SEMINARS I N NEUROLOGY-VOLUME
12, N O . 1 MARCH 1992
HISTORICAL NOTES
Doctor Vector
We authors of this "then-and-now" article about doctors as carriers of death to their patients approach our subject from different perspectives: the viewpoint of a neurologist (DG) with an interest in last-century medicine, when his specialty was being born; and that of a lawyer with special expertise in health care law (LCL). In important ways, the present-day situation with regard to the doctor as a potential vector of AIDS inverts the situation that existed a century and a half ago with regard to puerperal, or childbed, fever: Then, some physicians posed a grave and unrecognized threat of infecting and thus killing their patients. Now, despite intense scrutiny of the possible role of physicians in spreading AIDS in the course of their professional activity, no evidence has been adduced to make that danger seem at all threatening. Then, a clear-sighted physician, Ignatz Semmelweis, struggled, with only slow and limited success, to convince his fellow practitioners of obstetrics that they must adopt precautionary measures of antisepsis to prevent the spread of disease to their patients-measures for which they "failed to see the value and justification."' Now, members of the medical and allied health care professions who harbor the AIDS virus appear (with rare exceptions) to be acting responsibly and effectively to avoid infecting patients in the course of their professional activities. (A threat to patients on a grand scale did allegedly arise through the irresponsibility of doctors in France in 1984-1985, when physician-officials of the National Transfu-
sion Center and the Health Ministry failed to warn patients about blood products they knew to be contaminated with the AIDS virus, or to prevent the products from being distributed.' Because of the substantial difference between this catastrophe and the direct one-to-one transmissions from doctor to patient under consideration here, we have put it in parentheses, although not with any intent to minimize its importance.) Then, members of the lay public knew only that a pestilence hovered over the lying-in hospitals, but had no way to incriminate the doctor as the bringer of death, and certainly had no idea of how to protect themselves. Now, public citizens have been too readily persuaded that they are in great danger of contracting AIDS from their doctors, and many insist that sweeping measures such as the mandatory testing of all health care providers must be instituted for their protection. These points are summarized in Table 1. For author DG, the first encounter with the story of childbed fever occurred about a third of the way back from "now" to "then," if "then" is identified as being precisely 150 years ago (1842), when, in October, the worst month of the puerperal fever epidemic that was decimating women in Vienna, the death rate on the ward of the First Maternity Clinic of the Allgemeines Krankenhaus reached 29.3%.1.3It was half a century ago that DG first heard his mother tell him a story that took him back another half-century, to the closing decade of the 1800s: it was about his grandmother and the birth of one of the first of her eight children.
*Department of Neurology, University of Rochester School of Medicine and Dentistry, Rochester, New York tSaperston & Day, P.C., Attorneys at Law, Buffalo, Rochester and Syracuse, New York Reprint requests: Dr. Goldblatt, Box 673, University of Rochester Medical Center, Rochester NY 14642 Copyright O 1992 by Thieme Medical Publishers, Inc., 381 Park Avenue South, New York, NY 10016. All rights reserved.
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David Goldblatt, M.D.* and Linda C. Laing, J.D.?
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VOLUME 12, NUMBER 1
MARCH 1992
common in the days before antibiotics. BrownSCquard, for example, nearly succumbed to the same type of injury and its complication^.^) In C,,i,dbedFever (1 840s) (1990s) Kolletschka's body at autopsy were the same eviIs the doctor a serious threat Yes NO dences of "pyemia" that Semmelweis recognized in to patients? the bodies of the women who were dying under his Do doctors understand this? No Yes care: this was not a "women's disease," nor was its Is the public worried about the No Yes only source a patient who already suffered from doctor as vector of disease? ~ h emphasis on a cadaveric it. 'pp87-"9-3p1 ~ l t h o u the source caused many obstetricians who practiced under different circumstances to disregard SemSoon after the baby was born, to put it in the melweis's m e s ~ a g e , ~ phe l ~ ~actually recognized vernacular of her tiny Ohio River town, the new quickly that not only "cadaverous particles" but mother "like-to died." It was the "horse-and-buggy also ichor (serum, pus, or blood from sores or doctor" who was suspected of causing her illness. wounds) from the living could be the cause of The family all believed he went to her bedside soon spreading the infection. lpg3 after currying his horse, and without first properly As has already been mentioned, the medical cleansing his hands. Later, they passed the story on profession was not quickly or easily persuaded, esto DG's mother, and she to him. pecially when, by 1850, (3 years after the "stroke The contribution of Semmelweis to prevent- of lightning") Semmelweis had evolved his thinking infection by instituting antisepsis is well known. ing about childbed fever to the point of believing He probably was the person who introduced scrub- that decaying matter, usually of exogenous origin ~ " sometimes originating in the body of the vicbing with the nailbrush into medical p r a c t i ~ e , l P ~ ~but and he insisted on the use of chloride of lime for tim, was the "necessary [only] cause" of the disease. handwashing. In the maternity hospital in Vienna, Even those who accepted the idea that the doctor's he noticed how many times more likely it was that hands might sometimes carry infection believed, a woman would die of fever, postpartum, if she also, in atmospheric influences, miasma, and emogave birth on one ward-it became his wardtional trauma, among other explanations. For a rather than the other. Today, the explanation in decade, "most of the responses to his work were broad outline, focusing on the caregiver, seems as unfavorable; his ideas were consistently misobvious as the punchline of the "moron jokes" of understood and misrepresented; and he seems not DG's childhood: T h e two morons each owned a to have been taken seriously in Vienna or even in horse; but neither could tell which one was his. Af- Budape~t."lP'~ ter devising many systems that failed, they finally After the world had accepted his teaching, succeeded in telling them apart by measuring them and the later discoveries of bacteriology had each time they wanted to ride. They had discov- brought a fuller understanding of his thesis, Semered that the white horse was two hands taller than melweis still provoked attack. Now, however, it the black one. came in the form of rival claims for priority. The So it was with the two maternity wards, one polemic of a one-time Vice-Chancellor of the Uniserviced by the (male) medical students and physi- versity of Liverpool, for example (while it purcians, the other by the (female) students of mid- ported to decry chauvinism), attempted to show wifery. Nobody had been able to figure out why that British obstetricians at the end of the 18th and the death rate among the patients was so much the beginning of the 19th century, before Semmelhigher in the first than in the second ward. Sem- weis was even born, had a clearer view of the probmelweis surmised that, in those days of the oblig- lem of puerperal fever, and of its solution, than did atory autopsy examination for persons who died in the Hungarian with the German name.6 A last (and literal) attack on Semmelweis may the general hospital, the physicians and medical students who participated brought putrid material have ended his life: Ignatz, suffering from what is from the corpses in the dissecting rooms to the believed to have been Alzheimer's disease, and bedsides of their patients and that ordinary wash- confined in an asylum, in a ward for "maniacs," allegedly was beaten to death by his attendants-in ing was not enough to disinfect their hands. The "stroke of lightningn3 that convinced 1865, soon after he turned 47 years of age.'p58 The concerns that Semmelweis had about the Semmelweis of the crucial role of decaying organic matter from cadavers in causing childbed fever was (healthy) doctor as a passive vector of disease have the death of a physician-friend, Jakob Kolletschka, not disappeared: investigators in England who rewho infected himself through a minor injury dur- cently examined the risk of bacterial contaminaing dissection. (Such consequences were no doubt tion conveyed by doctors' white coats concluded,
