A Response to Gostin,“The HIV-Infected Health Care Professional: Public Policy,Discrimination,and Patient Safety”

See, e.g., Association for Practitioners for Infection Control, Position Paper: “The HIV-Infected Health Care Worker,” APIC 1990, 18:371–381 and testimony, Feb. 21, 1991, Atlanta, GA; American Medical Association testimony, Feb. 21, 1991, Atlanta, GA.

Testimony of Larry Gostin, Feb. 22, 1991, Atlanta, Georgia; Gostin , “The HIV-Infected Health Care Professional: Public Policy, Discrimination, and Patient Safety,” 18 Law, Medicine and Health Care 4 (Spring 1991) 303–310.

See Gostin , supra n. 2. Many of Gostin's arguments were also developed in a previous article, Gostin L. , “HIV-Infected Physicians and the Practice of Seriously Invasive Procedures,” 19 (1) Hastings Center Report 32–39 (1989).

Gostin , supra n.2, at 304.

Gostin , supra, n.2, at 304.

See, e.g, Canterbury v. Spence, 464 F.2d 772 (D.D.C. 1972); Wilkenson v. Vesey, 110 R.I. 606, 624, 295 A.2d 676 (R.I. 1972); see also Feldblum, “Informed Consent: Issues for Individuals with HIV Disease,” unpublished paper, January 1990.

For example, the informed consent doctrine was used in an 1851 case to require that a physician disclose to his patients that the physician was attending another patient with smallpox. Piper v. Menifee, Ben Monroe Reports, Winter Term 465 (Winter Term 1851). See Gostin, supra note 3, at 34 and nn. 32–33. The informed consent doctrine has not, however, traditionally been used as a rationale for forced confession by providers of risks associated with such factors as casual alcohol use, stress, or sleep-deprivation. As one court has appropriately explained: “[T]here must be a reasonable accommodation between the patient's right to know, fairness to physicians, and society's interest that medicine be practiced…without unnecessary and unrealistic burdens on practitioners.” Precourt v. Frederick, 677 F.Supp. 1259 (D.Mass. 1985).

If the risk is the result of a disablitiy, the provider's employer, place of practice, or licensing department must first determine if a reasonable accommodation exists that would eliminate or reduce the risk to a non-significant level. If no such accommodation is available, or if it would impose an undue hardship to institute such an accommodation, the provider would not be considered “qualified” to practice. See, e.g., School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

See also Gostin, supra, n. 3 at 34 (discussion on limits of informed consent requirements).

Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 Morbidity & Mortality Weekly Rep. (Supp.2S 1987).

See Leckelt v. Board of Commissioners of Hospital District No.1, 714 F.Supp. 1377 (E.D.La. 1989), aff'd 909 F.2d 820 (5th Cir. 1990)(upholding hospital's demand that a nurse suspected of being HIV-positive disclose the results of an HIV antibody test). Gostin makes this same point. See Gostin, supra note 2, at 305.

Gostin , supra note 2, at 305.

Gostin , supra note 2, at 306.

Gostin , supra note 2, at 306.

The CDC's studies, done more recently, suffer from the same flaw. See Feldblum, testimony presenmted on behalf of the American Civil Liberties Union, Feb. 21, 1991, Atlanta, GA, noting that, as a legal matter, such infection control practices must be in place before a risk of transmission may be quantified that would justify exclusion of health care workers with disabilities.

Gostin , supra note 2, at 306. Gostin cites his 1989 Hastings Center Report article, supra note 3, as support for this statement.

See, e.g., Finklestein R. , testimony delivered on behalf of AIDS Action Council, Atlanta, GA, Feb. 21, 1991; memorandum from Barnes M. Tynan E. to Rogers David E. M.D., N.Y. State Department of Health, “Comments on the CDC Draft paper,” March 18, 1991.

Gostin , supra note 2, at 306.

Brennan T.A. Leape L.L. Laird N.M. , “Incidence of Adverse Events and Negligence in Hospitalized Patients—Results of the Harvard Medical Practice Study I,” 324 New England Journal of Medicine 370–376 (1991).

Gostin , supra note 2, at 306.

Gostin , supra note 2, at 306. For example, Gostin notes, “few health care facilities or licensing authorities require blood alcohol or drug tests or systematically monitor the professional for physical or mental impairments or dangerous infectious conditions.” Id. at 306.

g. facilities would have to decide whether to disclose information to patients or third parties under a duty to warn theory.

Gostin , supra note 2, at 307.

Under this approach, the CDC would presumably note that it is continuing to engage in activities to ascertain an accurate quantification of the risks of HIV transmission.

ADA, S302 (b) (2) (A); 42 U.S.C. S12182 (b)(2) (A).

Indeed, such a policy might result in the worst form of mandatory testing: facilities might require that only those professionals that it “suspects” of being at risk of HIV-infection (perhaps those providers who are gay or who are suspected of being gay) show proof of HIV-negative status.

480 U.S. 273 (1987). See also Feldblum, ACLU testimony, Feb. 21, 1991, Atlanta, GA.

Gostin , supra note 2, at 308.

Gostin , supra note 2, at 308.

See, e.g., Report of the House Education and Labor Committee, 101st Congress, 2nd Sess., H. Rpt. 101–485, Part 2, at 73–74.

56 Fed. Reg. 35745 (July 26, 1991) (person must pose “high probability of substantial harm”).