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HIV testing of health care workers.

Until recently, nothing much beyond education and the dispensing of condoms was being done to control the spread of AIDS. We have not yet taken sufficient measures to prevent the spread of this disease. Instead, we insist on protecting the privacy of the HIV-positive individual. However, we ignore the right to privacy by mandating testing for syphilis, which is not nearly as serious a disease as AIDS. Now, mandatory testing of health care workers is being proposed more frequently.

On July 18, 1991, the U.S. Senate passed a bill providing for prison sentences for health care workers who perform high-risk procedures without informing patients of their positive HIV status. A second bill requires health care workers who perform risky procedures to be tested for AIDS and to stop performing these procedures if they test positive.(1-3) In the House of Representatives, William E. Dannemeyer (R-Calif.) recently proposed a bill that requires states to provide tests for HIV and hepatitis B to health care professionals. The bill would also bar infected professionals from performing invasive procedures without the patient's informed consent and would allow those who perform invasive procedures to test patients without their consent if the professionals have a reasonable basis for believing their patients may be infected with HIV.(4,5) All of this legislation involves a number of ethical and legal issues that need to be considered.

Ethics Issues in Support

* According to Ronald Bayer, MD, of the Hastings Center, four widely accepted ethical principles are commonly applied to medicine, research, and public health: respect, harm, beneficence, and justice.(6) Respect for persons requires that individuals be treated as autonomous agents who have the right to control their destinies. The harm principle permits limitations on an individual's liberty to pursue personal choices when others will be harmed by those activities. Beneficence requires that we act in the interests and welfare of others and applies to actions affecting both individuals and the community. Justice requires that the benefits and burdens of particular actions be distributed fairly. It also prohibits invidious discrimination.

According to Dr. Bayer, there is one ethically acceptable use of HIV testing--to stop the spread of AIDS. Drawing on the principle of beneficence, we have a duty to try to protect people who are or might be infected. The principles of respect and beneficence require that we inform people before they are tested and tell them the results, with adequate medical and psychological counseling. The principle of justice requires that we distribute broadly the cost of providing medical care and that we neither shift to hospitals the burden of uncompensated care nor reduce people to a dependency on the welfare system.

Supporters of universal HIV testing claim it has merit because it helps identify individuals infected with the AIDS virus, allowing early medical intervention and preventing the spread of the virus by giving patients and medical personnel the opportunity to take extra precautions.(7)

The New England Journal of Medicine stated that, because medical ethics have traditionally emphasized the welfare of the patient, health care professionals may, as an ethical matter, be committed to self-testing at levels of risk lower than those that might trigger broad testing of others.(8) It goes on to say that the longer we avoid making rational plans for preventing transmission of AIDS, and deal with costs only after accidents happen, the more likely it is that inexpert and reluctant courts will be forced to provide solutions.

In 1989, Stephen Joseph, then Commissioner of Health in New York City, stated that the prospects of early clinical intervention warranted a shift toward a disease-control approach to HIV infection along the lines of classic tuberculosis practices, including the reporting of seropositives.(9)

Ethics Issues in Opposition

There may he a backlash by health care workers against HIV-infected patients or patients suspected of being HIV positive. For example, Mervyn Silverman, MD, President of the American Foundation for AIDS Research, says if he has to be tested and tell patients if he is positive, he will stop treating patients who are or are suspected of being infected.(10)

Health care workers could lose their means of livelihood if they reveal their HIV status to patients. When people were asked in a Newsweek poll what they would do if their health care workers were HIV positive, 15 percent would continue treatment but the health care worker would have to use stringent protective measures, 13 percent would continue treatment but would exclude surgery and other invasive procedures, and 65 percent would discontinue all treatment with that person.(11)

This legislation could lead to disclosure about epilepsy, status of recovering from alcohol or drug abuse, and other medical problems that could influence performance.

Mandatory testing of health care workers may waste limited resources because the testing is not always reliable. According to some AIDS experts, testing is impractical and ineffective because the period between the time of infection and the time antibodies show up on the test may be six months.(11) If a surgeon is cut while operating on an infected patient, would he or she have to stop practicing until a test six months later?

Mandatory testing may result in discrimination against minorities and homesexuals.(12)

There should not be a double standard; health care workers should enjoy the same rights as others.(13)

Individuals who test positive for the AIDS virus might become subject to discrimination by employers and insurers.

Because the antibodies against AIDS may not show up in a test for six months, people may develop a false sense of security.