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Table 1. Questions about the Doctor as Vector, "Then" and "Now"
"White coats are a potential source of cross infecThen Closen counters his "argument by analtion, especially in surgical areas, [but there is] little ogy," not by saying simply that it is invalid (or that microbial reason for recommending a more fre- he made it up just to be able to refute it!) but by quent change of white coat than once a week."' Al- making this astonishing statement: "The analogy though it was not the purpose of the study to ex- falls apart, however, because we do not at this time amine the doctors' hands, the authors, in motherly approve of assisted suicide or euthanasia, which fashion, also counseled, "Scrupulous hand washing might be the most appropriate comparison to this should be observed before and after attending pa- situation." When someone with whom you are having a tients.""~ we leave this first section of our article, may we ask the readers to join us in singing the reasonable discussion suddenly starts to shriek, praises of Ignatz (to the tune of "Edelweiss")? jump around, and pull out his hair, it may be pos"Sem-mel-weis, Sem-mel-weis! Du bist ein guter sible to wait until he calms down and then go on with the conversation, but we think we can be exMann!" cused for not doing that. A toned-down version of Closen's "argument" Next, we turn to the debate that today surrounds the practice of medicine by the HIV-posi- is expressed by Keyes,' who is especially interested tive physician, to examine these questions: (1) in teaching institutions and students. He ends up Should HIV-infected physicians limit their clinical with a "prudential judgment" against invasive proactivities? (2) Should they inform their patients of cedures by infected providers. The "risk of HIV their HIV status? (3) Is mandatory testing of phy- transmission is too high to consider HIV-positive sicians an appropriate or a necessary means of re- providers who perform invasive procedures othducing the risk of infection in health care settings? erwise qualified." Allowing "the risk of transmisBefore addressing those questions more for- sion to become a reality by exposing even a single mally, we first want to give the reader (the prover- patient to a provider's HIV infection," he warns, bial reader who has been hiding under a rock, and, with all the weight of any sweeping generalization, therefore, not one of our regular subscribers) an "would be to reject the principles of both the medidea of how the debate has been conducted in med- ical and legal communities."Who would dare to do that? ical and other journals. Calling Closen a hysteric and Keyes an ultraMichael C l o s e n , b h o "teaches at John Marshall Law School in Chicago and is an adjunct pro- conservative leaves us listening for less frightened fessor at St. Thomas University College of Law in voices. In a thoughtfully detailed examinalion of Miami," argues for HIV testing of dentists and the risk of HIV transmission to patients, Barnes et physicians, so that those who are positive and who all0 label the risk during even invasive procedures perform invasive procedures will have to "modify as "remote, far from 'significant"' and reach the their job functions." He cannot accept the idea that conclusion that "the bedrock issue is one of ima patient's informed consent to being operated on proving infection control, not forcing qualified, by an infected surgeon or dentist is sufficient pro- productive health professionals out of practice.""' tection. Allowing the surgeon to obtain consent Their article begins by acknowledging the strength may, he says, "be placing the fox as guardian of the of public sentiment in favor of barring infected chicken coop." It is unfair to shift the burden of professionals from practice. By reporting this senprotecting themselves to the patients, who should timent, the authors tacitly acknowledge, also, that be shielded from the infected doctors, not forced their voices are much too calm for many listeners to decide whether or not to object to being treated. to hear. An example of the middle ground is to be The reasonable tone of Closen's argument vanishes, however, in a passage that was high- found in the thinking of Lawrence Gostin. In a palighted by a headline in the middle of his article. per he prepared in 1987, Gostin said that risks "too In this passage, Closen first tries to make the remote to require disclosure" had not been defined reader believe that someone seriously maintains for HIV, nor had a "threshold for the probability the following point of view: of a grave harm beyond which [the HIV-positivity of a physician] must be disclosed."l' It was his opinion that "it is not the proper function of the courts An argument in favor of this new version of informed consent has been made by analogy-that under to list a detailed set of allowed and prohibited medwell-established principles of medicine and law, we perical procedures." Writing prior to any documented mit competent adult persons to refuse medical care, even transmission of HIV from health care worker life-sustaining procedures. In other words, if people (HCW) to patient, he nonetheless concluded, "The have a right to die by refusing medical care, they cerincreasing focus of modern law on the patient's tainly should have a right to choose to be treated by an HIV-AIDS-afflicted doctor.' rights should require a seropositive physician to 77
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78
VOLUME 12, NUMBER 1 MARCH 1992
withdraw from performing seriously invasive pro- to a question posed by an inquirer reading a script cedures if there is a significant risk to the surgeon's into a telephone. Of course, respondents to such patients."" surveys have to be near a telephone and be civicOn the basis of the arguments and official po- minded or spineless enough not to hang up on the sitions that he reviewed, he concluded that system- caller. atic screening for the virus would create "sheer The voice of the people replying to the surveys social and personal burdens" that would "substan- has not wavered: tially outweigh its public health benefit." He was There has been consistent support throughout the epiconcerned for the "personal rights and profes- demic for mandatory testing of health care providers sional livelihood" of the physician, and concluded, and all patients admitted to hospitals or undergoing rou"the right to confidentiality and anti-discrimina- tine medical examinations. As early as 1985, 87% of Americans said that all tion including reasonable accommodation [that is, finding 'rewarding and remunerative' practice op- hospitals should be required to care for AIDS patients. In 1983, at the beginning of the epidemic, a majority portunities for the HIV-positive physician, such as supported a physician's right to choose whether to treat the practice of neurology, that do not involve in- a person with AIDS, by 1990, 75% said physicians vasive procedures] should be viewed as a quid pro should not refuse care to such a patient. However, worry quo for the good faith fulfillment of his or her spe- over HIV transmission in both directions-from patient to caregiver and vice versa-translates into very strong cial professional and ethical obligations."" public support for testing and disclosure on both sides. Looking back on this paper three years after Nearly all Americans (97%) say persons who are HIV he wrote it, Gostin said he was naive to think he positive should be required to tell that information to had been asked to enter a debate about patients' their health providers, but nine in 10 favor testing all rights (to defend those rights). The debate, he dis- physicians, nurses, and other health workers for HIV covered, "was not about patients' rights at all, but and requiring these groups to reveal their HIV status to patients. about restricting the employment rights of HIVIn the event that a health care worker tests positive infected health care professional^."^^ When he for HIV, 49% of Americans think the worker should be reexamined those rights, he posed and answered forbidden to practice. T h e public is even more confive questions (which we address in this article), cerned about those who perform invasive procedures. and concluded that the Centers for Disease Con- Sixty-three percent would forbid surgeons; 60%, dentists; and 51%, all physicians from continuing to practice trol (CDC) "needs to draw a rational line [between if infected. Nearly two thirds say they would discontinue the extremes of 'testing and restriction on a wide treatment with a health provider who was HIV inrange of health care professionals' and 'no limits'] fected.I4 before an irrational line is imposed by the courts and/cr public opinion."'