Universal precautions include the use of disposable gloves, protective eyewear, and full body gowns. See Centers for Disease Control, supra note 3 , at 5. Shelley & Howard, A National Survey of Surgeon's Attitudes About Patients with Human Immunodeficiency Virus Infections and Acquired Immunodeficiency Syndrome, 127 A R C H . SURG. 206 (Feb. 1992). Id. Id. Gladwell, supra note 4 7 . Id. The figures produced were based on two assumptions. The first assumption was based on testing all patients admitted to the hospital. The second assumption was based on testing only patients who were undergoing "exposure-prone" procedures. The figures were also based on an estimate of $20.00 per test. This figure was slightly higher than the cost of testing already performed by the army at a cost of $10.00 per test. Id. However, proponents of patient testing argue that testing would not be prohibitively expensive. They note that because "hospitals already test quite frequently for HIV . . . if done on a large scale, the costs of HIV testing would fall substantially." Id. Id. In contrast, patient testing advocates point out that because hospital patients are already subjected to a variety of blood tests before they undergo surgery, compulsory testing would not place an undue administrative burden on medical facilities. Id.

368

MARGOLIS


Fourth, patient testing opponents criticized the omission of language in the Helms measure regarding pre-test and post-test counseling. Specifically, one patients' rights advocate argued: Testing patients is a counterproductive public health measure because it completely ignores the medical needs of the patient tested. The amendment contains absolutely no provisions for medically-necessary pre- and post-test counseling of patients, nor does it make any provision to assure access to health care for those who test positive. Forcing onto already ill persons this emotionally traumatic testing process without attention to the patient's medical needs is an abdication of medical responsibility.75

Similarly, health officials maintained that the need for counseling patients about HIV and their test results is critical.76 Because of its potentially devastating impact on the patient, HIV testing is readily distinguishable from other blood tests that are routinely administered. For example, when a patient is informed that he or she is HIV-positive, the knowledge of imminent death is often traumatic.77 One commentator noted that "men aged twenty to fifty-nine with HIV in New York City are at least sixty-six times more likely to commit suicide than the general population of that city."78 Finally, critics maintained that the patient's informed consent should be a prerequisite to testing that patient for HIV. One commentator suggested that "[a] patient who can prove that he or she would have refused testing if given an opportunity would probably be able to bring a successful informed-consent claim in most jurisdictions."79 Like his first bill, Senator Helms' patient testing proposal was swiftly adopted by the Senate.80 Again, however, the measure was eliminated in compromise negotiations in the House conference committee.81 Despite the defeat of both Helms' amendments, the issues of disclosure and testing were still far from being resolved. Indeed, one legislator introduced a proposal that required HCWs both to undergo HIV testing and to disclose a positive HIV status to patients. 75

76 77

Memorandum from H . Alexander Robinson, Legislative Representative, American Civil Liberties Union, Washington, D . C . to Interested Persons 2 (Aug. 2 , 1991) (on file with author) (emphasis omitted). Gostin, Hospitals, supra note 16, at 38. Id.

78

Id.

79

Brennan, Testing Patients, Health Care Workers, or Both, 324 N E W E N G . J. M E D . 1504, 1505 (1991). In contrast, one legal commentator noted that "the practice in medicine for many years has been to perform a whole battery of blood tests without obtaining consent for each particular test." Gostin, Hospitals, supra note 16, at 36. 137 CONG. R E C . S11338-39 (daily ed. July 30, 1991). Telephone Interview with H. Alexander Robinson, supra note 57.

80 81


369


B. The "Bergalis Bill"—Moving the HIV Testing and Disclosure Issues from the Context of Civil Rights to the Public Health Although both of Senator Helms' amendments were deleted in conference committees, several legislators believed that the issues of HIV testing and disclosure by HCWs of their HIV status merited further action. Furthermore, some lawmakers and health professionals argued that testing and disclosure opponents inappropriately focused on the civil rights of HCWs.82 Thus, in an effort to move the issues of HIV testing and disclosure from the "civil rights context" to the "public health context," Representative William Dannemeyer (R—Cal.) introduced the "Kimberly Bergalis Patient and Health Provider Protection Act of 1991."83 This bill addressed the issues of HIV testing and disclosure in three ways. First, it provided for HIV testing of patients at the discretion of a physician prior to performing certain invasive procedures.84 Second, the bill compelled HCWs to disclose their positive HIV status to patients prior to performing invasive procedures.85 Third, it required mandatory HIV testing of HCWs who were involved in invasive procedures.86 This section reviews several of the benefits and costs of the mandatory testing provision of the "Bergalis Bill." Like Senator Helms, Representative Dannemeyer maintained that Kimberly Bergalis and four other dental patients epitomized the need for mandatory testing of HCWs.87 Dannemeyer and others claimed that by requiring HCWs to undergo compulsory HIV testing, further cases of iatrogenic transmission of HIV could be prevented.88 There were three major areas of controversy surrounding the involuntary testing aspect of the "Bergalis Bill." These included the actual risk of harm, the costs associated with mandatory testing, and the frequency with which HCWs should be tested. 82

83

84

85

86 87

88

See, e.g., Hearing of the Health and Environment Subcommittee of the House Energy and Commerce Committee, FEDERAL NEWS SERV., Sept. 2 6 , 1991 (available in LEXIS, Nexis). The bill, H . R . 2788, 102 Cong., 1st Sess. (1991) was introduced on June 2 6 , 1991. F o r the full text of the bill, see 137 C O N G . R E C . E2376 (daily ed. June 2 6 , 1991). Id. at E2378. F o r a discussion of the costs and benefits of patient testing without a patient's consent, see supra notes 62-81 and accompanying text. 137 C O N G . R E C . E2377. For an analysis of the disclosure issue, see infra text accompanying notes 134-38. 137 C O N G . R E C . E2377. Id.

Id. Mandatory testing for HIV is by no means a novel approach to the AIDS epidemic. Indeed, since 1985, all entrants to the military have been required to undergo HIV testing. Centers for Disease Control, Human Immunodeficiency Virus Infection in the United States: A Review of Current Knowledge, 36 MORBIDITY & MORTALITY WEEKLY REP. 5 (Dec. 18, 1987). In addition, "the federal prison system and 19 state prison systems conduct mandatory HIV antibody screening of all incoming inmates, all current inmates, and/or all inmates at release." NATIONAL CONFERENCE OF STATE LEGISLATURES, HIV/AIDS FACTS TO CONSIDER 7 (Feb. 1992) (on file with the author).

370

MARGOLIS


1. The Risk of HIV Transmission from a HCW to a Patient Medical experts noted that while the risk of HCW-to-patient transmission of HIV is not zero, it is extremely remote.89 The CDC projected that the risk of HIV transmission from a HCW to a patient who is undergoing an invasive surgical procedure is between one in 41,667 and one in 416,667. With regard to invasive dental procedures, the CDC estimated the risk to be between one in 263,000 and one in 2,630,000 cases.90 In a public news conference, an AM A executive placed these figures in perspective. The worst scenario, the worst case, the highest risk is that a surgeon who's HIV positive would likely infect 1 patient in 42,000 operations. That's the worst case. The least case is 1 in 420,000 cases. Now the average surgeon does about 300 cases a year. So, if an HIV-infected surgeon were going to infect a single patient, he would have to work 140 years before he infected a single patient in the high risk scenario. In the low risk, you'd have to work 1,400 years. There was an immediate conclusion that the risk therefore is greater than zero, but nobody knows exactly how much and may very well be immeasurable.91

In addition to CDC statistics, critics of the "Bergalis Bill" also relied on "look back studies"92 for the proposition that the risk of iatrogenic transmission of HIV was too small to justify restrictions on HCWs. By November of 1991, in more than 70 formal and informal look back studies, 9,000 patients of HIV-infected HCWs were themselves tested for HIV.93 None of these patients were found to have been infected by their HCW.94 Finally, opponents of the "Bergalis Bill" noted that patients face far 89

90

91

92

See, e.g., Daniels, HIV-infected Professionals, Patients Rights, and the "Switching Dilemma," 267 J . A . M . A . 1368 (1992) (noting that the risk of HIV infection from a surgeon is "only one-tenth the chance of being killed by lightning, one-fourth the chance of being killed by a bee, and half the chance of being hit by a falling aircraft"). Hammell & Florsheim, A Cure that Fails: Mandatory HIV Testing of Health Care Providers (unpublished manuscript, on file with author). Press Conference, Centers for Disease Control and Others, FEDERAL N E W S SERV., Aug. 2 9 , 1991 (Roy Schwartz, Senior Vice-President for Medical Education and Science at the A M A speaking) (available in LEXIS, Nexis). Similarly, two physicians estimated the risk of HIV infection during a surgical procedure at one in 21 million per hour. Lowenfels & Wormser, Risk of Transmission of HIV from Surgeon to Patient, 325 N . E N G . J. M E D . 888 (1991). These physicians further illustrated their point by suggesting that the likelihood of a patient becoming infected with HIV during a one hour surgical procedure a r e about the same a s the odds of being killed in an accident on the way to the hospital. Id. at 889. Look back studies assess the HIV status of former patients of HIV-infected HCWs. Further, these studies attempt to determine the source of HIV-positive patients' infections.

93

AMERICAN M E D I C A L ASSOCIATION REPORT O F THE BOARD OF TRUSTEES, supra note 6 6 , at 18.

