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AIDS, HIV infection and health care professionals
SEFTEMBER 1991, VOL 54, NO 3
AORN JOURNAL
OR Nursing Law AIDS, HIV infection and health care professionals
T
his year marks the 10th anniversary of the acquired immune deficiency syndrome (AIDS) epidemic in the United States. Initially classified as a homosexual disease, AIDS not only carried the horror of certain death, but the stigma of a sexually transmitted disease and homosexuality. Members of the gay community rallied to protect themselves from discrimination and loss of employment, housing, and medical insurance. Their political lobbying and articulation of civil rights issues were successful in having AIDS and human immunodeficiency virus (HIV) infection treated as no other contagious or sexually transmitted disease had been treated in the past: confidentiality of those who have the disease, no screening for HIV on a large scale basis, and no efforts to trace sexual partners. Today AIDS is a disease of heterosexual and homosexual men, women, and children. More than 100,000 Americans have died from AIDS in the past decade. An estimated one million people currently are infected with the virus, and more than 125,000 of those are thought to have clinical AIDS.'
the Centers for Disease Control (CDC), Atlanta, to introduce universal precautions for all patients. Health care professionals were taught proper needle disposal and to use gloves and goggles whenever there was a chance of coming in contact with any patient's blood or body secretions. In emergency rooms and operating rooms, where large blood spillage could be expected, gloves, gowns, goggles, and masks were to be worn. This alleviated some but not all of the fear of caring for AIDS patients. In July 1990, the CDC reported the first transmission of HIV from an HTV-infected dentist to a patient.* The patient possibly contracted the disease during the removal of impacted third molars. The CDC announced in January 1991 that two more patients of the same Florida dentist had contracted the disease. The strain of the AIDS virus that infected the three patients was the same that infected the dentist. There is evidence that the dentist and his staff were inconsistent in compliance with infection control techniques (ie, reusing disposable items, washing and reusing latex gloves).' This reve-
AIDS Among Health Cure Professionals
Margaret Morthorst, RN, JD, CNOR, is assistant clinical manager, operating room, at Fox Chase Cancer Center, Philadelphia. She received her nursing diploma from Thomas Jefferson University, and her bachelor of science degree in nursing f r o m LaSalle University, both in Philadelphia. She earned her doctor of law degree at Temple University School of Law,Philadelphia.
I
nitially, health care workers only worried about AIDS as an occupationally transmitted disease. The fear of contracting AIDS from infected patients was so high and the concern that infected patients may receive inadequate care or be barred from medical care prompted
591
AORN JOURNAL
SEF’TEMBER I99 I , VOL 54, NO 3
If a hospital provides workers’ compensation for occupational illness, employees are precluded from suing the hospital in a tortious action. lation caused panic among the public who demanded wide-scale screening of all health care professionals for HIV seropositivity. In the past 10 years, 5,800 cases of AIDS have occurred among health care workers in the United States, and presumably many times that number are infected with HIV (clinical AIDS must be reported to the CDC but HIV seropositivity is not reportable). Of those 5,800 cases, however, only 37 acquired HIV during the course of their health occupational duties. There are only three known cases of transmission from a health care worker to a ~ a t i e n t . ~
Legal Implications for Health Care Workers
H
ealth care workers now are questioning how the AIDS epidemic will affect their professional duties and activities. What are the legal implications for health care professionals? Can you sue the hospital i f you HZV seroconvert during employment? Proof of causation is the difficulty in suing in this area. Health care professionals must prove that their seropositivity was directly caused by a needlestick or puncture with a device used on an HIVinfected patient. They must prove that they and any sexual partners do not fall into the other high risk groups (eg, homosexuality, IV drug abuse, liaisons with prostitutes, multiple blood transfusions). This may be difficult to prove. If a hospital provides workers’ compensation for occupational illness, employees are precluded by law from suing the hospital in a tortious action. The leading case in this area is Prego vs City oflvew York (141 Misc 2d 709 [NY Supp 19881 affd 147 AD2d 165 [NYAD 2d Dept 19891). The plaintiff, an extern at the defendant Kings County Hospital, assisted a hospital intern during the months of November 1982 through 598