* He recommends a "professional rule" with components of voluntary, I. HIV Infected Physicians: Scope of Practice confidential reporting by HCWs to employers of their HIV positivity; monitoring; refraining from Concern over this issue was rekindled by the "engaging in seriously invasive procedures"; and July 2, 1990, announcement by the CDC of the development of "policies and resources for retrain- first known case of HIV transmission from a ing, support, counseling, and compensation" for health care provider to a patient. This was the case of Kimberly Bergalis, a young Florida woman who HIV-positive HCWs. F e l d b l u m , l ~ l t h o u g h commending Gostin was allegedly infected with the HIV virus by her (who is Executive Director of the American Society dentist, Dr. David Acer.15."jThe CDC, which has of Law and Medicine) for presenting a "useful been promulgating guidelines on HIV infection in framework," disagrees with the suggestion that the health care setting since 1983, held numerous HCWs should practice "voluntary self-deferral . . . hearings in response to the incident and the growfrom a limited set of invasive procedures." Feld- ing concern over AIDS and, on July 15, 1991, isblum expresses the concern that, in practice, such sued guidelines." While emphasizing adherence to universal an approach will lead "inexorably" to demands for compulsory testing. (This argument esscapes us; precautions, the 719 1 CDC guidelines recommend maybe our readers can help us see it. We mention that HCWs (including physicians) who perform init here to show that, even among writers who op- vasive, exposure-prone procedures know their pose mandatory screening, there is still disagree- HIV status. HIV-positive HCWs who perform invasive, exposure-prone procedures are required to ment on other aspects of the problem.) Beyond the journals, beyond the views, ra- seek counsel from an expert review panel before tional or irrational, that have been held at least continuing to perform these procedures. Additionlong enough to be printed, is vox populi, the view ally, the guidelines provide that patients about to held at least long enough to be voiced in response undergo exposure-prone procedures be notified
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of the HCW's HIV-positive status. The guidelines leave it up to individual hospitals to determine which procedures are invasive and exposureprone. In the months following July of 1991, the CDC tried to prevail upon the medical specialty associations to come up with lists of invasive, exposure-prone procedures in each medical specialty. From July to December of 1991, the specialty societies debated the issue. At an American Medical Association meeting in August of 1991, medical, nursing and other health care groups decided that they would not develop lists of exposureprone procedures. This refusal was premised on the perceived lack of medical evidence demonstrating that there was other than an infinitesimal risk of transmissions in the health care setting and the belief that lists of procedures would only increase the already growing public hysteria. Finally, in December of 1991, the CDC, faced with overwhelming pressure from medical groups, abandoned its plans to create a detailed list of invasive, exposure-prone medical procedures. It is now in the process of developing new guidelines. The New York State Department of Health (NYSDOH) opposed the 711219 1 CDC guidelines from the outset. On 1018191 the NYSDOH issued its own guidelines, stating: HIV infection alone does not justify limiting a health care worker's professional duties. There is no need to alter the professional practice of an HIV infected health care worker unless hisfher health status and functional ability interfere with job performance. This should be determined by a case-by-case e v a l ~ a t i o n . ' ~
The guidelines establish a state-appointed review panel to conduct voluntary evaluations of HIV-infected HCWs who perform invasive procedures that might increase the risk of worker-topatient blood exposure or for those with functional impairments that could impact on their ability to provide care. A panel of experts (including the HCW's private physician) will determine whether the HCW poses a significant risk to patients which warrants job modifications, limitations, or restrictions. The determination is to be based on several factors, including: 1. Stage of the HCW's illness and its effects on ability to provide care; 2. Susceptibility of the HCW to opportunistic infections; 3. Presence of lesions on the skin of the HCW; 4. Functional ability of the HCW to perform assigned tasks or regular duties; 5. The HCW's compliance with infection control;
6. Nature of invasive procedures performed and techniques used by the HCW.18 In November of 1991 the NYSDOH held public hearings and entertained comment on its 10191 guidelines. Final regulations, which physicians practicing in New York will be required to follow, are expected in the next few months. Also in November of 1991, President Bush signed a federal law requiring each state to adopt either the CDC's or similar guidelines. Accordingly, we expect that the NYSDOH will consider the new (not yet promulgated) CDC guidelines before making its own regulations final. An HIV-positive physician was forced to resign from a hospital in New York State because of his HIV status. The hospital took the position that the doctor's resignation was necessary to achieve compliance with the 7/91 CDC guidelines. The hospital took this action prior to 10191, when the NYSDOH issued its guidelines. According to NYSDOH officials with whom one of us (LCL) discussed the case in September of 199 1, the hospital overreacted to the situation and should not have asked the doctor, an emergency-room physician, to resign. Another physician limited because of his HIV positivity was William Behringer, a New Jersey surgeon whose privileges were restricted by the Medical Center at Princeton. The determination of the Medical Center was upheld in court. Estate of William Behringer, M.D. v. The Medical Center at Frinceton, et al., 249 N.J.Super. 597, 592 A.2d- 1251 (N.J.Super.Ct. 1991). Fortunately, there is little support from the public in the United StatesJ4for the notion that HIV-infected physicians should be confined in sanatoria, like the physicians who spent their lives in leper colonies, although Cuba, which claims a very low rate of HIV infection, has tried that approachlg and we know at least one United States physician who has similarly, although less formally, been compelled to restrict his practice to the care of AIDS patients.
11. Obligation of HIV-Infected Physicians to Inform Patients of their HIV Status On 711819 1, the United States Senate adopted a bill proposed by Senator Jesse Helms-R, N.C., mandating prison terms of at least 10 years and fines of up to $10,000 for HCWs who knew they had AIDS but failed to inform patients on whom they performed invasive procedures. The vote was 8 1 to 18. Hearings were held in September of 1991 and vote by the House of Representatives is pending. Senator Helms' argument in favor of his billz0 79
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HISrORICAL NOTES
SEMINARS IN NEUROLOGY
Requiring health care workers to inform patients or employers that they are HIV positive will only serve as a deterrent to workers seeking voluntary testing and medical evaluation. It would also endanger the professional careers of competent and needed health care personnel who pose no risk to patients.
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These guidelines are consistent with Section 2782 bf the Public Health Law which affords confideniiality to HIV status. At a January 29, 1992, conference concerning the legal issues of HIVIAIDS and the HCW, sponsored by the New York State Bar Association Special Committee on AIDS and the Law, Dr. David E. Rogers, Vice Chairman of the National Commission on AIDS, supported the NYSDOH guidelines and expressed the opinion that informed consent has never required doctors to disclose every conceivable risk to patients4nly those that are material or reasonably foreseeable. The remote risk of HIV transmission from doctor to patient need not be disclosed as part of the informed consent process. Whether patients should be informed of a physician's HIV-positive status after treatment has been rendered is another question under consideration. Recently, doctors from the Minnesota Department of Health recommended that people who were treated by AIDS-infected doctors not be routinely contacted and tested for the AIDS virus unless there is a clear risk that the infection was transmitted or the doctor violated standards of infection control practices. The reason: several "lookback investigations conducted of patients
treated by HIV-infected physicians revealed no infected patients."