94

Id. However, these statistics are far from conclusive. As one expert on AIDS in the health care setting cautions: These studies . . . are inadequate even by their own admission. Fewer than one third of any of the physicians' patients in the studies were tested; only a few of the many thousands of



371

greater risks of harm from HCWs than HIV infection.95 Health commentators asserted that conditions such as substance abuse, fatigue, and stress cause harm to a far greater number of people than the risk of HIV transmission.96 Nevertheless, HCWs with these problems are not required to disclose them to patients. In contrast, advocates of the "Bergalis Bill" asserted that the available data demonstrated that the risk of HIV transmission from a HCW was significant enough to justify restrictive measures.97 Although the CDC projections demonstrate that the risk of HIV transmission is highly remote,98 advocates for the "Bergalis Bill" pointed out that the agency had speculated that between 13 and 128 individuals were infected with HIV by their HCWs between 1981 and 1990.99 Proponents of the bill further relied on "sharp injury" and "glove tear" studies100 to justify compulsory HIV testing for HCWs. Medical authorities concurred that the most prevalent route of HIV transmission in the health care setting was through percutaneous cuts.101 One physician stated that "because it is remotely possible that there could be an exchange of

95 96

infected surgeons have been studied; and no prospective studies have been undertaken. Given the low rate of transmission of HIV . . . it is not surprising to see so few cases emerge. But the question remains how many cases of transmission have actually occurred and will continue to occur. Gostin, CDC Guidelines on HIV or HBV-Positive Health Care Professionals Performing ExposureProne Invasive Procedures, 19 LAW, M E D . & HEALTH CARE 140, 141 (1991). Hammell & Florsheim, supra note 9 0 , at 2 . Barnes, et a l . , supra note 6 0 , at 3 1 5 . See also Letter from Chai Feldblum, supra note 5 2 , at 3-5. " S o m e estimates have put the number of physicians impaired by drug and alcohol u s e , lack of training or other physical conditions as high as 10 percent (Washington Post 5/27/91). Between 150,000 and 300,000 people are injured or die every year in United States Hospitals due to physician negligence or incompetence." 137 C O N G . R E C . S10347 (daily ed. July 18, 1991) (letter from the A C L U ) . As one commentator noted, however, although a H C W might cause injury to a patient because of conditions like substance abuse, death is not the universal outcome as it is with HIV transmission. Gostin, The HIV-Infected Health Care Professional: Public Policy, Discrimination, and Patient Safety,

18 LAW, M E D . & HEALTH C A R E 3 , 6 (1991).

97

See, e.g., Closen, When a Doctor Has AIDS, NAT'L L . J . , Sept. 9, 1991, at 15. 98 See supra notes 89-94 and accompanying text. 99 Id. But see Taub, Don't Put L i m i t s on HIV-Positive Doctors, NAT'L L . J . , Jan. 13, 1992, at 12 (Professor Taub argued that the C D C ' s calculation " w a s a mathematical extrapolation from a series of questionable assumptions, not a reference to actual cases"). 100 A s the term indicates, sharp injury studies accumulate data on the frequency and mechanisms of sharp injuries to H C W s during various procedures. Similarly, glove tear studies collect data on the frequency of glove tears during assorted procedures. Not surprisingly, glove tears are often contemporaneous with sharp injuries. See, e.g., Wright, McGeer, Chyatte, & Ransohoff, Mechanisms of Glove Tears and Sharp Injuries Among Surgical Personnel, 2 6 6 J . A . M . A . 1668 (1991). Health organizations extrapolate this data for use in calculating the risks of transmitting viruses like HIV. See Gostin, supra note 9 4 . 101 Percutaneous is defined as "[e]ffected through the skin." TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1067 (14th ed. 1981).

372

MARGOLIS


blood during a medical procedure, patients have a right to know whether a doctor or nurse who performs invasive procedures is infected with HIV."102 In fact, blood exchanges during surgery are a common occurrence. One AIDS expert stated: [A] surgeon will cut a glove in approximately one out of every four cases, and probably sustain a significant skin cut in one out of every forty cases. . . . Assuming that the surgical patient's risk is exceedingly low . . . the risk that one of [the surgeon's] patients will contract HIV becomes more realistic the more operations he performs . . . . Patients, of course, cannot expect a wholly risk-free environment in a hospital. But there does come a point where the risk of a detrimental outcome becomes sufficiently real . . . . 1 0 3

Accordingly, testing proponents argued that because the risk of HIV transmission is sufficiently real, patients have a right to know the HIV status of their HCWs.104 2. Costs Involved in Compulsory Testing of HCWs Critics of the "Bergalis Bill" suggested that mandatory testing of HCWs was unjustified not only because of the small risk but also because of the enormous costs involved.105 These opponents also maintained that testing gave rise to significant additional costs, including discrimination against HIV-infected patients.106 Although it was difficult to precisely calculate the total direct dollar costs associated with testing all HCWs who are involved in invasive procedures, studies demonstrated that the expense would be substantial. One AIDS rights group posited that the foreseeable annual cost of testing HCWs for HIV would exceed $200 million.107 In contrast, another study estimated that the foreseeable expense of testing HCWs would be $1.5 billion.108 In addition to direct financial costs, critics of the "Bergalis Bill" also alleged that involuntary HIV testing of HCWs would result in a significant "human cost." Experts suggested that involuntary HIV screening of HCWs 102 103 104

Angell, A Dual Approach to the AIDS Epidemic, 324 N E W E N G . J. M E D . 1498, 1499-1500 (1991). Gostin, HIV-infected Physicians, supra note 16, at 3 3 . See Closen, A Call for Mandatory HIV Testing and Restriction of Certain Health Care Professionals, 9 ST. LOUIS U . P U B . L . REV. 4 2 1 (1990).

105

See, e.g., Gerberding, Expected Costs of Implementing a Mandatory Human Immunodeficiency Virus and Hepatitis B Virus Testing and Restriction Program for Healthcare Workers Performing Invasive Procedures,

106

12 J . INFECT. CONTROL & HOSP. EPIDEMIOLOGY 4 4 3 (1991).

Barnes, et a l . , supra note 9 6 , at 3 2 0 . 107 Gladwell, supra note 4 7 (estimated b y the AIDS Action Council). This estimate assumed that one million H C W s would b e tested quarterly for HIV. Id. 108 Id. In making this estimation, the Service Employees Union (a union comprised of approximately 400,000 HCWs) assumed that almost four million H C W s would undergo HTV testing. Id.



373

might cause HCWs to discriminate against HIV-infected patients.109 Medical experts further predicted that HCWs may be reluctant to work at medical facilities in cities with a high incidence of AIDS.110 HCWs are already fearful of treating AIDS patients for fear of contracting the deadly virus.111 If HCWs are required to undergo HIV testing and to disclose their status if HIV-positive, HCWs "would not only become ill; they would also incur stigma, loss of professional practice and loss of occupational prestige. They would be occupationally punished for having taken the risk of treating infected patients."112 Finally, opponents of compulsory HCW testing maintained that implementation of forced testing would divert resources from what many experts consider to be more effective hospital infection control programs.113 In fact, one researcher concluded that the cost of a testing policy for HIV-positive HCWs at a San Francisco hospital would almost equal a typical hospital's infection control budget.114 Notably, many medical authorities agreed that strengthening infection control programs was the most effective means of preventing iatrogenic transmission of HIV.115 Therefore, opponents of compulsory HIV testing for HCWs argued that large allocations of funds for testing would substantially limit the funding available for implementing and enforcing the more effective means of HIV infection control. 3. Frequency of Compulsory HIV Testing for HCWs Even if it could be agreed that Congress should implement mandatory testing of HCWs, the question of how often to test raises additional questions as to the efficacy of the "Bergalis Bill." As noted previously, when tests are conducted for HIV antibodies, there is a "window period" during which an individual's HIV antibodies may not be detected. This "window period" may last as long as six months after infection.116 C. Everett Koop, Surgeon General under former President Reagan, summarized the problem by explaining:

109

Conference Consensus, supra note 17, at 3 2 . Id. (Frank Lewis, spokesman for the American College of Surgeons speaking). There a r e a number of such cities, including N e w York and Miami. " F o r example, in some hospitals in N e w York City, one out of every 2 0 patients is infected with HIV, compared with Greater Minnesota, where only about one of every 120,000 people is infected." 137 C O N G . R E C . S10360 (daily e d . July 18, 1991). 111 Gostin, Hospital, supra note 16, at 4 2 . 112 Barnes, et a l . , supra note 9 6 , at 3 2 1 . 113 Gladwell, supra note 4 7 . 114 Id. 110

115

A M E R I C A N M E D I C A L ASSOCIATION R E P O R T O F THE BOARD O F T R U S T E E S , supra

116

See supra text accompanying note 6 6 .

note 6 6 , at 4 .

374

MARGOLIS


If I am your surgeon and present you with a certificate that I got two months ago that said I am HIV negative, you have to know what my sexual and drug-abusing behavior was for six-months before that test was taken, and everything I've done from the time I got the test until yesterday.117

Thus, testing opponents charged that the unreliability associated with testing significantly diminished the benefits of mandatory testing.118 4. The Outcome of the Compulsory Testing Bill Representative Dannemeyer proposed HIV testing of both patients and HCWs. Like the two Helms amendments, however, Dannemeyer's measure was eliminated in subcommittee.119 The legislation might have withstood scrutiny if it had offered greater assurances of preventing HIV transmission in the health care setting. Like the difficulties associated with discovering a cure for AIDS, there is no simple and foolproof solution to this problem. Amidst the debate over compulsory HIV testing and disclosure by HCWs of their HIV status, experts universally agreed on one method of controlling the spread of HIV in medical facilities. That method was the implementation and enforcement of strict infection control guidelines and universal precaution standards. These concepts were the subject of two additional legislative proposals that were overwhelmingly approved by Congress and later became law. C. The Compromise Proposals Emphasizing Infection Control / . The Dole-Hatch Proposal In an effort to move away from the mandatory testing quagmire of controversy and criticism that bogged down the Helms and Dannemeyer amendments, Senators Orrin Hatch (R—Utah) and Robert Dole (R—Kan.) co-sponsored a Senate leadership amendment in July of 1991.120 The mea-

117

Press Conference, supra note 9 1 . Id. 119 Telephone Interview with H . Alexander Robinson, supra note 57. 120 This amendment, N o . 7 8 1 , was attached to the Treasury, Postal Service and General Government Appropriations Bill, H . R . 2622, 102d Cong., 1st Sess. (1991). 137 CONG. R E C . S10348 (daily ed. July 18, 1991). Other sponsors included Senators George Mitchell (D—Me.) and Edward Kennedy (D—Mass.).