January 1983 in drawing blood from an AIDSinfected patient. The intern left one of the needles used in drawing the blood on the patient’s bed mixed among “gauze, wrappers, and other refuse” (Id at 166). He instructed the plaintiff to “clean up the mess” (Id) and, in doing so, she was stuck by the contaminated needle. The plaintiff immediately reported to student health where she was assured that there were no known cases of a health care worker acquiring AIDS as a result of a needlestick. In early 1984, the plaintiff sustained another needlestick from an AIDS patient; she had been on duty for 22 hours and alleged that there were inadequate disposal facilities for contaminated needles. In March 1985, the plaintiff was seropositive for HIV, and she developed clinical AIDS in November 1987. The plaintiff brought suit in February 1988. The case twisted on the statute of limitations for bringing suit in New York, which was one year and 90 days from injury. The court, however, allowed HIV to fall under a New York law for toxic substances that permitted the commencement of an action three years after discovery of an injury caused by “the latent effects of exposure to any toxic substance” (Id at 168). The case was settled out of court in the plaintiff s favor for an undisclosed sum of money. Can you be .fired for refusing HZV testing or for being HZVpositive? The impact of the CDC guidelines released in July 1991 regarding HIV screening of health care professionals was not clear at the time of this writing. The Americans with Disabilities Act, passed by Congress in July 1990, recognizes individuals with AIDS as having a handicap. The act protects the employment of handicapped individuals unless there is a “significant risk” to other individuals. It is not settled whether HIV-infected health care workers impose a significant risk to patients. At present, cases of firing seropositive health profes-
AORN JOURNAL
SEPTEMBER 1991, VOL 54, NO 3
A health care professional could be sued for transmitting HIV to a patient. sionals are being dealt with individually. In Doe v s Westchester County Medical Center (Nos 1B-E-D-86-116054, 1B-P-D-87117683, slip op [NY State 1990]), a pharmacist whose HIV infection was discovered by his prospective employer, a hospital, was denied employment based on a presumed “risk to patients” in the preparation of IV pharmaceuticals. The court decided that the pharmacist posed a negligible risk to patients and that he should not be restricted in his clinical duties. In Behringer vs Medical Center at Princeton (No L88-2550 [NJ Sup Ct, April 1991]), an otolaryngologist sued the hospital on the grounds that the hospital violated a state law by discriminating against a disabled person when there was no reasonable probability of harm to others. The plaintiffs blood was tested in 1987 at the hospital’s emergency room after a period of unexplained illness. When he tested positive for HIV, word spread quickly throughout the hospital. The medical staff agreed there was no reason to restrict his practice as long as he observed standard infection control procedures. The hospital’s president and board of trustees, however, adopted a rule requiring written consent from his patients, effectively putting him out of practice. The court decided that the hospital violated the plaintiff‘s right as a patient by failing to keep the test results private. It also endorsed the policy restricting his practice stating “the ultimate risk to the patient is so absolute, so devastating that i t is untenable to argue against informed consent” (Id). In Lecklet vs Board of Commissioners of Hospital District No 1 (909 F 2d 820 [5th Cir 1990]), the court upheld a ruling that the firing of an LPN for failure to comply with the hospital’s request for HIV antibody testing did not violate the nurse’s civil rights. The nurse, a known homosexual, lived with a 600
roommate who had died from AIDS. On the advice of hospital counsel, the executive director of the hospital asked the nurse to submit to an AIDS test. The nurse informed the hospital that he had been tested elsewhere for HIV, but he refused to reveal the results. The court rejected the plaintiff s argument that he was discriminated against as a handicapped person. The court reasoned that he was fired for failing to submit the test results and not on the basis of the results themselves. The court also concluded that the right to know the plaintiffs health status, especially in light of his association with an AIDS patient, outweighed his right to privacy. Can you be sued f o r transmitting HZV infection to a patient? Although there is no case history on this aspect, the answer is yes. If the patient can prove that he or she is not in any high risk group for contracting AIDS and can trace a direct causal link back to the health care professional, then the patient has a right to bring suit. The infected patients of the Florida dentist are suing his estate. Other physicians have died from AIDS and none of their patients have yet tested positive for AIDS, but some are suing the estates of these physicians for mental anguish and suffering. The pursuit of these cases under criminal law is still untested regarding health care workers. Twenty states have enacted statutes that permit prosecution of persons whose behaviors pose risk of HIV t r a n ~ m i s s i o n .If~ a health care worker knows that he or she is HIV positive and knowingly participates in invasive procedures on patients, then he or she possibly could be charged with a criminal act.