111. HIV Testing
The hospital environment poses obvious risks for the transmission of HIV infection.23Although medical evidence suggests that the risk of transmission in the hospital setting is small, HCWs are concerned about potential exposure to infection through accidental needlesticks or punctures, or through exposure to infected blood or body fluids via unprotected mucous membranes or nonintact skin. Patients, on the other hand, are concerned that treatment by infected HCWs may pose a risk. (Eighty-eight author-investigators recently reported that, of 336 patients who underwent digital examination of a body cavity or vaginal delivery performed by an HIV-infected physician while he was suffering from severe mycobacterial dermatitis of hands and forearms, none was shown to become HIV positive; 97% permitted testing and were found to be HIV negati~e.'~) A. Debate on Prevention Programs: Testing us Universal Precautions The debate on prevention programs in health care facilities has focused on two approaches to reducing the risk of infection: (1) implementation of universal precautions throughout a facility; (2) screening of hospital patients and staff to determine their HIV antibody status. 1 . Proponents of Universal Precautions The CDC, the American Hospital Association (AHA), and the NYSDOH have endorsed the use of universal blood and body fluid precautions (known as "universal precautions") as the most effective means of preventing transmission of HIV infection in health care settings. T h e use of universal precautions was recently given the force of law in the 12191 OSHA Final Rule.24 Proponents of universal precautions believe that treating all blood and bodily fluids as infected and consistently, and without exception, employing barrier protections (gloves, mask, etc.) can effectively protect individuals. Because infected patients and HCWs cannot be reliably identified by screening tests, precautions must be used by all HCWs for all patients in both institutional and noninstitutional settings, including emergency departments, outpatient clinics, ambulatory care settings, and physicians' and dentists' offices. In short, they must function as though everyone is infected. 2. Advocates of Screening a. Screening Patients: Some advocates of screening have called for routine screening of all hospital patients or "high risk individuals" or of pa-
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and a rebuttal" contending that infection control, not punitive measures, will prevent transmission of infection have recently been presented to the legal profession. The CDC, the American Medical Association, the State of New Jersey, and the State of Illinois also favor patient notification. New Jersey's position is put forth in the Behringer case already mentioned. In Behringer, the New Jersey Superior Court upheld the decision of the Princeton Medical Center to restrict the AIDS-infected surgeon's privileges because he refused to inform patients of his HIV status. In late 199 1 Illinois enacted legislation requiring the Illinois Department of Public Health to determine whether the patients of doctors or dentists diagnosed as having HIV or AIDS may have been at risk of contracting HIV from the infected practitioner and to ensure notification (by either the practitioner or the Department) of those patients determined to have been at risk. New York State takes a different position. T h e 1018191 guidelines of the NYSDOH state:
VOLUME 12, NUMBER 1 MARCH 1992
tients scheduled for major surgery. In its 1/91 guidelines, the AMA recommended voluntary testing, with informed consent, of patients admitted for surgery or other invasive procedures. In May of 1991, the Medical Society of New Jersey called for mandatory testing of all hospital patients. In New York, there is no official support for mandatory testing of patients. In May of 1991, the New York State Court of Appeals issued a decision that rejected a plea from the New York State Medical Society for mandatory testing of patients for AIDS. New York Society of Surgeons v. Axelrod, 77 N.Y. 2d 677, 569 N.Y.S. 2d 922 (1991). Additionally, the 1018191 NYSDOH guidelines oppose mandatory testing of patients.18 b. Screening of Health Care Workers: Screening of HCWs has also been proposed as a means of tracking HIV infection rates and alerting hospital administrators to the presence of infected employees, especially those directly involved in patient care o r contact. However, it should be noted that both the CDC" and the NYSDOH18 recently rejected mandatory testing of all HCWs. The NYSDOH recommends, instead, voluntary testing for HCWs who share risk factors with the general population andlor who perform invasive procedures. The CDC recommended voluntary testing for HCWs who perform exposure-prone, invasive procedures. A recent statement from the Royal College of Surgeons included the information that, in the United Kingdom, no case of HIV transmission from surgeon to patient has been reported. The risk of this happening was judged to be extremely small, and regular screening of surgeons was not re~ornmended.~~ At the January 29, 1992, conference on AIDS and the Health Care Worker, mentioned earlier, one speaker observed that a far greater risk is posed by physicians who are incompetent or who abuse drugs than by those who are HIV-positive, and recommended that hospitalts test not the blood but rather the hands and minds of their staff physicians.
CONCLUSION In their zeal to protect patients and coworkers from transmission of HIV/AIDS in health care settings by mandating HIV testing, imposing restrictions on HIV-positive practitioners, or requiring disclosure of HIV status, health care providers must be mindful of protection afforded to practitioners by antidiscrimination laws and laws that render HIV status confidential: The Federal Rehabilitation Act of 1973, Section 504; The Americans with Disabilities Act; and the New York State
Human Rights Law all prohibit discrimination based on handicapldisability. Under all three provisions, HIV-positive status is considered a handicapldisability. Public Health Law Section 2782 provides a heavy cloak of confidentiality to HIV status. We have concentrated on some of the differences between attitudes toward childbed fever "then" and AIDS "now." Beyond them lie similarities. Notably, the early perception of puerperal fever as a "women's disease," at a time when women's lives were devalued in many ways, led to insufficient attention to the problem. Attitudes changed when it became clear that the fever was an infectious condition and that, therefore, both men and women were vulnerable. A similar shift in thinking is beginning to emerge with regard to AIDS, but, as we know from the latest surveys, we cannot be euphoric about it: Despite indicators that Americans are becoming less likely to express hostility toward people with AIDS, it is clear that persons with this disease will continue to confront the problem of prejudice, especially if they are in a risk group that is identifiable and unacceptable to substantial numbers of Americans.14 As was true with childbed fever, AIDS is really everybody's problem, and that realization eventually may substitute reasonable caution for xenophobic overreaction and good sense for hysteria. We hope so.
REFERENCES 1. Semmelweis 1. T h e etiology, concept, and prophylaxis of childbed fever. Translated and Edited, with an Introduction, by K. Codell Carter. Madison, W1:University of Wisconsin Press, 1983 2. Breo DL. Blood, money, and hemophiliacs-the fatal story of France's 'AIDSgate.'JAMA 1991;266:3477-82 3. Antall J, Szebelledy G. Pictures from the history of medicine. The Semmelweis Medical Historical Museum, Budapest. Budapest:Corvina Press, 1973 4. Olmsted J . Charles-~douard Brown-Sequard-a nineteenth-century neurologist and endocrinologist. Baltimore:Johns Hopkins Press, 1946 5. Slaughter FG. Immortal Magyar. Semmelweis, conqueror of childbed fever. New York:Henry Schuman, 1950: 105-6 6. Adami J.G. Charles White of Manchester (1728-1813), and the arrest of puerperal fever. Liverpool:Paul B. Hoeber, 1923 7. Wong D. Nyek K, Hollis P. Microbial flora on doctors' white coats. BMJ 1991;303: 1602-4 8. Closen ML. When a doctor has AIDS. National Law Journal, Monday, Sept. 9, 1991: 15-6 9. Keyes GG. Health-care professionals with AIDS: the risk of transmission balanced against the interests of professions and institutions. J College Univ Law 1990; 16:589-619 10. Barnes M, Rango NA, Burke GR, Chiarello L. The HIVinfected health care professional: employment policies arid public health. Law Med Health Care 1990;18:31130
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11. Gostin L. HIV-infected physicians and the practice of seriously invasive procedures. Hastings Cent Rep 1989; 19:32-9 12. Gostin L. T h e HIV-infected health care professional: public policy, discrimination, and patient safety. Law Med Health Care 1990; 18:303-10 13. Feldblum CR. A response to Gostin, "The HIV-infected health care professional: public policy, discrimination, and patient safety." Law Med Health Care 1991; 19: 134-9 14. Blendon RJ, Donelan K, Knox RA. Public opinion and AIDS-lessons for the second decade. JAMA 1992; 267:981-6 15. Centers for Disease Control. Possible transmission of huvirus to a patient during an inman ir~~rnunodel'ic~iency vasive derltal vrocedure. MMM'R 1990:39:189-93 16. Centers for ~ i i e a s eControl. Update: transmission of HIV infection during an invasive dental procedureFlorida. MMWR 1991;40:2 1-7,33 17. Centers for Disease Control. Recommendations for preventing transmission of human immunodeficiency virus and hepatitis B virus to patients during exposureprone invasive procedures. MMWR 1991;40, No. RR8: 1-9