118



375

sure required each state to adopt CDC or comparable guidelines or face a substantial loss of federal funds.121 The CDC guidelines were established primarily to protect patients from iatrogenic transmission of HIV.122 Indeed, the first recommendation stated: "All HCWs should adhere to universal precautions."123 Another guideline suggested that HIV-infected HCWs should refrain from performing exposure-prone procedures124 or seek counsel from a review panel.125 The guideline further stated that if the review panel agreed to allow a HCW to continue performing certain procedures, that HCW would be required to inform patients prior to the procedure.126 Although the universal precautions aspect of the CDC's guidelines garnered virtually unanimous agreement among health experts, the additional recommendations advocating some restrictions on HIV-infected HCWs caused much controversy. Unlike the "Bergalis Bill," the Dole-Hatch proposal explicitly rejected the concept of mandatory HIV testing of HCWs.127 However, the 121

122

The measure required that a State shall, not later than 1 year after . . . this act, certify to the Secretary that such State has in effect regulations, or has enacted legislation, to adopt the guidelines issued by the Centers for Disease Control concerning recommendations for preventing the transmission, by health care professionals, of the human immunodeficiency virus . . . to patients during exposure prone invasive procedures. . . . Failure to comply with such guidelines, except in emergency situations where the patient's life is in danger, by a health care professional shall be considered as the basis for disciplinary action by the appropriate State licensing agent. [I]f a State does not provide the certification required . . . within the 1-year period . . . such State shall be ineligible to receive assistance under the Public Health Service Act (42 U.S.C. 301 et. seq.). 137 CONG. REC. S10348 (daily ed. July 18, 1991). Centers for Disease Control, Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures, 4 0 M O R B I D I T Y & M O R T A L I T Y W E E K L Y R E P . 1 (July 12, 1991).

123

Id. at 5. 124 T h e C D C defined the term exposure-prone procedure as "includfing] digital palpation of a needle tip in a body cavity o r the simultaneous presence of the H C W ' s fingers and a needle o r other sharp instrument . . . in a poorly visualized o r highly confined anatomic site." Centers for Disease Control, supra note 122, at 4 . While this definition w a s established as a general rule of thumb, the agency recommended that a list of specific exposure-prone procedures b e established through the joint efforts of the C D C a n d various medical organizations. Id. at 5 . Ultimately, after much pressure from other medical groups, the C D C declined to make such a list. See infra notes 166-67 a n d accompanying text. 125 Centers for Disease Control, supra note 122, at 5 . 126 Id. Specifically, the recommendation stated: H C W s who are infected with HIV . . . should not perform exposure-prone invasive procedures unless they have sought counsel from an expert review panel and been advised under what circumstances, if any, they may continue to perform these procedures. Such circumstances would include notifying prospective patients of the H C W ' s seropositivity before they undergo exposure-prone invasive procedures. Centers for Disease Control, supra note 122, at 5 . 127 The C D C ' s sixth recommendation opposed compulsory H I V testing of H C W s . Centers for Disease Control, supra note 122, at 6 .

376

MARGOLIS


measure did incorporate the compulsory "disclosure" requirement of the "Bergalis Bill."128 While much of the health care profession was disturbed by the disclosure requirement, Senator Hatch justified its use. In addressing the disclosure requirement of the amendment, Senator Hatch noted: The American people support health-care professionals disclosing this information to their patients. Over 90 percent of our citizens support mandatory disclo- • sure by nurses, physicians, and dentists who are infected with HIV. I believe, as the CDC does, that the disclosure must occur when procedures are performed which put the patient at risk of exposure.129

Although the public supported disclosure requirements, the AM A was the only medical organization to express its approval of the CDC's disclosure recommendation.130 Shortly after the CDC confirmed that five patients were infected with HIV during a dental procedure,131 the AMA issued its statement on HIV-infected physicians. The statement advised, among other things, that physicians should "either abstain from performing invasive procedures which pose an identifiable risk of transmission or disclose their sero-positive status prior to performing a procedure and proceed only if there is informed consent."132 Both the CDC's recommendations and the AMA's statement on HTVtreated physicians engendered much criticism among health care professionals.133 The objections focused primarily on two aspects of the guidelines: (1) requiring patients' informed consent; and, (2) restricting HIV-infected HCWs from performing exposure-prone invasive procedures. a. Should HCWs Be Required to Disclose Their HIV Status to Patients Prior to Performing Exposure-Prone Invasive Procedures? The informed consent doctrine recognizes the patient's autonomy in making choices about health care.134 Physicians are expected to disclose 128

One of the components of the "Bergalis Bill" required that HIV-infected H C W s disclose their status t o patients prior t o the performance of an exposure-prone invasive procedure. See supra text accompanying note 8 5 . 129 137 C O N G . R E C . S9977 (daily ed. July 15, 1991) (Senator Hatch speaking). 130 T h e A M A stated "that the medical profession . . . should e r r on the side of protecting patients and that HIV-infected physicians 'have an ethical obligation not t o engage in any professional practice which has an identifiable risk of transmission' to patients." Barnes, supra note 6 0 , at 314 (quoting A M E R I C A N M E D I C A L ASSOCIATION, STATEMENT O N H I V INFECTED PHYSICIANS (Jan. 17, 1991)). 131

See Centers for Disease Control, supra note 4 .

132

A M E R I C A N M E D I C A L ASSOCIATION, STATEMENT O N H I V INFECTED PHYSICIANS (Jan. 17, 1991).

133

Rayhawk, Health Care Workers with HIV: The Policy Confusion AIDS REPORTS 4 (Dec. 1991).

134

Continues,

INTERGOVERNMENTAL

W. P. K E E T O N , D . B . D O B B S , R . E . K E E T O N , & D . G. O W E N , PROSSER AND K E E T O N O N THE LAW O F

TORTS § 3 2 , at 190 (5th ed. 1984).



377

information about the relative risks and the alternatives to any proposed procedure. The disclosure must include all information that a reasonable patient would require in making a decision about whether to consent to treatment.135 While physicians need not disclose every conceivable risk, they must disclose those dangers that are relevant or material.136 "Risks that are relevant or 'material' depend upon their severity, the probability that they would occur, and the circumstances under which they would be endured. As the severity of a potential harm becomes greater the need to disclose improbable risks grows."137 As one AIDS expert asserted: A reasonably prudent patient would find information that his physician is infected with HIV material to his decision to consent to a seriously invasive procedure because the potential harm is severe and the risk, while low, is not negligible. Moreover, he can avoid the risk entirely without any adverse consequences for his health: By choosing another equally competent physician (where available) he can obtain all the therapeutic benefit without the risk of contracting HIV from his physician.138

The debate thus focused on how to determine when the risk became significant enough to require the patient's informed consent. b. Should HCWs Be Restricted from Performing Exposure-Prone Invasive Procedures? Health experts argued that the CDC's informed consent requirement would cause widespread discrimination against HIV-infected HCWs.139 Ultimately, HCWs might suffer the loss of career, income, health insurance, and home.140 One poll indicated that most patients would discontinue medical treatment if they knew their HCWs were infected with HIV.141 Given the potentially adverse consequences that disclosure requirements may impose on HIV-infected HCWs, medical and legal commentators have argued that the imposition of restrictions on those HCWs pose substantial legal dilemmas.142 Critics of employment restrictions main-

135

Id. Id. at 190-91. 137 Gostin, HIV-infected Physicians, supra note 16, at 3 3 . 138 Id. at 33-34. 139 See Barnes, et a l . , supra note 6 0 ; Gostin, Hospitals, supra note 16. 140 The issue of discrimination against H C W s is a tremendous concern not only to HIV-infected H C W s , but also from a public policy standpoint. F o r a more complete discussion of discrimination against H C W s and some suggested proposals, see Rothenberg, supra note 16; Keyes supra note 16; Comment, Leckelt v . Board of Commissioners of Hospital District N o . 1: Forced Disclosure for HIV Infected Health Care Workers, 65 T U L . L . REV. 1722 (1991). 141 Kantrowtiz, et a l . , supra note 9. 142 See, e.g., Barnes, et a l . , supra note 6 0 ; Gostin, Hospitals, supra note 16. 136


378

MARGOLIS

tained that "[i]t would be illegal for a hospital to deny a job, fire, or reassign to an administrative position a health care worker with AIDS . . . or HIV infection unless the worker posed a significant risk of transmitting that condition."143 That contention was based in large part on the case of School Board of Nassau County v. Arline.m In Arline, the United States Supreme Court held that an individual who is physically impaired with a contagious disease may be protected under section 504 of the Federal Rehabilitation Act of 1973.145 The Court further held that this protection extended to all handicapped individuals except those who are not "otherwise qualified."146 In making the determination of whether an individual is "otherwise qualified," the Court stated that "courts may reasonably be expected normally to defer to the judgments of public health officials."147 The Court further delineated a four-part test to assist lower courts in making factual determinations as to whether a person qualifies for protection.148 In a footnote, however, the Court declined to comment on the question of whether a non-physically impaired carrier of a disease such as HIV would be considered handicapped.149 Some legal experts maintained that the Americans with Disabilities Act (ADA)150 adopted the Arline standard requiring a "significant risk."151 One legal commentator noted that "[t]he legislative history [of the ADA]