What’s in the Future ?
R
easonable and fair guidelines or legislation that are based on facts, not hysteria, will be enacted. They will need to protect all con-
SEPTEMBER 1991. VOL 54. NO 3
cemed-patients, health care workers, and hospitals. So far, it appears that the rate of transmission from patients to health care workers is low and transmission from health care workers to patients is even lower. How long will hospitals and their insurance carriers want to continue the employment of HIV-infected health care professionals in fear of lawsuits from patients? Are we willing to tolerate the loss of dedicated health professionals to a health care system that already is overburdened? Who will make the final decisions-the CDC, the courts, the medical profession, the public, or congressional legislation? Only time will tell. MARGARET MORTHORST, RN, JD, CNOR PHILADELPHIA
AORN JOURNAL
(May 23, 1991) 1498-1500. 2. Centers for Disease Control, “Possible transmission of human immunodeficiency virus to a patient during an invasive dental procedure,” Morbidity and Mortality Weekly Report 39 (July 27, 1990) 489-493. 3. Ibid. 4. Centers for Disease Control, “Update: Transmission of HIV infection during an invasive dental procedure-Florida,” Morbidity and Mortality Weekly Report40 (January 18. 1991) 21. 5. R Bayer, “Public health policy and the AIDS epidemic: An end to HIV exceptionalism?” The New England Journal of Medicine 324 (May 23, 1991) 1502.
Notes I . M Angell, “A dual approach to the AIDS epidemic,” The New England Journal of Medicine 324
The above information is intended f o r general information only. Specific situations should be reviewed by legal counsel. If you have questions on OR nursing law that you would like answered, please send them to OR Nursing Law, c / o AORN Journal, 10170 E Mississippi Ave, Denver, CO 80231.
AIDS Clinical Trials Information Available
Placement Office for Nurse Executives
People infected with the human immunodeficiency virus (HIV) and those with acquired immune deficiency syndrome (AIDS) now have access to current information about clinical trials and new drugs. The AIDS Clinical Trials Information Service (ACTIS) is provided by the Centers for Disease Control, Atlanta, and the US Food and Drug Administration, the National Institute of Allergy and Infectious Diseases, and the National Library of Medicine, all in Bethesda, Md. Callers can obtain up-to-date information on both federally and privately sponsored HIV and AIDS clinical trials and on drugs used in the trials. Health care professionals, infected individuals, and families and friends of patients can use this national, toll-free information service. According to a news release from ACTIS, English- or Spanish-speaking medical reference specialists will direct callers to appropriate programs. All telephone calls and mailings are confidential. Callers can reach ACTIS at (800) TRIALS-A.
The American Organization of Nurse Executives (AONE), Chicago, has established a Career Advisory and Placement Office for Nurse Executives. The office is funded by the Commonwealth Fund and was created to help nurses obtain advanced degrees and positions as nurse executives after they earn their degrees, according to a May 199 1 press release from the American Hospital Association, Chicago. By contacting the office, nurses can receive up-to-date information and advice about financing their educations. They also will have the opportunity to talk with nurse executives who already have attained advanced degrees, according to the release. Health care institutions also can obtain information on nurses seeking executive positions. Nurses and health care institutions can obtain more information about the office by calling AONE at (3 12) 280-5994.