Legal Issues in Support

Health care providers are being held liable for transmitting the AIDS virus to patients in the course of treatment. A California Superior Court judge ruled that a gynecologist could be sued because neither he nor the clinic where he worked notified his patients that he was HIV positive.(14)

On August 25, 1990, the Fifth U.S. Circuit Court of Appeals in New Orleans affirmed a lower court ruling that 245-bed Terrebonne General Medical Center in Houms, La., did not discriminate against one of its employees when it fired him for refusing to reveal the results of his HIV test to the hospital.(15)

In Leckett v. Board of Commissioners of Hospital District 1, the court allowed the testing of health care workers, reasoning that the welfare of patients outweighed the right of workers to privacy.(8)

Some states, such as Florida and Idaho, have introduced a new form of willfully and knowingly exposing another person to the AIDS virus.(16)

New York has already issued enforceable rules for HIV-positive workers,(11) and North Carolina has proposed control measures for AIDS under its communicable disease law.(6) Governor Lawton Chiles of Florida plans to introduce legislation that would require health care providers who are HIV positive to notify their professional practice boards.(17)

Legislatures in more than 30 states are considering premarital HIV testing,(12) and a number of bills has been introduced in state legislatures to control the right of HIV-infected persons to marry.(16)

Relying on a recent Supreme Court decision allowing drug testing of public employees, a California court has found that forced testing on the grounds of public health does not violate the Fourth Amendment's prohibition against unreasonable searches.(8)

In 1989, the Medical Society of New York sued to have the state health commissioner declare AIDS a communicable disease. The New York Court of Appeals, the state's highest court, dismissed this suit recently, saying sole authority to make that designation lies with the commissioner.(18)

In Oregon, HIV-positive doctors are required to report this condition to the state health division. A group of peers evaluates the risks and makes recommendations.(19)

From 1987 through 1989, 20 states enacted statutes permitting the prosecution of persons whose behavior poses a risk of HIV transmission.(9)

Legal Issues in Support

The U.S. Constitution and the constitutions of some states recognize the right-to-privacy. Some states have extended this to include the results of HIV testing.(8) California's right-to-privacy law prevents hospitals from disclosing whether health care workers carry the AIDS virus.(20)

A Baltimore judge ruled recently that two patients who unknowingly were treated by a physician with AIDS cannot sue the physician's estate or the hospital in which they were treated. In his decision, the judge said the injury claimed by the plaintiffs was the fear that something could have happened (but it did not), and the court could not allow recovery for that fear.(21)

Other Ramifications

According to a survey conducted by Newsweek, 97 percent of those polled felt patients should be required to tell health care workers if they are infected with the AIDS virus, while 2 percent were opposed.(11)

According to the Centers for Disease Control, there have been 6,436 reported cases of health care workers with AIDS, including 713 nonsurgical doctors, 47 surgeons, 171 dental workers, and 1,385 nurses. These figures represent only full blown cases and do not include HIV-positive workers.(11)

A 1991 Gallup Poll in which adults were asked which health care workers should be required to tell patients if they are infected with the AIDS virus produced the following responses: surgeons (95 percent), all physicians (94 percent), dentists (94 percent), and all health care workers (90 percent).(11)

The American Medical Association and the American Dental Association recommended that HIV-positive physicians and dentists refrain from performing invasive procedures or disclose their condition and obtain informed consent from their patients.(22,23)

The American Medical Association rejects mandatory AIDS testing, claiming it is neither necessary nor feasible, but it urged doctors to voluntarily take the test to ease the fears of patients.(24)

The American Nurses' Association overwhelmingly adopted a resolution opposing mandatory AIDS testing because of its unreliability during the incubation period and because of the estimated $1 billion cost of the testing.(25)

The AMA endorsed the routine reporting of people who test positive for the AIDS virus to state health authorities, but it stopped short of endorsing routine HIV testing of patients without their consent.(26)

Ten years ago, more than 100,000 Americans infected with HIV were alive. Today, more than 100,000 have died from AIDS and more than 1,000,000 are infected with the AIDS virus.(27)

Former Surgeon General, C. Everett Koop, MD, recently told a House subcommittee that the crush of AIDS patients at hospitals in New York City was endangering the city's health system, driving away many bright young doctors, and overburdening emergency departments.(28)

In February 1990, the Hospital Association of New York projected that New York State would need an additional 7,000 nurses to care for AIDS patients in the next four years.(29)

In September 1990, HHS Secretary Louis Sullivan, MD, reported that AIDS was the 11th leading cause of death for all Americans in 1989, as the number of AIDS-related deaths rose 32 percent to 21,000. In 1988, AIDS was the 15th leading cause of death, killing 16,000.(30)

It has been reported that people with AIDS are increasingly forced to depend on medical assistance to obtain health services, which discourages physicians from treating them and places a greater burden on already strained hospitals.(31)

About 80,000 women of child-bearing age are positive for the AIDS virus.(32)

According to a researcher with HHS, the annual cost of treating AIDS in the United States is $5.8 billion, almost one percent of the GNP. By 1994, the cost of treating people infected with the AIDS virus will reach $10.4 billion a year.(33)

Medical care for those suffering from AIDS is very expensive. The latest figures available show lifetime care per AIDS patient averaged $50,000 to $60,000.(12)


It is conventional jurisprudence that a legal right available to one person depends on a legal duty that binds others. Competing interests may each claim a different right and the other's correlative duty. It is evident that the law and courts are moving away from protecting the privacy of health care workers and toward holding hospitals and health care workers responsible for the transmission of the AIDS virus to patients. There is no question that mandatory HIV testing does invade the individual's privacy, but is that too big a price to pay when we consider the nature of AIDS? Testing should include both patients and health care workers. Besides, we are already being tested for syphilis by law, and AIDS is much worse.