143

Briefing Paper from the American Civil Liberties Union, Testing Health Care Workers 1 (Mar. 1991) (emphasis omitted) (on file with author). 144 4 8 0 U . S . 273 (1987). 145 Section 504 of the Rehabilitation Act of 1973, stated that " [ n ] o otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, b e excluded from participation in . . . any program receiving Federal financial assistance." Id. at 2 7 8 (quoting 29 U . S . C . § 794). 146 The Court held that protection would also extend to individuals with contagious diseases. However, if a person with a contagious disease posed a "significant risk" to others and if alternative reasonable accommodations would not eliminate the risk, that person would not be protected under the statute. Id. at 287. Thus, if a court reasons that an HIV-infected H C W poses a "significant risk" of infection to patients or others and the employer can not otherwise reasonably accommodate the individual, that H C W will be outside the protection afforded by section 5 0 4 . 147 Id. at 2 8 6 . 148 T h e four-part Supreme Court test examined: (a) the nature of the risk ([e.g.] h o w the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties), and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm. Id. at 288 (quoting Brief for the American Medical Association as Amicus Curiae, at 19). 149 Id. at 2 8 2 , n . 7 . However, a federal court later held that AIDS is a handicap that qualifies for protection under Section 504 in Chalk v . Orange County Department of Education, 832 F.2d 1158 (9th Cir. 1987). 150 T h e Americans with Disabilities Act of 1990, P u b . L . N o . 101-336, 104 Stat. 327 (1990) (to be codified at 42 U . S . C . §§ 12101-12213). 151 For a thorough analysis of the A D A in the employment setting, see Adams, Judicial and Regulatory Interpretation of the Employment Rights of Persons with Disabilities, 22 J. APPLIED REHAB. COUNSELING 28 (Fall 1991).


379

indicates that a 'speculative or remote risk' or 'merely elevated risk of injury' would not be significant."152 Thus, opponents of restrictions on HCWs argued that because the risk of iatrogenic transmission of HIV was highly remote, HCWs should not be restricted from their duties.153 Despite the protection afforded by the ADA's codification of Arline's "significant risk" standard, a New Jersey trial court upheld employment restrictions that had been imposed on an HIV-infected surgeon in Behringer v. Medical Downloaded by [University North Carolina - Chapel Hill] at 12:55 18 February 2015

Center.™

The plaintiff in Behringer was an ear, nose, and throat specialist and plastic surgeon at a medical center when he was diagnosed with AIDS.155 In response to the diagnosis, the hospital's president advised the plaintiff to obtain written informed consent from each patient prior to the performance of any surgical procedures.156 The plaintiff sued the hospital, alleging that the informed consent requirement violated the New Jersey Law Against Discrimination (LAD).157 In finding for the hospital, the court held that the hospital could properly require the plaintiff to obtain informed consent.158 As for the issue of whether a surgeon could be restricted in his surgical procedures under the anti-discrimination law, the court ruled that the test is whether the continuation of surgical procedures poses a "reasonable probability of substantial harm."159 Basing his analysis on Arline 's four-part test, the trial judge held that the defendant medical center could properly restrict "surgical privileges of health care providers who pose[d] 'any risk of HIV transmission to the patient.' "16° The judge further noted that the test was met because although the risk of transmission of HIV from physician to patient was small, the ultimate harm caused is always death to the patient.161 In addition, the court noted that if any one person should decide whether an HIV-infected physician should perform invasive, operative procedures, it should be the patient.162 152

Gostin, supra note 9 6 , at 8. See Barnes, et al., supra note 6 0 , at 317. 154 N o . L88-2550, slip op. (N.J. Super. Ct. Law Div. Apr. 2 5 , 1991) (briefs for plaintiff and defendant on file with author). 155 Id. at 2 . 156 Id. at 12. 157 Id. at 2 . Specifically, the act "prohibit[s] any unlawful discrimination against any person because such person is o r has been at any time handicapped o r any unlawful employment practice against such person, unless the nature and extent of the handicap reasonably precludes the performance of the particular employment." Id. at 5 2 (quoting N . J . STAT. A N N . § 10:5-4.1). 158 Id. at 7 5 . 159 Id. at 5 8 . 160 Id. at 4 . 161 Id. at 5 8 . 162 Id. at 7 3 . 153


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MARGOLIS

The Behringer case illustrates that although the risk of iatrogenic transmission of HIV might be small, courts may continue to focus on the "severity of harm" aspect of HIV in finding that infected HCWs pose a "significant risk." The questions of whether HIV-infected HCWs pose a "significant risk" and, thus, whether employment restrictions are justified will likely plague health experts and courts for some time to come. Furthermore, HCW advocates have concluded that unless the CDC or another health agency establishes a more exact and scientifically justified basis to determine when a "risk" is significant, there is a strong likelihood that all HIV-infected HCWs, including those not involved in seriously invasive procedures, will continue to face employment restrictions.163 Although the CDC recommended that HIV-infected HCWs should refrain from performing exposure-prone invasive procedures164 in the absence of informed consent, the agency did not specifically define exposureprone invasive procedures in its guidelines. Instead, the agency solicited assistance from the country's leading medical organizations in establishing a comprehensive listing of exposure-prone invasive procedures.165 These organizations refused to cooperate, however, claiming that there was no need to classify specific procedures because the risk of iatrogenic transmission of HIV was too small.166 Consequently, the CDC shifted responsibility for classifying such procedures to local public health panels.167 Although the CDC deferred the classification of exposure-prone invasive procedures to local panels, several states still opposed any recommendation restricting HCWs' employment duties.168 New York was the first 163

As previously mentioned, the subject of discrimination against HIV-infected H C W s is extremely broad. F o r a more thorough analysis of discrimination in the health care setting, see Gostin, supra note 9 6 . But see Letter from Chai Feldblum, supra note 9 6 . 164 T h e C D C suggested that H C W s w h o are performing exposure-prone invasive procedures pose a greater risk of iatrogenic transmission of H I V than H C W s w h o are performing merely invasive procedures. Centers for Disease Control, supra note 3 , at 5 . Exposure-prone procedures involve the use of a "sharp instrument or object in a poorly visualized or highly confined anatomic site." Id. at 4. In contrast, invasive procedures are defined as " 'surgical entry into tissues . . . or repair of major traumatic injuries' associated with . . . an operating or delivery room, emergency department, or outpatient setting, including both physicians' and dentists' offices." Id. at 9. 165 Specifically, the C D C ' s third recommendation stated that "[e]xposure-prone procedures should be identified by medical/surgical/dental organizations and institutions at which the procedures are performed." Id. at 5 . 166 F o r example, the American Dental Association "rejected the concept of exposure-prone lists as scientifically invalid." Altman, Unexpected Defiance Greets AIDS Guidelines, N.Y. Times, Oct. 15, 1991, at C 3 . Similarly, the California Medical Association (CMA) refused to issue a list of exposure-prone procedures, claiming that "[t]here simply is n o scientific data available to support the conclusion there is or ever w a s an 'exposure-prone' procedure." Murray, Medical Leadership Chides Feds for AIDS Query, BC Cycle, Oct. 17, 1991, at Domestic News Sec. (Dr. Howard Lang, president of the C M A speaking). 167 Rayhawk, supra note 133, at 4 . 168 See, e.g., Murray, supra note 166 (California Medical Association refused to submit listing of procedures).



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state to publicly react to the compromise legislation.169 Specifically, state health officials rejected the CDC's recommendation, which advised that HIV-infected HCWs should be required to inform patients of their medical status prior to performing exposure-prone invasive procedures.170 These officials stated that the CDC guidelines ultimately would place patients in greater danger.171 Because of uncertainty about potential liability, some hospitals were demanding the resignations of HIV-infected HCWs.172 Thus, New York health officials argued that patients would face a greater risk of infection due to the unwillingness of HIV-infected HCWs to disclose their status for fear of losing their jobs.173 Massachusetts health officials quickly followed New York's lead. The State's Public Health Commissioner claimed that "infected [health care] workers in Massachusetts should be allowed to continue performing surgery in most cases and should not always have to inform patients of their medical status."174 He further alleged that the imposition of restrictive measures, such as informed consent, would make it difficult to attract HCWs who are willing to work with HIV-infected patients.175 Similarly, Michigan's public health department issued guidelines that rejected the use of mandatory testing and compulsory disclosure to patients.176 This diverse response illustrates that if the task of defining exposure-prone invasive procedures is left to local panels, it is conceivable that each state will establish a different list. New York may not find any procedure to be exposure-prone. Conversely, a more conservative state may find that even minor procedures are exposure-prone. Despite the debate over the CDC's recommendations, the Dole-Hatch Senate leadership proposal cleared the Senate by an overwhelming vote of 99-0.177 However, this proposal was modified by Representative Roybal (D-Cal.) through a Senate-House compromise measure. Although nearly identical to the original Dole-Hatch proposal, the modified measure required "each state public health official [to] . . . certify to the Secretary of 169

G o r m a n , When Your Doctor Has AIDS: Bucking an Emotional National Crusade, New York Decides Not to Force Physicians to Tell Their Patients, T I M E , O c t . 2 1 , 1991, at 8 3 . 170 Id. 171 Id. 172 Id. In fact, some hospitals required resignations from HIV-infected H C W s w h o w e r e not even involved in invasive procedures. Id. 173 Id. T h e question remains, however, whether certain public funding subsidies will b e denied if N e w York does not adhere t o the C D C ' s recommendations. F o r a discussion of the potential sanctions for not cooperating with t h e C D C , see infra notes 178-82 a n d accompanying text. 174 Bass, Health Chief: AIDS Shouldn't Bar Doctors, Boston Globe, Oct. 12, 1991, at 2 5 . 175 Id. 176 Rayhawk, supra note 133, at 5 . A s of October of 1991, a survey by the Association of State and Territorial Health Officials found that only 19 states h a d implemented t h e C D C ' s patient disclosure recommendation. Id. 177 137 C O N G . R E C . S10363 (daily e d . July 1 8 , 1991).