601
AORN JOURNAL
OR Nursing Law AIDS, HIV infection and health care professionals
T
his year marks the 10th anniversary of the acquired immune deficiency syndrome (AIDS) epidemic in the United States. Initially classified as a homosexual disease, AIDS not only carried the horror of certain death, but the stigma of a sexually transmitted disease and homosexuality. Members of the gay community rallied to protect themselves from discrimination and loss of employment, housing, and medical insurance. Their political lobbying and articulation of civil rights issues were successful in having AIDS and human immunodeficiency virus (HIV) infection treated as no other contagious or sexually transmitted disease had been treated in the past: confidentiality of those who have the disease, no screening for HIV on a large scale basis, and no efforts to trace sexual partners. Today AIDS is a disease of heterosexual and homosexual men, women, and children. More than 100,000 Americans have died from AIDS in the past decade. An estimated one million people currently are infected with the virus, and more than 125,000 of those are thought to have clinical AIDS.'
the Centers for Disease Control (CDC), Atlanta, to introduce universal precautions for all patients. Health care professionals were taught proper needle disposal and to use gloves and goggles whenever there was a chance of coming in contact with any patient's blood or body secretions. In emergency rooms and operating rooms, where large blood spillage could be expected, gloves, gowns, goggles, and masks were to be worn. This alleviated some but not all of the fear of caring for AIDS patients. In July 1990, the CDC reported the first transmission of HIV from an HTV-infected dentist to a patient.* The patient possibly contracted the disease during the removal of impacted third molars. The CDC announced in January 1991 that two more patients of the same Florida dentist had contracted the disease. The strain of the AIDS virus that infected the three patients was the same that infected the dentist. There is evidence that the dentist and his staff were inconsistent in compliance with infection control techniques (ie, reusing disposable items, washing and reusing latex gloves).' This reve-
AIDS Among Health Cure Professionals
Margaret Morthorst, RN, JD, CNOR, is assistant clinical manager, operating room, at Fox Chase Cancer Center, Philadelphia. She received her nursing diploma from Thomas Jefferson University, and her bachelor of science degree in nursing f r o m LaSalle University, both in Philadelphia. She earned her doctor of law degree at Temple University School of Law,Philadelphia.
I
nitially, health care workers only worried about AIDS as an occupationally transmitted disease. The fear of contracting AIDS from infected patients was so high and the concern that infected patients may receive inadequate care or be barred from medical care prompted
591
AORN JOURNAL
SEF’TEMBER I99 I , VOL 54, NO 3
If a hospital provides workers’ compensation for occupational illness, employees are precluded from suing the hospital in a tortious action. lation caused panic among the public who demanded wide-scale screening of all health care professionals for HIV seropositivity. In the past 10 years, 5,800 cases of AIDS have occurred among health care workers in the United States, and presumably many times that number are infected with HIV (clinical AIDS must be reported to the CDC but HIV seropositivity is not reportable). Of those 5,800 cases, however, only 37 acquired HIV during the course of their health occupational duties. There are only three known cases of transmission from a health care worker to a ~ a t i e n t . ~
Legal Implications for Health Care Workers
H
ealth care workers now are questioning how the AIDS epidemic will affect their professional duties and activities. What are the legal implications for health care professionals? Can you sue the hospital i f you HZV seroconvert during employment? Proof of causation is the difficulty in suing in this area. Health care professionals must prove that their seropositivity was directly caused by a needlestick or puncture with a device used on an HIVinfected patient. They must prove that they and any sexual partners do not fall into the other high risk groups (eg, homosexuality, IV drug abuse, liaisons with prostitutes, multiple blood transfusions). This may be difficult to prove. If a hospital provides workers’ compensation for occupational illness, employees are precluded by law from suing the hospital in a tortious action. The leading case in this area is Prego vs City oflvew York (141 Misc 2d 709 [NY Supp 19881 affd 147 AD2d 165 [NYAD 2d Dept 19891). The plaintiff, an extern at the defendant Kings County Hospital, assisted a hospital intern during the months of November 1982 through 598