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18. New York State Department of Health. Policy statement and action plan to prevent transmission of HIV through medicalldental procedures. Oct. 8, 1991 19. Kim S. AIDS in Cuba. J Univ Rochester Med Cent 1991;3(2):33-6 20. Helms Sen. J. The AIDS-infected physician. Are criminal penalties necessary to protect the public health? Yes: protect innocent victims. ABA Journal, Oct. 1991:46 21. lsbell M. The AIDS-infected physician. Are criminal penalties necessary to protect the public health? No: don't scapegoat doctors. ABA Journal, Oct. 1991:47 22. Danila RN, MacDonald KL, Rhame FS, et al. A look-back investigation of patients of an HIV-infected physician. N Engl J Med 1991;325: 1406-1 1 23. Chamberland ME, Conley LJ, Bush TJ, et al. Health care workers with AIDS-national surveillance update. JAMA 1991;266:3459-62 24. OSHA Final Rule, 29CFR Pt.1910.1030, Dec. 6, 1991. Occupational exposure to bloodborne pathogens; final rule. Federal Register 1991;56(235):64004-182 25. Walker A. Surgeons and HIV. BMJ 1991;302:136
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12, N O . 1 MARCH 1992
HISTORICAL NOTES
Doctor Vector
We authors of this "then-and-now" article about doctors as carriers of death to their patients approach our subject from different perspectives: the viewpoint of a neurologist (DG) with an interest in last-century medicine, when his specialty was being born; and that of a lawyer with special expertise in health care law (LCL). In important ways, the present-day situation with regard to the doctor as a potential vector of AIDS inverts the situation that existed a century and a half ago with regard to puerperal, or childbed, fever: Then, some physicians posed a grave and unrecognized threat of infecting and thus killing their patients. Now, despite intense scrutiny of the possible role of physicians in spreading AIDS in the course of their professional activity, no evidence has been adduced to make that danger seem at all threatening. Then, a clear-sighted physician, Ignatz Semmelweis, struggled, with only slow and limited success, to convince his fellow practitioners of obstetrics that they must adopt precautionary measures of antisepsis to prevent the spread of disease to their patients-measures for which they "failed to see the value and justification."' Now, members of the medical and allied health care professions who harbor the AIDS virus appear (with rare exceptions) to be acting responsibly and effectively to avoid infecting patients in the course of their professional activities. (A threat to patients on a grand scale did allegedly arise through the irresponsibility of doctors in France in 1984-1985, when physician-officials of the National Transfu-
sion Center and the Health Ministry failed to warn patients about blood products they knew to be contaminated with the AIDS virus, or to prevent the products from being distributed.' Because of the substantial difference between this catastrophe and the direct one-to-one transmissions from doctor to patient under consideration here, we have put it in parentheses, although not with any intent to minimize its importance.) Then, members of the lay public knew only that a pestilence hovered over the lying-in hospitals, but had no way to incriminate the doctor as the bringer of death, and certainly had no idea of how to protect themselves. Now, public citizens have been too readily persuaded that they are in great danger of contracting AIDS from their doctors, and many insist that sweeping measures such as the mandatory testing of all health care providers must be instituted for their protection. These points are summarized in Table 1. For author DG, the first encounter with the story of childbed fever occurred about a third of the way back from "now" to "then," if "then" is identified as being precisely 150 years ago (1842), when, in October, the worst month of the puerperal fever epidemic that was decimating women in Vienna, the death rate on the ward of the First Maternity Clinic of the Allgemeines Krankenhaus reached 29.3%.1.3It was half a century ago that DG first heard his mother tell him a story that took him back another half-century, to the closing decade of the 1800s: it was about his grandmother and the birth of one of the first of her eight children.
*Department of Neurology, University of Rochester School of Medicine and Dentistry, Rochester, New York tSaperston & Day, P.C., Attorneys at Law, Buffalo, Rochester and Syracuse, New York Reprint requests: Dr. Goldblatt, Box 673, University of Rochester Medical Center, Rochester NY 14642 Copyright O 1992 by Thieme Medical Publishers, Inc., 381 Park Avenue South, New York, NY 10016. All rights reserved.
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David Goldblatt, M.D.* and Linda C. Laing, J.D.?
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VOLUME 12, NUMBER 1
MARCH 1992
common in the days before antibiotics. BrownSCquard, for example, nearly succumbed to the same type of injury and its complication^.^) In C,,i,dbedFever (1 840s) (1990s) Kolletschka's body at autopsy were the same eviIs the doctor a serious threat Yes NO dences of "pyemia" that Semmelweis recognized in to patients? the bodies of the women who were dying under his Do doctors understand this? No Yes care: this was not a "women's disease," nor was its Is the public worried about the No Yes only source a patient who already suffered from doctor as vector of disease? ~ h emphasis on a cadaveric it. 'pp87-"9-3p1 ~ l t h o u the source caused many obstetricians who practiced under different circumstances to disregard SemSoon after the baby was born, to put it in the melweis's m e s ~ a g e , ~ phe l ~ ~actually recognized vernacular of her tiny Ohio River town, the new quickly that not only "cadaverous particles" but mother "like-to died." It was the "horse-and-buggy also ichor (serum, pus, or blood from sores or doctor" who was suspected of causing her illness. wounds) from the living could be the cause of The family all believed he went to her bedside soon spreading the infection. lpg3 after currying his horse, and without first properly As has already been mentioned, the medical cleansing his hands. Later, they passed the story on profession was not quickly or easily persuaded, esto DG's mother, and she to him. pecially when, by 1850, (3 years after the "stroke The contribution of Semmelweis to prevent- of lightning") Semmelweis had evolved his thinking infection by instituting antisepsis is well known. ing about childbed fever to the point of believing He probably was the person who introduced scrub- that decaying matter, usually of exogenous origin ~ " sometimes originating in the body of the vicbing with the nailbrush into medical p r a c t i ~ e , l P ~ ~but and he insisted on the use of chloride of lime for tim, was the "necessary [only] cause" of the disease. handwashing. In the maternity hospital in Vienna, Even those who accepted the idea that the doctor's he noticed how many times more likely it was that hands might sometimes carry infection believed, a woman would die of fever, postpartum, if she also, in atmospheric influences, miasma, and emogave birth on one ward-it became his wardtional trauma, among other explanations. For a rather than the other. Today, the explanation in decade, "most of the responses to his work were broad outline, focusing on the caregiver, seems as unfavorable; his ideas were consistently misobvious as the punchline of the "moron jokes" of understood and misrepresented; and he seems not DG's childhood: T h e two morons each owned a to have been taken seriously in Vienna or even in horse; but neither could tell which one was his. Af- Budape~t."lP'~ ter devising many systems that failed, they finally After the world had accepted his teaching, succeeded in telling them apart by measuring them and the later discoveries of bacteriology had each time they wanted to ride. They had discov- brought a fuller understanding of his thesis, Semered that the white horse was two hands taller than melweis still provoked attack. Now, however, it the black one. came in the form of rival claims for priority. The So it was with the two maternity wards, one polemic of a one-time Vice-Chancellor of the Uniserviced by the (male) medical students and physi- versity of Liverpool, for example (while it purcians, the other by the (female) students of mid- ported to decry chauvinism), attempted to show wifery. Nobody had been able to figure out why that British obstetricians at the end of the 18th and the death rate among the patients was so much the beginning of the 19th century, before Semmelhigher in the first than in the second ward. Sem- weis was even born, had a clearer view of the probmelweis surmised that, in those days of the oblig- lem of puerperal fever, and of its solution, than did atory autopsy examination for persons who died in the Hungarian with the German name.6 A last (and literal) attack on Semmelweis may the general hospital, the physicians and medical students who participated brought putrid material have ended his life: Ignatz, suffering from what is from the corpses in the dissecting rooms to the believed to have been Alzheimer's disease, and bedsides of their patients and that ordinary wash- confined in an asylum, in a ward for "maniacs," allegedly was beaten to death by his attendants-in ing was not enough to disinfect their hands. The "stroke of lightningn3 that convinced 1865, soon after he turned 47 years of age.'p58 The concerns that Semmelweis had about the Semmelweis of the crucial role of decaying organic matter from cadavers in causing childbed fever was (healthy) doctor as a passive vector of disease have the death of a physician-friend, Jakob Kolletschka, not disappeared: investigators in England who rewho infected himself through a minor injury dur- cently examined the risk of bacterial contaminaing dissection. (Such consequences were no doubt tion conveyed by doctors' white coats concluded,