382

MARGOLIS

Health and Human Services that CDC guidelines [or their] . . . equivalent . . . on the transmission of HIV . . . have been instituted in the state."178 Representative Henry Waxman (D—Cal.) noted that the term "equivalent" provided the states with flexibility in establishing guidelines.179 Accordingly, states that were contemplating the adoption of slightly different infection control standards, such as those outlined by the Occupational Safety & Health Administration, would also satisfy the modified measure.180 In addition to providing states with flexibility, the modified measure also "allow[ed] the CDC flexibility to revise their recommendations as additional scientific evidence becomes available."181 Although states that failed to institute the guidelines risked losing up to $2 billion nationally in Public Health Service Funds, the added flexibility of the modified measure made that possibility a more remote outcome.182 In short, substantial questions were raised by the Dole-Hatch and modified Senate-House measures, which advocated that states adopt the CDC guidelines. Nevertheless, the proposals' more moderate approach to HCW restrictions and their emphases on universal precautions provided a more neutral ground for Congressional agreement. If more states join New York and Massachusetts by refusing to force HCWs to restrict their duties or disclose their HIV status, then serious funding questions may ensue. However, the addition of the term "equivalent" in the modified measure reduced the likelihood that funding losses would occur. Unlike harsh penal sanctions for HIV-infected HCWs and compulsory testing for both HCWs and patients, the concept of infection control engendered agreement among health experts and lawmakers. They agreed that the enforcement of strict infection control policies was essential to the prevention of HIV transmission in the health care setting. Thus, enforcement of infection control became the component of yet another HIV and HCW related amendment. 2. The Kennedy-Dole Amendment The CDC's guidelines were designed primarily to protect patients from the risk of iatrogenic transmission of HIV. In contrast, health care 178

179

Id. at S14346 & H7405 (daily ed. Oct. 3 , 1991) (emphasis added). The measure, P.L. 102-141, was signed into law by President Bush o n October 2 8 , 1991. NATIONAL CONFERENCE OF STATE LEGISLATURE, supra note 8 8 , at 9. States can benefit from the term "equivalent" because state health and other experts can assess more thoroughly the impact of C D C guidelines. OFFICE O F TECHNOLOGY ASSESSMENT, U . S . C O N GRESS, H I V IN THE HEALTH C A R E WORKPLACE (OTA-BP-H-90 N O V . 1991).

180

181 182

137 C O N G . R E C . H7388 (daily ed. Oct. 3 , 1991). T h e finalization of O S H A regulations for health care facilities was the subject of another legislative proposal. See infra notes 184-89 and accompanying text. 137 C O N G . R E C . H7388 (daily ed. O c t . 3 , 1991) (Rep. Roybal speaking). Melillo, supra note 6 1 .



383

professionals lobbied for the enactment of guidelines to protect HCWs from becoming infected by their patients. They argued that the possibility of patient-to-HCW transmission of HIV is much higher than the converse. In fact, by February of 1992, the CDC reported that 47 HCWs had been infected with HIV by a patient.183 Because the CDC's guidelines are advisory, however, medical facilities are not required to strictly enforce universal precautions or even provide routine infection control training to HCWs. Thus, HCWs maintained that without an enforcement mechanism, neither HCWs nor patients would be assured of adequate protection. Rules for comprehensive infection control plans and enforcement procedures had been drafted by the Occupational Safety and Health Administration (OSHA) in 1989.1S4 In an effort to expedite the enactment of these regulations, Senators Edward Kennedy (D—Mass.) and Robert Dole (R— Kan.) introduced a proposal that required OSHA to issue a final set of proposed regulations by December of 1991.185 The amendment passed both houses and was signed into law on November 26, 1991. The final regulations were issued in December of 1991 and became effective in March of 1992.l86 In part, the regulations require employers to: (1) develop a written infection control plan; (2) provide appropriate personal protective equipment; (3) observe universal precautions; and, (4) give workers information and training on bloodborne infectious diseases within 90 days of hire and at least annually thereafter.187 OSHA's rules mirrored the CDC's recommendation insofar as they admonished HCWs to follow universal precautions. In contrast to the CDC's recommendations, however, the regulations are compulsory rather than advisory.188 In addition, Senator Kennedy noted that OSHA's regulations protected HCWs and patients by establishing "an enforcement mechanism to make sure these precautions are followed . . . through inspections and the imposition of civil penalties for violations."189 183

Id. Occupational Exposure to Bloodborne Pathogens, 54 Fed. R e g . 102 (1989) (to be codified at 29 C.F.R. pt. 1910) (proposed May 3 0 , 1989). 185 T h e amendment N o . 1101 w a s attached t o the Labor, Health and Human Services, Education, and Related Agencies Appropriations Act, H . R . 2707, 102d Cong., 1st Sess. (1992). The bill required that on or before December 1, 1991, the Secretary of Labor . . . shall promulgate a final occupational health standard concerning occupational exposure to bloodborne pathogens. The final standard shall b e based o n the proposed standard as published in the Federal Register on M a y 30, 1989 (54 F R 23042), concerning occupational exposures to the . . . human immunodeficiency virus and other bloodborne pathogens. P.L. 102-170. 186 See Fed. R e g . 64175-82 (Dec. 6, 1991). 187 Id. 188 Taravella, OSHA, CDC Issue Rules on Infection Control, M O D . HEALTHCARE 3 (Dec. 9, 1991). 189 137 CONG. R E C . S12708, 12726 (daily ed. Sept. 1 1 , 1991). 184


384

MARGOLIS

Although this proposed bill required all health care facilities to implement OSHA standards, it met with virtually no criticism. This can be attributed to several factors. First, the measure was non-intrusive, and in light of the previously described proposals, it was certainly the least threatening to a HCW's career.190 Second, most medical experts agree that universal precautions are the best way of preventing transmission of HIV.191 Thus, HCWs and patients benefit from the measure. Third, the enforcement mechanism ensures that hospitals and HCWs comply with the rules or face sanctions. Despite widespread agreement as to the utility of the OSHA guidelines, experts raised one concern. That concern focused on the expense of compliance with OSHA regulations. OSHA projected that medical facilities will have to spend in excess of $800 million per year to conform to the rules.192 In short, Congress has engaged in a variety of responses since it learned of the first documented case of HIV transmission from a dentist to five patients. Initial proposals would have mandated the use of criminal sanctions and required compulsory HIV testing of HCWs. As a counter response to these harsh measures, more moderate proposals emerged that merely recommended the use of universal precautions. Finally, regulations were adopted to ensure that medical facilities adhere to infection control procedures. In contrast, while federal lawmakers were moving away from imposing compulsory testing and criminal sanctions on HIV-infected HCWs, several states continued to debate similar legislation. III. THE STATES In addressing the problem of HIV-infected HCWs, Congress debated numerous proposals and eventually compromised on measures that emphasized adherence to universal precautions and infection control. However, the public was not comforted. Apprehension increased as the public heard nationwide reports about physicians, surgeons, and dentists dying from or retiring because of AIDS.193 Despite the defeat of Senator Helms' bills and the "Bergalis Bill," several state lawmakers continued to endorse the use

190 191

192 193

See supra notes 43-59 and 82-119 and accompanying text. Universal AIDS Precautions to Be Debated in Senate Today, U . S . Newswire, July 2 4 , 1991, at Medical Writer. Taravella, supra note 188, at 3 . Reports of H C W s with AIDS were coming from many states, including California, Florida, Maryland, Minnesota, N e w Hampshire, and N e w York. See, e.g., Russell, Kaiser Says 2 More Physicians Died from AIDS Deaths of Vallejo Surgeon, SF Internist Confirmed, San Francisco Chron.,


385

of criminal sanctions and compulsory HIV testing for HCWs. This section reviews legislation proposed and enacted by the states.


A. A Survey of Current State Laws As of February 1992, six states had laws concerning HIV-infected HCWs.194 Those states are California, Florida, Hawaii, Illinois, Maryland, and Texas.195 Illinois and Texas have passed the most restrictive legislation. Illinois' law, for example, allows the Department of Public Health, upon a report of an AIDS diagnosis, to determine if the subject of the report may present a possible risk of HIV transmission.196 If the subject is a HCW and presents a risk, the health department may then inform former patients of the HCW about the possibility that they might have been infected with HIV.197 A HCW who performs "invasive procedures"198 would be considered at risk for transmitting HIV.199 Unlike some of the federal proposals, however, this bill does not require that HIV-infected HCWs disclose their status to patients prior to the performance of invasive procedures.200 In contrast, a recent Texas enactment requires HCWs with exudative lesions or weeping dermatitis to abstain from any direct patient care and handling of patient care equipment.201 In addition, Texas was the first state to fully adopt the CDC guidelines.202 Thus, in accord with CDC recommendations, Texas prohibits an HIV-infected HCW from performing exposure-prone procedures unless the HCW seeks approval from an expert June 2 7 , 1991, at A19; Workers with AIDS May Have to Report, Wash. Times, Apr. 18, 1991, at B5 (discussing death of a second Florida dentist from AIDS); AIDS and Health Care Workers, Wash. Times, May 2 8 , 1991, at C 2 (discussing Baltimore prison dentist who often wore n o gloves while treating over 4,000 prison inmates); Worthington, Debate Grows Over Doctors with AIDS, Chi. Trib., July 1, 1991, at C1 (discussing HIV infected OB-GYN who allegedly performed pelvic examinations with oozing, weeping lesions on his hands); New Hampshire Clinician with AIDS Virus Is a Doctor, A M Cycle, July 3 , 1991; Zinman, LI Dentist Was HIV-Positive, The Risk Factor: Low, If Dentist Takes Precautions, Newsday, July 14, 1991, at 5. 194

