October 1998 Bulletin

HIV rulings go beyond disability law

Courts view risk of harming patient, although low, outweighs the good the surgeon can do

The Academy's Advisory Statement on HIV-infected orthopaedic surgeons is in the Library section of the home page www.aaos.org

"I swear . . . I will never do harm to anyone . . . ."

Hippocratic Oath

By Alisa B. Arnoff

In 1997, it was reported that a French orthopaedic surgeon transmitted HIV to a patient. The surgeon was diagnosed as having AIDS in 1993. In 1995, some of the patients upon whom he had operated consented to a blood test, and a 1993 patient tested positive. During that procedure, the surgeon had pierced his gloves and injured his hands.

The same scenario could happen here. In fact, there is one reported lawsuit involving an HIV-infected orthopedic surgeon in Pennsylvania. There, a medical center imposed more specific informed consent standards after the surgeon voluntarily disclosed his HIV-positive status. Before exploring what happened in that case, a summary of the applicable laws is warranted.

The federal Americans with Disabilities Act (ADA), and similar state and local laws, protect certain disabled individuals against adverse action such as termination, in the areas of employment and public accommodations. To be protected, an employee must suffer a substantially limiting impairment yet be able to perform the essential functions of his current position with or without a reasonable accommodation. "Essential job functions" are those job duties without which the particular job would not exist. Of course, the ability to perform invasive surgery is an essential job function of an orthopaedic surgeon.

HIV-infected health care workers have been lawfully removed from positions because they pose a "direct threat," defined by the ADA as a "significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." However, the regulations implementing the ADA define it in more detail-"a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Considerations include the risk's duration, the nature, severity and imminence of the potential harm and the likelihood that the potential harm will occur. An individualized assessment is required, focusing on the employee's present ability to do the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.

Hence, the question: does an HIV-infected surgeon always present a direct threat to patients?

In 1991, an orthopaedic surgeon, disclosed his HIV-positive status to his superiors. His clinical privileges to perform invasive procedures were suspended, subject to reinstatement only if he agreed to submit appropriate documentation showing that he had disclosed his HIV-positive status to patients and the patients consented to the procedure with awareness of his condition. He sued the medical corporation. The court dismissed the lawsuit, finding that because there was no known cure for the virus, the risk posed to patients was of permanent duration, and its severity fatal. The case was settled before appellate proceedings ensued.

A 1995 Maryland case involved a neurosurgical resident who contracted HIV through a needle stick while treating a patient. He filed a discrimination lawsuit after being permanently suspended from surgical practice. In arguing that he was not a direct threat, the resident pointed out that the possibility of HIV transmission to a patient was so remote as to be insignificant. The court disagreed, while recognizing that to date there were no documented cases of HIV transmission from surgeon to patient. Because there was no way to eliminate the risk, the court found that the resident was properly removed from his duties.

While these cases are several years old, the issues remain today. The courts apply a more stringent requirement regarding HIV-infected surgeons with respect to the direct threat issue than provided by the ADA's regulations. Under the regulations, an individual is a direct threat if the risk "cannot be eliminated or reduced . . . . ." The courts have gone one step further: the risk must not be simply reduced, it must be eliminated. The judicial system has legislated a different standard for health care workers than for everyone else.

Should there be a double standard, or should the dice be thrown? Everyone agrees on two objective factors: (1) the risk of transmission during surgery from doctor to patient is low, (2) but transmission will most always result in catastrophe. The courts have gone beyond the exact language of the statutes they have been asked to interpret, and have entered the realm of the moral: the risk, no matter how low, of doing harm to a patient greatly outweighs the good the surgeon can do otherwise. Be prepared for medicine to err on the side of caution, despite the letter of the law.

Alisa B. Arnoff is a Chicago labor and employment attorney. She can be reached at aba@sacounsel.com.

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