76
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Table 1. Questions about the Doctor as Vector, "Then" and "Now"
"White coats are a potential source of cross infecThen Closen counters his "argument by analtion, especially in surgical areas, [but there is] little ogy," not by saying simply that it is invalid (or that microbial reason for recommending a more fre- he made it up just to be able to refute it!) but by quent change of white coat than once a week."' Al- making this astonishing statement: "The analogy though it was not the purpose of the study to ex- falls apart, however, because we do not at this time amine the doctors' hands, the authors, in motherly approve of assisted suicide or euthanasia, which fashion, also counseled, "Scrupulous hand washing might be the most appropriate comparison to this should be observed before and after attending pa- situation." When someone with whom you are having a tients.""~ we leave this first section of our article, may we ask the readers to join us in singing the reasonable discussion suddenly starts to shriek, praises of Ignatz (to the tune of "Edelweiss")? jump around, and pull out his hair, it may be pos"Sem-mel-weis, Sem-mel-weis! Du bist ein guter sible to wait until he calms down and then go on with the conversation, but we think we can be exMann!" cused for not doing that. A toned-down version of Closen's "argument" Next, we turn to the debate that today surrounds the practice of medicine by the HIV-posi- is expressed by Keyes,' who is especially interested tive physician, to examine these questions: (1) in teaching institutions and students. He ends up Should HIV-infected physicians limit their clinical with a "prudential judgment" against invasive proactivities? (2) Should they inform their patients of cedures by infected providers. The "risk of HIV their HIV status? (3) Is mandatory testing of phy- transmission is too high to consider HIV-positive sicians an appropriate or a necessary means of re- providers who perform invasive procedures othducing the risk of infection in health care settings? erwise qualified." Allowing "the risk of transmisBefore addressing those questions more for- sion to become a reality by exposing even a single mally, we first want to give the reader (the prover- patient to a provider's HIV infection," he warns, bial reader who has been hiding under a rock, and, with all the weight of any sweeping generalization, therefore, not one of our regular subscribers) an "would be to reject the principles of both the medidea of how the debate has been conducted in med- ical and legal communities."Who would dare to do that? ical and other journals. Calling Closen a hysteric and Keyes an ultraMichael C l o s e n , b h o "teaches at John Marshall Law School in Chicago and is an adjunct pro- conservative leaves us listening for less frightened fessor at St. Thomas University College of Law in voices. In a thoughtfully detailed examinalion of Miami," argues for HIV testing of dentists and the risk of HIV transmission to patients, Barnes et physicians, so that those who are positive and who all0 label the risk during even invasive procedures perform invasive procedures will have to "modify as "remote, far from 'significant"' and reach the their job functions." He cannot accept the idea that conclusion that "the bedrock issue is one of ima patient's informed consent to being operated on proving infection control, not forcing qualified, by an infected surgeon or dentist is sufficient pro- productive health professionals out of practice.""' tection. Allowing the surgeon to obtain consent Their article begins by acknowledging the strength may, he says, "be placing the fox as guardian of the of public sentiment in favor of barring infected chicken coop." It is unfair to shift the burden of professionals from practice. By reporting this senprotecting themselves to the patients, who should timent, the authors tacitly acknowledge, also, that be shielded from the infected doctors, not forced their voices are much too calm for many listeners to decide whether or not to object to being treated. to hear. An example of the middle ground is to be The reasonable tone of Closen's argument vanishes, however, in a passage that was high- found in the thinking of Lawrence Gostin. In a palighted by a headline in the middle of his article. per he prepared in 1987, Gostin said that risks "too In this passage, Closen first tries to make the remote to require disclosure" had not been defined reader believe that someone seriously maintains for HIV, nor had a "threshold for the probability the following point of view: of a grave harm beyond which [the HIV-positivity of a physician] must be disclosed."l' It was his opinion that "it is not the proper function of the courts An argument in favor of this new version of informed consent has been made by analogy-that under to list a detailed set of allowed and prohibited medwell-established principles of medicine and law, we perical procedures." Writing prior to any documented mit competent adult persons to refuse medical care, even transmission of HIV from health care worker life-sustaining procedures. In other words, if people (HCW) to patient, he nonetheless concluded, "The have a right to die by refusing medical care, they cerincreasing focus of modern law on the patient's tainly should have a right to choose to be treated by an HIV-AIDS-afflicted doctor.' rights should require a seropositive physician to 77
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78
VOLUME 12, NUMBER 1 MARCH 1992
withdraw from performing seriously invasive pro- to a question posed by an inquirer reading a script cedures if there is a significant risk to the surgeon's into a telephone. Of course, respondents to such patients."" surveys have to be near a telephone and be civicOn the basis of the arguments and official po- minded or spineless enough not to hang up on the sitions that he reviewed, he concluded that system- caller. atic screening for the virus would create "sheer The voice of the people replying to the surveys social and personal burdens" that would "substan- has not wavered: tially outweigh its public health benefit." He was There has been consistent support throughout the epiconcerned for the "personal rights and profes- demic for mandatory testing of health care providers sional livelihood" of the physician, and concluded, and all patients admitted to hospitals or undergoing rou"the right to confidentiality and anti-discrimina- tine medical examinations. As early as 1985, 87% of Americans said that all tion including reasonable accommodation [that is, finding 'rewarding and remunerative' practice op- hospitals should be required to care for AIDS patients. In 1983, at the beginning of the epidemic, a majority portunities for the HIV-positive physician, such as supported a physician's right to choose whether to treat the practice of neurology, that do not involve in- a person with AIDS, by 1990, 75% said physicians vasive procedures] should be viewed as a quid pro should not refuse care to such a patient. However, worry quo for the good faith fulfillment of his or her spe- over HIV transmission in both directions-from patient to caregiver and vice versa-translates into very strong cial professional and ethical obligations."" public support for testing and disclosure on both sides. Looking back on this paper three years after Nearly all Americans (97%) say persons who are HIV he wrote it, Gostin said he was naive to think he positive should be required to tell that information to had been asked to enter a debate about patients' their health providers, but nine in 10 favor testing all rights (to defend those rights). The debate, he dis- physicians, nurses, and other health workers for HIV covered, "was not about patients' rights at all, but and requiring these groups to reveal their HIV status to patients. about restricting the employment rights of HIVIn the event that a health care worker tests positive infected health care professional^."