A I D S POLICY CENTER, T H E GEORGE WASHINGTON UNIVERSITY, STATES WITH LAWS FOR H I V INFECTED HEALTH C A R E PROVIDERS—INTERGOVERNMENTAL HEALTH POLICY PROJECT (1992) (on file with au-

thor). Id. 196 The Illinois Sexually Transmissible Disease Control Act, ILL. REV. STAT. ch. 111 1/2, ¶ 7401, as amended by P.A. 87-763 (effective Oct. 4 , 1991). 197 AIDS POLICY CENTER, supra note 194, at 1-2. Notably, the bill requires that the name of the HIVinfected H C W remain confidential. Accordingly, the patient will be told only that he or she may be infected; the patient will not specifically b e told the name of the infected HCW. Interview with Thomas Schafer, Director of Communications, State of Illinois, Department of Public Health (Oct. 9 , 1991). 198 The bill incorporated the CDC's definition of "invasive procedures." Interview with Thomas Schafer, supra note 197. 199 Id. 200 Id. 201 See AIDS POLICY CENTER, supra note 194 (discussing Texas H.B. 7X (1991)). 202 Rayhawk, supra note 133, at 5. 195

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MARGOLIS


review panel. The HCW also must obtain the informed consent of the patient prior to performing the procedure.203 Two other states, California and Florida, passed measures promoting the use of infection control procedures by HCWs. The California legislature provided for the suspension of a HCW's license if the HCW knowingly fails to adhere to infection control guidelines.204 Similarly, Florida law requires every HCW to complete an educational course on infection control and confidentiality laws as a condition of relicensure.205 B. A Review of State Proposals 1. The Criminalization Approach Three states, Maryland, New Jersey, and New York, have measures pending that would provide for criminal sanctions against HCWs.206 If Maryland's bill is passed, then HIV-infected HCWs who perform exposure-prone procedures without first obtaining their patients' informed consent will be subject to a $10,000 fine, a 10-year prison term, or both.207 Similarly, New Jersey's legislature is considering a bill that will provide for up to six months imprisonment and/or a fine of not more than $l,000. 208 Supporters of these measures maintain that fear of a prison sentence will motivate HIV-infected HCWs to disclose their status to their patients.209 Critics, on the other hand, argued that criminal sanctions are not a realistic deterrent to a HCW who already has been handed a death sentence.210 2. Mandatory Testing Delaware, Maryland, New Hampshire, and South Carolina are considering bills that would require HCWs to undergo compulsory HIV testing.211 Maryland, for example, was considering legislation that required HCWs who engage in exposure-prone procedures to undergo HIV testing

204 205 206

See AIDS POLICY CENTER, supra note 194 (discussing California S.B. 1071 (1991)). Id. (discussing Florida S.B. 1436 (1991)). Although seven states proposed criminal sanction measures against HIV-infected H C W s , only three remain pending. A I D S POLICY C E N T E R , T H E GEORGE WASHINGTON UNIVERSITY, STATE BILLS R E LATED TO HIV INFECTED HEALTH C A R E PROVIDERS—INTERGOVERNMENTAL HEALTH POLICY PROJECT

207 208 209 210 211

(1992) (discussing Maryland S.B. 7 (1992), New Jersey A . B . 4918 (1991), New York A . B . 4835 (1991)). Id. Id. See supra text accompanying note 4 5 . See supra text accompanying note 5 4 . See AIDS POLICY CENTER, supra note 206 (Delaware H . B . 191 (1991), Maryland S.B. 18 (1992), New Hampshire H.B. 1404 (1992), South Carolina H . B . 4151 (1992), and South Carolina H . B . 3179 (1991)).


387


every six months at the HCW's expense.212 Notably, Maryland's Governor has been a staunch proponent of mandatory testing and disclosure policies for HCWs who are involved in exposure-prone procedures.213 One compulsory testing advocate argued that "testing once a year . . . will prevent 95 percent of the cases of HIV . . . being transferred between patients and health-care workers."214 In contrast, numerous medical experts maintain that the risk of harm is too insignificant to justify mandatory testing.215 3. Adoption of CDC Guidelines As of February 1992, two states, Arizona and Maryland, were considering bills that were drafted to adopt the CDC guidelines.216 These guidelines advise HIV-infected HCWs to refrain from performing exposure-prone invasive procedures or, alternatively, to solicit patients' informed consent before the procedure. Advocates of the CDC guidelines maintain that infection control is the most effective means of preventing the transmission of HIV in the health care setting. As previously discussed, however, several states have rejected the restrictive aspects of the CDC's recommendations beause they deemed the risk of iatrogenic transmission of HIV too insignificant to justify employment restrictions.217 However, states that do not adopt CDC guidelines or their "equivalent" risk losing substantial federal funding. 4. Implementation of OSHA-Type Universal Precautions Finally, Delaware, Massachusetts, Michigan, Missouri, and New Hampshire are each considering legislation to mandate the use of universal precautions in medical facilities.218 Michigan's proposal would require the Department of Public Health to submit, for comment, rules concerning the enforcement of the required universal precautions.219 After the rules are promulgated, medical facilities would be required to implement universal 212

Id.

213

The Governor reportedly "scrapped the AIDS panel that sat through his first term, saying that its members concentrated too much on issues of confidentiality." Shen, Shaefer Weighs Mandatory AIDS Testing: Governor May Push Legislation Aimed at Health Care Providers, Wash. Post, Aug. 7, 1991, at D 5 . Siegel-Itzkovich, Top U.S. Expert: Beware Israeli Epidemic of AIDS and Hepatitis B Spread by Medics Killer-Disease Time-Bomb, Jerusalem Post, Aug. 2 5 , 1991, at Health Sec. (Dr. Sanford Kuvin, consultant to Kimberly Bergalis, speaking). See supra notes 89-94 and accompanying text. See AIDS POLICY CENTER, supra note 206 (discussing Arizona H.B. 2024 (1992), Maryland S.B. 6 (1992), and Maryland S.B. 18 (1992)). For a more detailed discussion of these restrictions, see supra notes 120-32 and accompanying text. See AIDS POLICY CENTER, supra note 206 (discussing Delaware S.B. 275 (1992), Massachusetts H.B. 1303 (1992), Michigan H.B. 5291 (1992), Michigan S.B. 633 (1992), Missouri H.B. 1514 (1992), and New Hampshire S.B. 410 (1992)). Id.

214

215 216

217 218

219

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MARGOLIS


precautions and provide training at specified intervals in relevant infection control procedures.220 As discussed above, few health experts or lawmakers disagree as to the efficacy of universal precautions. Health experts generally agree that universal precautions are one of the most effective means of preventing HIV transmission from either HCW-to-patient or patient-to-HCW.221 IV. ANALYSIS A new chapter in the history of the AIDS epidemic began when a Florida dentist transmitted HIV to five of his patients.222 Kimberly Bergalis was one those patients. As news of Bergalis' plight spread, the public became increasingly distrustful of HCWs. Further, this wariness spawned a multitude of federal and state legislation that was designed to restrict the duties of HIV-infected HCWs. Medical organizations and health experts quickly opposed such proposals however. They stressed that in the 11 years since the epidemic began, no other case of iatrogenic transmission of HIV had ever been reported.223 Accordingly, they argued that Bergalis' infection was merely an aberration.224 The assertion that Kimberly Bergalis was the first patient to be infected with HIV by her HCW is subject to criticism however. After learning of Kimberly Bergalis' HIV infection, the CDC expended tremendous resources trying to uncover a risk factor225 in her life that would explain the source of her infection.226 If the federal agency had found that Bergalis participated in any risky behavior, then there would have been no further inquiry into the possibility of iatrogenic transmission.227 As a consequence, the CDC would not have performed the DNA sequencing tests that ultimately proved Bergalis had been infected by her dentist. Similarly, because at least one of the other four infected dental patients exhibited varying risk factors, the CDC may not have performed DNA testing on those persons either. In short, if the CDC had found just one risk factor in its assessment of Kimberly Bergalis, then the transmission of HIV from the Florida dentist to five patients never would have been reported.228 220 221 222

Id. See supra notes 120-23 and accompanying text. See Centers for Disease Control, supra note 4 .

223

See AMERICAN M E D I C A L ASSOCIATION REPORT O F THE BOARD O F TRUSTEES, supra note 6 6 , at 4 .

224

See Harrington, Health Officials Criticize Mandatory HIV Tests, Chi. Trib., Sept. 2 0 , 1991, at C 3 (remarks by Dr. C . Everett Koop, former U . S . Surgeon General). For a listing of common risky behaviors, see supra note 2 8 . Garrett, supra note 2 0 . See Centers for Disease Control, supra note 19, at 489 (the only reason Bergalis' case was referred to the C D C was because no risk factor could be identified). Telephone Interview with H . Alexander Robinson, supra note 5 7 .