January 1983 in drawing blood from an AIDSinfected patient. The intern left one of the needles used in drawing the blood on the patient’s bed mixed among “gauze, wrappers, and other refuse” (Id at 166). He instructed the plaintiff to “clean up the mess” (Id) and, in doing so, she was stuck by the contaminated needle. The plaintiff immediately reported to student health where she was assured that there were no known cases of a health care worker acquiring AIDS as a result of a needlestick. In early 1984, the plaintiff sustained another needlestick from an AIDS patient; she had been on duty for 22 hours and alleged that there were inadequate disposal facilities for contaminated needles. In March 1985, the plaintiff was seropositive for HIV, and she developed clinical AIDS in November 1987. The plaintiff brought suit in February 1988. The case twisted on the statute of limitations for bringing suit in New York, which was one year and 90 days from injury. The court, however, allowed HIV to fall under a New York law for toxic substances that permitted the commencement of an action three years after discovery of an injury caused by “the latent effects of exposure to any toxic substance” (Id at 168). The case was settled out of court in the plaintiff s favor for an undisclosed sum of money. Can you be .fired for refusing HZV testing or for being HZVpositive? The impact of the CDC guidelines released in July 1991 regarding HIV screening of health care professionals was not clear at the time of this writing. The Americans with Disabilities Act, passed by Congress in July 1990, recognizes individuals with AIDS as having a handicap. The act protects the employment of handicapped individuals unless there is a “significant risk” to other individuals. It is not settled whether HIV-infected health care workers impose a significant risk to patients. At present, cases of firing seropositive health profes-
AORN JOURNAL
SEPTEMBER 1991, VOL 54, NO 3
A health care professional could be sued for transmitting HIV to a patient. sionals are being dealt with individually. In Doe v s Westchester County Medical Center (Nos 1B-E-D-86-116054, 1B-P-D-87117683, slip op [NY State 1990]), a pharmacist whose HIV infection was discovered by his prospective employer, a hospital, was denied employment based on a presumed “risk to patients” in the preparation of IV pharmaceuticals. The court decided that the pharmacist posed a negligible risk to patients and that he should not be restricted in his clinical duties. In Behringer vs Medical Center at Princeton (No L88-2550 [NJ Sup Ct, April 1991]), an otolaryngologist sued the hospital on the grounds that the hospital violated a state law by discriminating against a disabled person when there was no reasonable probability of harm to others. The plaintiffs blood was tested in 1987 at the hospital’s emergency room after a period of unexplained illness. When he tested positive for HIV, word spread quickly throughout the hospital. The medical staff agreed there was no reason to restrict his practice as long as he observed standard infection control procedures. The hospital’s president and board of trustees, however, adopted a rule requiring written consent from his patients, effectively putting him out of practice. The court decided that the hospital violated the plaintiff‘s right as a patient by failing to keep the test results private. It also endorsed the policy restricting his practice stating “the ultimate risk to the patient is so absolute, so devastating that i t is untenable to argue against informed consent” (Id). In Lecklet vs Board of Commissioners of Hospital District No 1 (909 F 2d 820 [5th Cir 1990]), the court upheld a ruling that the firing of an LPN for failure to comply with the hospital’s request for HIV antibody testing did not violate the nurse’s civil rights. The nurse, a known homosexual, lived with a 600
roommate who had died from AIDS. On the advice of hospital counsel, the executive director of the hospital asked the nurse to submit to an AIDS test. The nurse informed the hospital that he had been tested elsewhere for HIV, but he refused to reveal the results. The court rejected the plaintiff s argument that he was discriminated against as a handicapped person. The court reasoned that he was fired for failing to submit the test results and not on the basis of the results themselves. The court also concluded that the right to know the plaintiffs health status, especially in light of his association with an AIDS patient, outweighed his right to privacy. Can you be sued f o r transmitting HZV infection to a patient? Although there is no case history on this aspect, the answer is yes. If the patient can prove that he or she is not in any high risk group for contracting AIDS and can trace a direct causal link back to the health care professional, then the patient has a right to bring suit. The infected patients of the Florida dentist are suing his estate. Other physicians have died from AIDS and none of their patients have yet tested positive for AIDS, but some are suing the estates of these physicians for mental anguish and suffering. The pursuit of these cases under criminal law is still untested regarding health care workers. Twenty states have enacted statutes that permit prosecution of persons whose behaviors pose risk of HIV t r a n ~ m i s s i o n .If~ a health care worker knows that he or she is HIV positive and knowingly participates in invasive procedures on patients, then he or she possibly could be charged with a criminal act.