^^ When he for HIV, 49% of Americans think the worker should be reexamined those rights, he posed and answered forbidden to practice. T h e public is even more confive questions (which we address in this article), cerned about those who perform invasive procedures. and concluded that the Centers for Disease Con- Sixty-three percent would forbid surgeons; 60%, dentists; and 51%, all physicians from continuing to practice trol (CDC) "needs to draw a rational line [between if infected. Nearly two thirds say they would discontinue the extremes of 'testing and restriction on a wide treatment with a health provider who was HIV inrange of health care professionals' and 'no limits'] fected.I4 before an irrational line is imposed by the courts and/cr public opinion."'* He recommends a "professional rule" with components of voluntary, I. HIV Infected Physicians: Scope of Practice confidential reporting by HCWs to employers of their HIV positivity; monitoring; refraining from Concern over this issue was rekindled by the "engaging in seriously invasive procedures"; and July 2, 1990, announcement by the CDC of the development of "policies and resources for retrain- first known case of HIV transmission from a ing, support, counseling, and compensation" for health care provider to a patient. This was the case of Kimberly Bergalis, a young Florida woman who HIV-positive HCWs. F e l d b l u m , l ~ l t h o u g h commending Gostin was allegedly infected with the HIV virus by her (who is Executive Director of the American Society dentist, Dr. David Acer.15."jThe CDC, which has of Law and Medicine) for presenting a "useful been promulgating guidelines on HIV infection in framework," disagrees with the suggestion that the health care setting since 1983, held numerous HCWs should practice "voluntary self-deferral . . . hearings in response to the incident and the growfrom a limited set of invasive procedures." Feld- ing concern over AIDS and, on July 15, 1991, isblum expresses the concern that, in practice, such sued guidelines." While emphasizing adherence to universal an approach will lead "inexorably" to demands for compulsory testing. (This argument esscapes us; precautions, the 719 1 CDC guidelines recommend maybe our readers can help us see it. We mention that HCWs (including physicians) who perform init here to show that, even among writers who op- vasive, exposure-prone procedures know their pose mandatory screening, there is still disagree- HIV status. HIV-positive HCWs who perform invasive, exposure-prone procedures are required to ment on other aspects of the problem.) Beyond the journals, beyond the views, ra- seek counsel from an expert review panel before tional or irrational, that have been held at least continuing to perform these procedures. Additionlong enough to be printed, is vox populi, the view ally, the guidelines provide that patients about to held at least long enough to be voiced in response undergo exposure-prone procedures be notified
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of the HCW's HIV-positive status. The guidelines leave it up to individual hospitals to determine which procedures are invasive and exposureprone. In the months following July of 1991, the CDC tried to prevail upon the medical specialty associations to come up with lists of invasive, exposure-prone procedures in each medical specialty. From July to December of 1991, the specialty societies debated the issue. At an American Medical Association meeting in August of 1991, medical, nursing and other health care groups decided that they would not develop lists of exposureprone procedures. This refusal was premised on the perceived lack of medical evidence demonstrating that there was other than an infinitesimal risk of transmissions in the health care setting and the belief that lists of procedures would only increase the already growing public hysteria. Finally, in December of 1991, the CDC, faced with overwhelming pressure from medical groups, abandoned its plans to create a detailed list of invasive, exposure-prone medical procedures. It is now in the process of developing new guidelines. The New York State Department of Health (NYSDOH) opposed the 711219 1 CDC guidelines from the outset. On 1018191 the NYSDOH issued its own guidelines, stating: HIV infection alone does not justify limiting a health care worker's professional duties. There is no need to alter the professional practice of an HIV infected health care worker unless hisfher health status and functional ability interfere with job performance. This should be determined by a case-by-case e v a l ~ a t i o n . ' ~
The guidelines establish a state-appointed review panel to conduct voluntary evaluations of HIV-infected HCWs who perform invasive procedures that might increase the risk of worker-topatient blood exposure or for those with functional impairments that could impact on their ability to provide care. A panel of experts (including the HCW's private physician) will determine whether the HCW poses a significant risk to patients which warrants job modifications, limitations, or restrictions. The determination is to be based on several factors, including: 1. Stage of the HCW's illness and its effects on ability to provide care; 2. Susceptibility of the HCW to opportunistic infections; 3. Presence of lesions on the skin of the HCW; 4. Functional ability of the HCW to perform assigned tasks or regular duties; 5. The HCW's compliance with infection control;
6. Nature of invasive procedures performed and techniques used by the HCW.18 In November of 1991 the NYSDOH held public hearings and entertained comment on its 10191 guidelines. Final regulations, which physicians practicing in New York will be required to follow, are expected in the next few months. Also in November of 1991, President Bush signed a federal law requiring each state to adopt either the CDC's or similar guidelines. Accordingly, we expect that the NYSDOH will consider the new (not yet promulgated) CDC guidelines before making its own regulations final. An HIV-positive physician was forced to resign from a hospital in New York State because of his HIV status. The hospital took the position that the doctor's resignation was necessary to achieve compliance with the 7/91 CDC guidelines. The hospital took this action prior to 10191, when the NYSDOH issued its guidelines. According to NYSDOH officials with whom one of us (LCL) discussed the case in September of 199 1, the hospital overreacted to the situation and should not have asked the doctor, an emergency-room physician, to resign. Another physician limited because of his HIV positivity was William Behringer, a New Jersey surgeon whose privileges were restricted by the Medical Center at Princeton. The determination of the Medical Center was upheld in court. Estate of William Behringer, M.D. v. The Medical Center at Frinceton, et al., 249 N.J.Super. 597, 592 A.2d- 1251 (N.J.Super.Ct. 1991). Fortunately, there is little support from the public in the United StatesJ4for the notion that HIV-infected physicians should be confined in sanatoria, like the physicians who spent their lives in leper colonies, although Cuba, which claims a very low rate of HIV infection, has tried that approachlg and we know at least one United States physician who has similarly, although less formally, been compelled to restrict his practice to the care of AIDS patients.
11. Obligation of HIV-Infected Physicians to Inform Patients of their HIV Status On 711819 1, the United States Senate adopted a bill proposed by Senator Jesse Helms-R, N.C., mandating prison terms of at least 10 years and fines of up to $10,000 for HCWs who knew they had AIDS but failed to inform patients on whom they performed invasive procedures. The vote was 8 1 to 18. Hearings were held in September of 1991 and vote by the House of Representatives is pending. Senator Helms' argument in favor of his billz0 79
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Requiring health care workers to inform patients or employers that they are HIV positive will only serve as a deterrent to workers seeking voluntary testing and medical evaluation. It would also endanger the professional careers of competent and needed health care personnel who pose no risk to patients.
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These guidelines are consistent with Section 2782 bf the Public Health Law which affords confideniiality to HIV status. At a January 29, 1992, conference concerning the legal issues of HIVIAIDS and the HCW, sponsored by the New York State Bar Association Special Committee on AIDS and the Law, Dr. David E. Rogers, Vice Chairman of the National Commission on AIDS, supported the NYSDOH guidelines and expressed the opinion that informed consent has never required doctors to disclose every conceivable risk to patients4nly those that are material or reasonably foreseeable. The remote risk of HIV transmission from doctor to patient need not be disclosed as part of the informed consent process. Whether patients should be informed of a physician's HIV-positive status after treatment has been rendered is another question under consideration. Recently, doctors from the Minnesota Department of Health recommended that people who were treated by AIDS-infected doctors not be routinely contacted and tested for the AIDS virus unless there is a clear risk that the infection was transmitted or the doctor violated standards of infection control practices. The reason: several "lookback investigations conducted of patients
treated by HIV-infected physicians revealed no infected patients."