AIDS is a fatal disease that could greatly reduce the population of the entire world. Granted, mandatory testing of health care workers will not stop the spread of AIDS. However, as health care providers, we have a moral obligation to try to control this disease. By setting an example, health care workers can start the movement that will cause everyone to acknowledge AIDS as the public health problem it has become and, thereby, lead to universal testing and early intervention in dealing with this infection.

We have been concerned with confidentiality and not with reality. We don't need the protection of confidentiality as much as we need to protect the rights of the infected person. Legislation guaranteeing these rights should protect infected patients from discrimination and lead to measures controlling the spread of AIDS. We must not settle for the testing of only health care workers; we must strive for universal testing accompanied by any other ethically, legally, and socially acceptable methods that will help control this disease.


(1.) "Bill Targets AIDS Doctors." Reading Times, July 19, 1991, pp. 1,7.

(2.) "Senate Approves Prison Fines for AIDS-Infected Doctors, Health Workers." Intelligencer Journal, July 19, 1991, p.A-3.

(3.) Taravella, S., and Wagner, L. "CDC Issues Voluntary HIV-Testing Guidelines." Modern Healthcare 21(29):2, July 22, 1991.

(4.) "Medicine Needs Own AIDS Plan." Reading Times, July 16, 1991, p. 4.

(5.) "News at Deadline." Hospitals (14):12, July 20, 1991.

(6.) Jones, D. "Perspective on AIDS." Vital Speeches 54(6):120-34, Jan. 1, 1988.

(7.) "Universal AIDS Testing --A Fierce Debate." Osteopathic Medical News 8(6):5, June 1991.

(8.) "Transmission of the Human Immunodeficiency Virus in the Health Care Setting--Time for Action." New England Journal of Medicine 324(21):1504-9, May 23, 1991.

(9.) "Public Health Policy and the AIDS Epidemic." New England Journal of Medicine 324(21):1500-4, May 23, 1991.

(10.) "Beware Blanket AIDS Solution." Medical Tribune 32(12):14, June 13, 1991.

(11.) "Doctors and AIDS." Newsweek, July 1, 1991, pp. 48-57.

(12.) Fineberg, H. "The Social Dimension of AIDS." Scientific American 259(4):128-34, Oct. 1988.

(13.) Reamer, F. "AIDS and Ethics: The Agenda for Social Workers." Social Work 33(5):460-3, Sept.-Oct. 1988.

(14.) Sussman, D. "Judge OKs Suit attacking Doctors' Privacy Right." Health Week 4(12):6,67, June 11, 1990.

(15.) Burda, D. "Appeals Court Upholds Hospital's Right to Require Employee AIDS Testing." Modern Healthcare 20(35):4, Sept. 3, 1990.

(16.) Dickens, B. "Legal Rights and Duties in the AIDS Epidemic." Science 239(4840):580-5, Feb. 5, 1988.

(17.) "A Second South Florida Dentist Tells Patients He Has AIDS." New York Times, April 18, 1991, p.A23.

(18.) Pasternack, A. "New York Docs Seek New Discretion to Give AIDS Test." Health Week 5(10):10, May 20, 1991.

(19.) "Debate Heats Up; Must Physicians and Patients Disclose HIV Status?" Physicians Financial News 9(11):3,12, June 15, 1991.

(20.) "AIDS Deaths of California Doctors Set Off Disclosure Rights Furor." New Era, June 29, 1991, pp. A-1,A-3.

(21.) "Currents." Hospitals 64(14):18, July 20, 1991.

(22.) "Ethical Issues Involved in the Growing AIDS Crisis." JAMA 259(9):1360-1, March 4, 1988.

(23.) "For the Record." Modern Healthcare 21(3):16, Jan. 21, 1991.

(24.) "AMA Rejects Mandatory AIDS Test." New Era, June 27, 1991, pp. A-1,A-5.

(25.) "Mandatory AIDS Test Opposed." Reading Times, July 1, 1991, p. 4.

(26.) Perry, L. "AMA Endorses AIDS Test Reporting." Modern Healthcare 20(49):8, Dec. 10, 1990.

(27.) "Better Policy on AIDS Advised." Medical Tribune 32(13):11, June 27, 1991.

(28.) "AIDS Periling N.Y. Health System: Koop." Physicians Financial News 8(10):3, April 15, 1990.

(29.) "News at Deadline." Hospitals 64(4):16, Feb. 20, 1990.

(30.) "Infant Mortality Declines, but AIDS Deaths Increase." Modern Healthcare 20(36):17,22, Sept. 10, 1990.

(31.) Tarravella, S. "AIDS Patients' Dependence on Medicaid Grows--Study." Modern Healthcare 20(38):33, Sept. 24, 1990.

(32.) "HIV Rises in Potential Mothers." Medical Tribune 32(8):16, April 18, 1991.

(33.) "Care Cost May Nearly Double by 1994." Boston Globe, June 20, 1991, p. 12.
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Author:Bove, Victor M.
Publication:Physician Executive
Date:May 1, 1992
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