225 226 227

228


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Regardless of how the CDC made its discovery, Kimberly Bergalis proved that the risk of iatrogenic transmission of HIV is real. What was once considered to be merely a remote possibility quickly became an unsettling reality. Accordingly, several legislators introduced proposals that were designed to protect patients from the risks of HIV infection in the health care setting. Downloaded by [University North Carolina - Chapel Hill] at 12:55 18 February 2015

A. Legislative Approaches As the publicity over Kimberly Bergalis intensified, federal and state lawmakers became aware that they had to intervene to alleviate some of their constituents' concerns. Several Congressmen sponsored bills that were designed to reduce the likelihood that HIV might be transmitted from a HCW to a patient. These bills offered four approaches to reducing the likelihood that HIV would be transmitted from a HCW to a patient. One approach would have imposed criminal sanctions on HIV-infected HCWs who failed to disclose their HIV status to patients. A second approach would have required HCWs who engage in exposure-prone invasive procedures to submit to compulsory HIV testing. A third approach emphasized the need for HCWs to adhere to universal precautions by requiring states to adopt CDC or equivalent guidelines. In addition, the guidelines advised that HIV-infected HCWs should refrain from performing exposure-prone procedures. Finally, another approach provided for the enforcement of universal precautions through OSHA regulations. Each of these approaches provoked extensive debate and criticism. 1. Criminalization Approach Shortly after the CDC confirmed that Kimberly Bergalis was infected with HIV during a dental procedure, Senator Jesse Helms (R—N.C.) introduced a measure that was designed to prevent similar occurrences.229 The bill subjected HIV-infected HCWs to a minimum of 10 years in prison if they knowingly failed to disclose their status to patients prior to performing an invasive procedure. Although the measure overwhelmingly passed the Senate, it was eliminated in a House-Senate Conference Committee.230 Despite the defeat of the Helms' bill, the idea of criminal sanctions has not been completely discarded. Indeed, several state legislatures continue to debate the efficacy of such an approach.231 In the final analysis, however, the threat of a prison sentence is not likely to motivate HCWs to disclose their HIV status. No sanctions could be harsher than the death sentence that already has been imposed by the virus. Further, because of 229 230 231

For a complete analysis of Senator Helms' proposal, see notes 43-59 and accompanying text. See supra text accompanying note 59. See supra text accompanying notes 206-10.


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MARGOLIS

the harsh penal sanctions that a positive HIV test might potentially cause, HCWs might actually refrain from being tested for HIV.232 In contrast, HCWs should be encouraged to undergo HIV testing voluntarily and are more likely to do so in the absence of penal sanctions. This voluntary testing will lead to two benefits. First, if a HCW knows that he or she is HIV-positive, the HCW may voluntarily refrain from performing procedures that would put patients at risk of infection. Second, even if a HCW does not refrain from performing usual duties, the HCW may be more inclined to adhere to recommended infection control practices.233 In sum, imposing criminal sanctions on HIV-infected HCWs accomplishes little in the actual prevention of iatrogenic transmission of HIV.234 2. Compulsory Testing of HCWs and Patients Like the criminal sanctions approach, much debate ensued over the concept of compulsory HIV testing of both patients and HCWs. On its surface, mandatory testing of patients and HCWs provided an expedient and logical means for identifying HIV-infected HCWs. Compulsory testing advocates maintained that if mandatory HIV testing had been in force earlier, the five Florida dental patients would not have become infected.235 This logic is flawed, however, as it ignores the impact of the "window period." The window period refers to the period of time, sometimes up to six months, within which someone may be infected with HIV but will not demonstrate HIV antibodies when tested.236 For example, a patient who is preparing to undergo a highly invasive procedure is told that the surgeon tested negative for HIV only one week ago. In fact, the surgeon was infected with HIV three months earlier. Because of the window period, however, the surgeon might test negative for HIV antibodies for as long as six months. During this six month period, the surgeon is contagious and fully capable of infecting a patient with HIV. Thus, assurances that a HCW tested negative for HIV are arguably meaningless.237 Similarly, compulsory patient testing for HIV would provide little, if any, security for HCWs.238 To illustrate, if patients test negative for HIV, HCWs may be less likely to adhere strictly to universal precautions.239 232 233 234 235 236 237

238 239

See supra text accompanying note 50. See supra text accompanying notes 52-53. 137 C O N G . R E C . 10343 (daily ed. July 18, 1991) (Senator Edward Kennedy speaking). The MacNeil/Lehrer NewsHour, supra note 6 6 . See supra text accompanying note 66. Press Conference, supra note 91 (Dr. C. Everett Koop speaking). Dr. Koop explained that "[i]f you test me today or last month or last week . . . it means absolutely nothing unless you live with me and can attest to my behavior." Id. See supra text accompanying note 66. See supra text accompanying note 6 7 .


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Because of the window period, however, a patient may be infected with HIV even though the patient tested negative for HIV antibodies. Accordingly, HCWs who rely on a patient's negative status will face a greater risk of patient-to-HCW transmission of HIV than HCWs who do not know the patient's status and follow universal precautions more rigorously.240 In short, the existence of the HIV window period may nullify the benefits offered by mandatory HIV testing of both patients and HCWs. 3. The CDC Compromise Agreement As an alternative to the highly restrictive approaches initially proposed, Congress agreed to a compromise approach that required states to adopt the CDC guidelines.241 Almost all health care professionals agree with the CDC that consistent adherence to universal precautions provides the most effective means for preventing the transmission of HIV. In contrast, health care professionals adamantly oppose other CDC guidelines. Specifically, the CDC recommended that HIV-infected HCWs either not perform exposure-prone invasive procedures or disclose their HIV status to patients prior to performing exposure-prone invasive procedures.242 Critics of the recommendation asserted that because the projected risk of iatrogenic transmission of HIV was so small, there was no justification for restricting the employment of HIV-infected HCWs.243 Moreover, when the CDC asked various health agencies to submit a list of exposure-prone invasive procedures, every major medical organization refused. These organizations claimed that there was inadequate scientific proof that specific procedures were linked with a higher risk of HCW-to-patient transmission of HIV.244 Consequently, the CDC responded by shifting the task of classifying exposure-prone invasive procedures to local panels. Ironically, the CDC's deferral to local panels ultimately may subject HCWs to greater employment restrictions than if a uniform classification of exposure-prone invasive procedures had been developed. There is likely to be a great deal of inconsistency across the nation as local panels independently define what is an exposure-prone invasive procedure. For example, the California Medical Association already has denounced the CDC's suggestion that HCWs refrain from performing exposure-prone invasive procedures.245 The organization's president argued that "[t]here simply is 240

Press Conference, supra note 9 1 (Dr. Koop speaking). See supra notes 177-82 and accompanying text. See supra notes 124-26 and accompanying text. See supra text accompanying notes 142-67. See, e.g., Medical Groups Oppose Plan to List Exposure-Prone 241

242 243 244

245

Invasive

Procedures,

29 Gov't

Empl. Rel. Rep. (BNA) No. 1440, at 1490 (Nov. 18, 1991). Murray, Medical Leadership Chides Feds for AIDS Query, BC Cycle, Oct. 17, 1991, at Domestic News Sec.


392

MARGOLIS

no scientific data available to support the conclusion there is or ever was an 'exposure prone' procedure."246 Therefore, a local panel in California may find that no medical procedure is exposure-prone. In contrast, panels in other states may determine that a wide variety of procedures should be classified as exposure-prone. Thus, while an HIV-infected HCW in California may continue employment unrestricted, an infected HCW from a stricter state may lose his or her job altogether. The Americans with Disabilities Act (ADA) extends employment protection rights to HIV-infected individuals unless they pose a "significant risk" of infection to others.247 Therefore, HIV-infected HCWs may have a cause of action under this statute if they are subjected to employment restrictions. In determining whether a HCW poses a "significant risk," courts will have to rely on local panels' classification of exposureprone invasive procedures. This inevitably will lead to inconsistent outcomes.248 Furthermore, this national inconsistency will provide very little guidance for courts in determining whether an employer justifiably restricted the duties of an infected HCW in a discrimination suit. In sum, many of the legislative measures that were designed to prevent future cases of iatrogenic transmission of HIV missed the mark. There is no simple solution for completely preventing future cases of HCW-topatient transmission of HIV. Alternatively, various health care professionals and other interested parties have suggested other proposals for minimizing the risk of HCW-to-patient transmission of HIV. B. Proposals for Minimizing the Risks and Easing the Financial Burden on HIV-infected HCWs Many health experts theorized that substandard infection control practices caused the transmission of HIV from a Florida dentist to five patients.249 Hence, legislators and HCWs alike concluded that the probability of iatrogenic transmission of HIV could be greatly reduced by stricter adherence to universal precautions. In an effort to make universal precautions more effective, therefore, some health professionals suggested additional methods for enhancing infection control. These methods included the modification of medical techniques and instruments. In addition to recommending stricter adherence to universal precautions, the CDC guidelines further advocated restricting the duties of HIVinfected HCWs who are involved in exposure-prone invasive procedures. Because employment restrictions were imminent, malpractice insurance 246 247 248 249

Id. See supra notes 150-63 and accompanying text. Daniels, supra note 89. See supra notes 32-35 and accompanying text.


393

companies instituted disability plans that were designed to ease the financial hardship that HIV-infected physicians and dentists might suffer.