111. HIV Testing
The hospital environment poses obvious risks for the transmission of HIV infection.23Although medical evidence suggests that the risk of transmission in the hospital setting is small, HCWs are concerned about potential exposure to infection through accidental needlesticks or punctures, or through exposure to infected blood or body fluids via unprotected mucous membranes or nonintact skin. Patients, on the other hand, are concerned that treatment by infected HCWs may pose a risk. (Eighty-eight author-investigators recently reported that, of 336 patients who underwent digital examination of a body cavity or vaginal delivery performed by an HIV-infected physician while he was suffering from severe mycobacterial dermatitis of hands and forearms, none was shown to become HIV positive; 97% permitted testing and were found to be HIV negati~e.'~) A. Debate on Prevention Programs: Testing us Universal Precautions The debate on prevention programs in health care facilities has focused on two approaches to reducing the risk of infection: (1) implementation of universal precautions throughout a facility; (2) screening of hospital patients and staff to determine their HIV antibody status. 1 . Proponents of Universal Precautions The CDC, the American Hospital Association (AHA), and the NYSDOH have endorsed the use of universal blood and body fluid precautions (known as "universal precautions") as the most effective means of preventing transmission of HIV infection in health care settings. T h e use of universal precautions was recently given the force of law in the 12191 OSHA Final Rule.24 Proponents of universal precautions believe that treating all blood and bodily fluids as infected and consistently, and without exception, employing barrier protections (gloves, mask, etc.) can effectively protect individuals. Because infected patients and HCWs cannot be reliably identified by screening tests, precautions must be used by all HCWs for all patients in both institutional and noninstitutional settings, including emergency departments, outpatient clinics, ambulatory care settings, and physicians' and dentists' offices. In short, they must function as though everyone is infected. 2. Advocates of Screening a. Screening Patients: Some advocates of screening have called for routine screening of all hospital patients or "high risk individuals" or of pa-
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and a rebuttal" contending that infection control, not punitive measures, will prevent transmission of infection have recently been presented to the legal profession. The CDC, the American Medical Association, the State of New Jersey, and the State of Illinois also favor patient notification. New Jersey's position is put forth in the Behringer case already mentioned. In Behringer, the New Jersey Superior Court upheld the decision of the Princeton Medical Center to restrict the AIDS-infected surgeon's privileges because he refused to inform patients of his HIV status. In late 199 1 Illinois enacted legislation requiring the Illinois Department of Public Health to determine whether the patients of doctors or dentists diagnosed as having HIV or AIDS may have been at risk of contracting HIV from the infected practitioner and to ensure notification (by either the practitioner or the Department) of those patients determined to have been at risk. New York State takes a different position. T h e 1018191 guidelines of the NYSDOH state:
VOLUME 12, NUMBER 1 MARCH 1992
tients scheduled for major surgery. In its 1/91 guidelines, the AMA recommended voluntary testing, with informed consent, of patients admitted for surgery or other invasive procedures. In May of 1991, the Medical Society of New Jersey called for mandatory testing of all hospital patients. In New York, there is no official support for mandatory testing of patients. In May of 1991, the New York State Court of Appeals issued a decision that rejected a plea from the New York State Medical Society for mandatory testing of patients for AIDS. New York Society of Surgeons v. Axelrod, 77 N.Y. 2d 677, 569 N.Y.S. 2d 922 (1991). Additionally, the 1018191 NYSDOH guidelines oppose mandatory testing of patients.18 b. Screening of Health Care Workers: Screening of HCWs has also been proposed as a means of tracking HIV infection rates and alerting hospital administrators to the presence of infected employees, especially those directly involved in patient care o r contact. However, it should be noted that both the CDC" and the NYSDOH18 recently rejected mandatory testing of all HCWs. The NYSDOH recommends, instead, voluntary testing for HCWs who share risk factors with the general population andlor who perform invasive procedures. The CDC recommended voluntary testing for HCWs who perform exposure-prone, invasive procedures. A recent statement from the Royal College of Surgeons included the information that, in the United Kingdom, no case of HIV transmission from surgeon to patient has been reported. The risk of this happening was judged to be extremely small, and regular screening of surgeons was not re~ornmended.~~ At the January 29, 1992, conference on AIDS and the Health Care Worker, mentioned earlier, one speaker observed that a far greater risk is posed by physicians who are incompetent or who abuse drugs than by those who are HIV-positive, and recommended that hospitalts test not the blood but rather the hands and minds of their staff physicians.
CONCLUSION In their zeal to protect patients and coworkers from transmission of HIV/AIDS in health care settings by mandating HIV testing, imposing restrictions on HIV-positive practitioners, or requiring disclosure of HIV status, health care providers must be mindful of protection afforded to practitioners by antidiscrimination laws and laws that render HIV status confidential: The Federal Rehabilitation Act of 1973, Section 504; The Americans with Disabilities Act; and the New York State
Human Rights Law all prohibit discrimination based on handicapldisability. Under all three provisions, HIV-positive status is considered a handicapldisability. Public Health Law Section 2782 provides a heavy cloak of confidentiality to HIV status. We have concentrated on some of the differences between attitudes toward childbed fever "then" and AIDS "now." Beyond them lie similarities. Notably, the early perception of puerperal fever as a "women's disease," at a time when women's lives were devalued in many ways, led to insufficient attention to the problem. Attitudes changed when it became clear that the fever was an infectious condition and that, therefore, both men and women were vulnerable. A similar shift in thinking is beginning to emerge with regard to AIDS, but, as we know from the latest surveys, we cannot be euphoric about it: Despite indicators that Americans are becoming less likely to express hostility toward people with AIDS, it is clear that persons with this disease will continue to confront the problem of prejudice, especially if they are in a risk group that is identifiable and unacceptable to substantial numbers of Americans.14 As was true with childbed fever, AIDS is really everybody's problem, and that realization eventually may substitute reasonable caution for xenophobic overreaction and good sense for hysteria. We hope so.
REFERENCES 1. Semmelweis 1. T h e etiology, concept, and prophylaxis of childbed fever. Translated and Edited, with an Introduction, by K. Codell Carter. Madison, W1:University of Wisconsin Press, 1983 2. Breo DL. Blood, money, and hemophiliacs-the fatal story of France's 'AIDSgate.'JAMA 1991;266:3477-82 3. Antall J, Szebelledy G. Pictures from the history of medicine. The Semmelweis Medical Historical Museum, Budapest. Budapest:Corvina Press, 1973 4. Olmsted J . Charles-~douard Brown-Sequard-a nineteenth-century neurologist and endocrinologist. Baltimore:Johns Hopkins Press, 1946 5. Slaughter FG. Immortal Magyar. Semmelweis, conqueror of childbed fever. New York:Henry Schuman, 1950: 105-6 6. Adami J.G. Charles White of Manchester (1728-1813), and the arrest of puerperal fever. Liverpool:Paul B. Hoeber, 1923 7. Wong D. Nyek K, Hollis P. Microbial flora on doctors' white coats. BMJ 1991;303: 1602-4 8. Closen ML. When a doctor has AIDS. National Law Journal, Monday, Sept. 9, 1991: 15-6 9. Keyes GG. Health-care professionals with AIDS: the risk of transmission balanced against the interests of professions and institutions. J College Univ Law 1990; 16:589-619 10. Barnes M, Rango NA, Burke GR, Chiarello L. The HIVinfected health care professional: employment policies arid public health. Law Med Health Care 1990;18:31130
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11. Gostin L. HIV-infected physicians and the practice of seriously invasive procedures. Hastings Cent Rep 1989; 19:32-9 12. Gostin L. T h e HIV-infected health care professional: public policy, discrimination, and patient safety. Law Med Health Care 1990; 18:303-10 13. Feldblum CR. A response to Gostin, "The HIV-infected health care professional: public policy, discrimination, and patient safety." Law Med Health Care 1991; 19: 134-9 14. Blendon RJ, Donelan K, Knox RA. Public opinion and AIDS-lessons for the second decade. JAMA 1992; 267:981-6 15. Centers for Disease Control. Possible transmission of huvirus to a patient during an inman ir~~rnunodel'ic~iency vasive derltal vrocedure. MMM'R 1990:39:189-93 16. Centers for ~ i i e a s eControl. Update: transmission of HIV infection during an invasive dental procedureFlorida. MMWR 1991;40:2 1-7,33 17. Centers for Disease Control. Recommendations for preventing transmission of human immunodeficiency virus and hepatitis B virus to patients during exposureprone invasive procedures. MMWR 1991;40, No. RR8: 1-9
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18. New York State Department of Health. Policy statement and action plan to prevent transmission of HIV through medicalldental procedures. Oct. 8, 1991 19. Kim S. AIDS in Cuba. J Univ Rochester Med Cent 1991;3(2):33-6 20. Helms Sen. J. The AIDS-infected physician. Are criminal penalties necessary to protect the public health? Yes: protect innocent victims. ABA Journal, Oct. 1991:46 21. lsbell M. The AIDS-infected physician. Are criminal penalties necessary to protect the public health? No: don't scapegoat doctors. ABA Journal, Oct. 1991:47 22. Danila RN, MacDonald KL, Rhame FS, et al. A look-back investigation of patients of an HIV-infected physician. N Engl J Med 1991;325: 1406-1 1 23. Chamberland ME, Conley LJ, Bush TJ, et al. Health care workers with AIDS-national surveillance update. JAMA 1991;266:3459-62 24. OSHA Final Rule, 29CFR Pt.1910.1030, Dec. 6, 1991. Occupational exposure to bloodborne pathogens; final rule. Federal Register 1991;56(235):64004-182 25. Walker A. Surgeons and HIV. BMJ 1991;302:136
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