What’s in the Future ?
R
easonable and fair guidelines or legislation that are based on facts, not hysteria, will be enacted. They will need to protect all con-
SEPTEMBER 1991. VOL 54. NO 3
cemed-patients, health care workers, and hospitals. So far, it appears that the rate of transmission from patients to health care workers is low and transmission from health care workers to patients is even lower. How long will hospitals and their insurance carriers want to continue the employment of HIV-infected health care professionals in fear of lawsuits from patients? Are we willing to tolerate the loss of dedicated health professionals to a health care system that already is overburdened? Who will make the final decisions-the CDC, the courts, the medical profession, the public, or congressional legislation? Only time will tell. MARGARET MORTHORST, RN, JD, CNOR PHILADELPHIA
AORN JOURNAL
(May 23, 1991) 1498-1500. 2. Centers for Disease Control, “Possible transmission of human immunodeficiency virus to a patient during an invasive dental procedure,” Morbidity and Mortality Weekly Report 39 (July 27, 1990) 489-493. 3. Ibid. 4. Centers for Disease Control, “Update: Transmission of HIV infection during an invasive dental procedure-Florida,” Morbidity and Mortality Weekly Report40 (January 18. 1991) 21. 5. R Bayer, “Public health policy and the AIDS epidemic: An end to HIV exceptionalism?” The New England Journal of Medicine 324 (May 23, 1991) 1502.
Notes I . M Angell, “A dual approach to the AIDS epidemic,” The New England Journal of Medicine 324
The above information is intended f o r general information only. Specific situations should be reviewed by legal counsel. If you have questions on OR nursing law that you would like answered, please send them to OR Nursing Law, c / o AORN Journal, 10170 E Mississippi Ave, Denver, CO 80231.
AIDS Clinical Trials Information Available
Placement Office for Nurse Executives
People infected with the human immunodeficiency virus (HIV) and those with acquired immune deficiency syndrome (AIDS) now have access to current information about clinical trials and new drugs. The AIDS Clinical Trials Information Service (ACTIS) is provided by the Centers for Disease Control, Atlanta, and the US Food and Drug Administration, the National Institute of Allergy and Infectious Diseases, and the National Library of Medicine, all in Bethesda, Md. Callers can obtain up-to-date information on both federally and privately sponsored HIV and AIDS clinical trials and on drugs used in the trials. Health care professionals, infected individuals, and families and friends of patients can use this national, toll-free information service. According to a news release from ACTIS, English- or Spanish-speaking medical reference specialists will direct callers to appropriate programs. All telephone calls and mailings are confidential. Callers can reach ACTIS at (800) TRIALS-A.
The American Organization of Nurse Executives (AONE), Chicago, has established a Career Advisory and Placement Office for Nurse Executives. The office is funded by the Commonwealth Fund and was created to help nurses obtain advanced degrees and positions as nurse executives after they earn their degrees, according to a May 199 1 press release from the American Hospital Association, Chicago. By contacting the office, nurses can receive up-to-date information and advice about financing their educations. They also will have the opportunity to talk with nurse executives who already have attained advanced degrees, according to the release. Health care institutions also can obtain information on nurses seeking executive positions. Nurses and health care institutions can obtain more information about the office by calling AONE at (3 12) 280-5994.
601