1. Modification of Medical Techniques and Instruments After examining the results of the CDC's investigation into the HIV infection of five Florida dental patients, some researchers theorized that inadequate infection control in the dentist's office was the cause.250 One study alleged that "blood and patient tissue that might contain such organisms [like HIV] could lodge in crevices of dental drills not reached by commonly used external chemical disinfection procedures."251 Accordingly, some medical practitioners suggested modifications to both the techniques and tools used in various medical procedures. For example, one dentist devised a protective "sterile barrier sleeve" that could be used on equipment like a dental drill.252 The sleeve, which acts like a condom, is placed on the handle of a dental instrument and acts as a barrier to protect patients from exposure to HIV as well as other viruses and bacteria.253 In short, the risk of iatrogenic transmission of HIV will be minimized as more effective methods of infection control are developed. While HIV may be transmitted through improperly sterilized dental equipment, the typical mode of HIV transmission is through blood contacts.254 In an effort to reduce the likelihood of blood contacts during surgical procedures, two surgeons asserted that revised surgical methods would all but eliminate the risk of HIV transmission.255 These methods included the use of modified surgical forceps256 and an altered surgical method referred to as the "no-touch needle technique."257 In addition, the increasing 250

251

252

253 254 255 256

257

F o r example, o n e theory suggested that the H I V virus w a s housed in the dentist's dental drill and transferred from o n e HIV-infected patient t o another. See supra notes 34-35 and accompanying text. Russell, Dental Drills and the Risk of Infection: Methods of Disinfecting Instruments Between Patients Raise Concerns, Wash. Post, J a n . 2 8 , 1992, at Z 6 . English, Dentist's Invention a Tool Against AIDS, Newsday, J a n . 19, 1992, at 10. T h e dentist, Dr. Edmund Burton, notes that although some instruments can be effectively sterilized, " t h e handles of some drills, cavitrons and surgical cutters cannot be safely steam cleaned . . . because they contain delicate electrical wiring." Id. Id. See supra notes 101-03 and accompanying text. Burget, Orane, & Teplica, Editorial—HIV-infected Surgeons, 2 6 7 J . A . M . A . 8 0 3 (1992). T h e physicians stated that " [ a ] surgical forceps possessing needle platforms . . . held in the surgeon's nondominant hand accomplishes all the functions that the fingers of that hand would otherwise perform. W h e n such forceps a r e used, fingers never touch a needle." Id. Id. T h e surgeons delineated four rules necessary to ensure that blood contacts d o not occur. (1) Exert counterpressure against soft tissues with a forceps while placing a suture. D o not use fingers.


394

MARGOLIS

use of laparoscopic techniques258 and laser surgery should further lessen the risk of blood contacts during surgical procedures.259 By reducing the opportunity for transferring viruses, bacteria, and blood during medical procedures, both patients and HCWs will be protected from unnecessary exposure.260 In sum, modification of tools and techniques that reduce or eliminate the possibility of blood contacts will significantly reduce the opportunity for transmission of HIV. Because the risk of iatrogenic transmission of HIV is arguably very small, any further decrease of the risk may obviate the need for employment restrictions on infected HCWs. 2. An Alternative Plan for HIV-Infected HCWs An underlying theme among all the proposed federal legislation was that HIV-infected HCWs should be restricted from performing exposureprone invasive procedures. Although the CDC's recommendations were less restrictive than other approaches, they too advised that infected HCWs should refrain from performing exposure-prone procedures.261 Similarly, a review of both proposed and enacted state legislation demonstrates that restrictions on HIV-infected HCWs are inevitable.262 Moreover, as the earlier summary of discrimination statutes and case law revealed, courts have and likely will continue to find that the risk of HCW-to-patient transmission of HIV is significant enough to justify employment restrictions.263 The willingness of courts to uphold employment restrictions on HIVinfected HCWs disturbed numerous medical organizations. AIDS activists, HCWs, and medical groups lobbied intensely against restrictions. This led one legislator to conclude that attention was focused inappropriately on the civil rights of HCWs rather than on the more critical issue of the public's health.264 As one AIDS commentator aptly noted: "[T]he debate was not (2) Extract the needle from the tissues with forceps, not fingers. (3) Pull a suture through the tissues by grasping the suture itself, not the needle. (4) Position the needle in the jaws of the needle holder with forceps, not fingers. 258

Id. A laparoscopic technique involves the insertion of a long slender optical instrument through the abdominal wall for the purpose of visualizing the peritoneal cavity. WEBSTER'S MEDICAL DESK DICTIONARY 374 (1986).

259

260

261 262

263 264

Id. Another study estimated that blood contacts would be substantially reduced if H C W s wore water-tight surgical gowns, rubber boots, two pairs of gloves, and a second pair of sleeves. Gerberding, Surgery and AIDS: Reducing the Risk, 265 J . A . M . A . 1572 (1991). See Wright, et a l . , supra note 100, at 1668 (concluding that "alteration in the manufacture or number of gloves worn may be helpful in reducing cutaneous blood exposures"). See supra notes 124-26 and accompanying text. Every proposal, from the Helms' criminal sanctions approach, to the Dole-Hatch C D C approach, involved a provision for restricting the employment of HIV-infected HCWs. See supra notes 154-63 and accompanying text. See supra text accompanying note 8 2 .



395

about patients' rights at all, but about restricting the employment rights of HIV-infected health care professionals."265 Separating those issues, however, is a troublesome task. HCW advocates maintain that once a HCW discloses a positive HIV status, the HCW will face a substantial or complete loss of business.266 Moreover, polls consistently indicate that patients generally would discontinue treatment with an HIV-infected HCW.267 Thus, the issue of discrimination is not easily extricated from the issue of restricting HIV-infected HCWs. The sting of restrictions may be alleviated, however, through the use of practical alternatives that are available to HCWs who are involved in high risk procedures. Because employment restrictions on HIV-infected HCWs are inevitable, several medical malpractice insurance companies have established disability plans to help ease the resulting financial hardship. These plans generally provide a one-time payment to the HIV-infected physician or dentist. At least two companies have a minimum payment of $150,000. Additional coverage of up to $500,000 is also available.268 In addition to benefitting the HCWs, disability plans are also advantageous to medical malpractice insurance companies. Before these disability plans were offered, medical malpractice insurance carriers faced tremendous liability. For example, CNA, the Florida dentist's malpractice carrier, paid out $3 million in settlements with the first three HIV-infected patients. These companies therefore had a strong incentive to offer a policy that would encourage HIV-infected HCWs to retire or substantially modify their practice. Notably, CNA was one of the first companies to establish HIV disability coverage. One of the company's proffered reasons for instituting the plan, was the goal of giving HIV-infected HCWs the incentive to restrict or retire from their practice.269 Another disability plan contained an 265

266

267 268

269

Gostin, The HIV-infected Health Care Professional: Public Policy, Discrimination, and Patient Safety, 18 LAW, M E D . & HEALTH CARE 3 (1991) (emphasis in original). See, e.g., Orentlicher, HIV-infected Surgeons: Behringer v. Medical Center, 266 J . A . M . A . 1134 (1991) (the author noted that "[o]nce a physician discloses his or her HIV status, the information is likely to become common knowledge, and the physician will have great difficulty sustaining a practice."). Kantrowtiz, et al., supra note 9. While the availability of disability plans might be a short-term solution to HIV-infected physicians and dentists, the costs involved in HIV treatment average more than $50,000 over the course of the illness. Green & Arno, The "Medicaidization" of AIDS, 254 J . A . M . A . 1261 (1990). Thus, $150,000, or even $500,000, may not adequately support an HIV-infected HCW. Another company, the Physicians Insurance Company of Ohio (PICO), established a disability policy as well. The plan provides for a minimum one time payment of $100,000 to HIV-infected H C W s who cease or modify their duties. Further, the policy eliminated many of the restrictions normally present in disability policies. For example, HIV-infected HCWs are not required to wait for a diagnosis of AIDS before receiving the funds. In addition, the plan permits H C W s to procure additional coverage of up to $500,000.

396

MARGOLIS

"infectious disease endorsement which will . . . help minimize whatever temptation there may be for practitioners to ignore the problem."270 Disability insurance plans for HIV-infected HCWs will help ease their financial burdens; however, these plans by no means offer a panacea.


CONCLUSION Kimberly Bergalis, the first HIV-infected dental patient, lobbied for legislation to restrict the duties of HIV-infected HCWs. Her efforts were magnified by nationwide publicity. Surveys indicated that a majority of Americans wanted to know if their HCW was HIV-infected. Accordingly, lawmakers proposed bills that were designed to prevent further cases of iatrogenic transmission of HIV. One approach would have imposed criminal sanctions on HCWs who failed to disclose their HIV status to patients. The more moderate approach proposed that HCWs should use universal precautions and restrict their duties in limited instances if they become infected with HIV. After much debate, Congress ultimately approved the more moderate approach. That measure required states to adopt the CDC's guidelines or their equivalent for preventing transmission of HIV in the health care setting. Although the compromise measure was less restrictive than other proposals, it recommended that HIV-infected HCWs should refrain from performing certain procedures. Because of a paucity of data on the actual risks of HIV transmission in the health care setting, there is no simple solution to its prevention. However, some actions will at least minimize the risks. For example, modification of surgical equipment and techniques will reduce the number of blood contacts during certain procedures. Finally, because restrictions on HIV-infected physicians and dentists are inevitable, disability insurance plans provide one measure of financial relief. They will provide HCWs with a financial cushion in the unfortunate event that they become infected with HIV. These solutions are obviously not foolproof. However, they do represent sensible approaches in the battle against AIDS. Until this battle is won, health care officials and lawmakers alike must continue in their commitment to exercise leadership based on sound science and informed public health practices. Only through a sustained commitment can this war ultimately be won.

270

PICO Announces Enhanced Coverage for Health Care Professionals, Business Wire, Dec. 11, 1991.

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Preventing HIV transmission to health care workers.

Transmission of HIV-associated tuberculosis to health-care workers.

Transmission of HIV-associated tuberculosis to health-care workers.

Transmission of HIV-associated tuberculosis to health-care workers.

AIDS Health Care Services.

Occupational HIV infection and health care workers in the tropics.

AIDS: Perception of Health Care Workers in Rural Areas of Oyo State.

AIDS knowledge and occupational risk in primary care health workers from Chile.

AIDS knowledge and occupational risk in primary care health workers from Chile.

Safeguarding health care workers.

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Universal precautions to prevent HIV transmission to health care workers: an economic analysis.

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Warfarin, genes, and the (health care) environment.

Bullying in the health care environment.

Testing of health care workers.

The role of the intensive care unit environment and health-care workers in the transmission of bacteria associated with hospital acquired infections.

Transforming the health care environment collaborative.

Tuberculosis in health care workers in Belarus.

Health care workers and ICU pain perceptions.

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