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Patient care and the health-impaired practitioner
International Journal of Gynecology and Obstetrics 78 (2002) 171–177
Ethical and legal issues in reproductive health
Patient care and the health-impaired practitioner R.J. Cooka,b,c, B.M. Dickensa,b,c,* a
Faculty of Law, University of Toronto, Toronto, Canada Faculty of Medicine, University of Toronto, Toronto, Canada c Joint Centre for Bioethics, University of Toronto, Toronto, Canada b
Accepted 18 April 2002
Abstract The risk of HIV-infected or otherwise impaired practitioners infecting or injuring their patients is very low, but is of proper concern to patients, practitioners and healthcare facilities. Practitioners’ general legal and ethical duties to protect patients includes protection against their own liability to present risk of harm. Healthcare facilities have similar duties of care to protect patients, for instance by proper selection and management of personnel, but may also bear indirect or vicarious (‘no fault’) legal liability for injuries due to the negligence of the personnel they engage. Impaired practitioners should disclose their status to licensing and health facility authorities. They are entitled to nondiscriminatory employment opportunities, but may be licensed and approved to practice under conditions that appropriately protect patients. When impaired practitioners practice within such approved conditions, modern courts hold that they have no legal duty to volunteer disclosure of their status to their patients. 䊚 2002 International Federation of Gynecology and Obstetrics. Published by Elsevier Science Ireland Ltd. All rights reserved. Keywords: Impaired healthcare practitioners; HIV-positive physicians; HIV-positive healthcare staff; Practitioner-to-patient infection; Vicarious legal liability of health facilities; Legal liability of health facilities; Hospital legal liability; Health facility legal liability
1. Introduction Since healthcare practitioners are better educated and equipped than others to protect their own health against infection and disability, patients may suppose that practitioners enjoy better health than they do. However, many conditions are not ame*Corresponding author. Faculty of Law, University of Toronto, Toronto, Canada. Tel.: q1-416-978-4849; fax: q1-416978-7899. E-mail address: [email protected] (B.M. Dickens).
nable to protective strategies, such as inherent liability to epilepsy, and healthcare providers are at higher risk than others of contracting infection from those they serve in their professional lives, such as by needlestick punctures. Patients who present, for instance, with HIVyAIDS, hepatitis and tuberculosis pose risks that universal precautions can reduce, but not eliminate. Further, some healthcare practitioners are attracted to their profession by interests in managing health conditions that affect them due, for instance, to genetic inheritance or congenital injury. Their suffering
0020-7292/02/$ - see front matter 䊚 2002 International Federation of Gynecology and Obstetrics. Published by Elsevier Science Ireland Ltd. All rights reserved. PII: S 0 0 2 0 - 7 2 9 2 Ž 0 2 . 0 0 0 9 5 - 4
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from or predisposition to impairments may motivate their commitment to healthcare practice. There are accordingly several explanations for the incidence of health impairments among healthcare practitioners. Healthcare practitioners’ liability to impairments of various types is not a novel issue. Alcoholism, drug and similar addictions have long been a source of professional vigilance and discipline w1x, and practitioners can be unduly distracted and suffer impaired work performance due to such causes as family disharmony, pressure of work w2x and malpractice suits w3x. Over the last 15 or so years, however, practitioners’ liability to HIV infection and AIDS has become a major focus of popular concern, less because of feared HIVrelated neuropsychological impairment w4x than of a perceived risk of practitioner-to-patient HIV transmission. Newsmedia reports of HIV-infected physicians, dentists and other healthcare practitioners have fed public concern that patients are in peril when healthcare practitioners are HIV-positive. While this concern merits attention as a matter of principle, it does not follow that the public in general or individual patients in particular are entitled to know the HIV-status of named practitioners. In 1987, for instance, the English High Court upheld an injunction that restrained a newspaper from publishing the names of two practicing physicians who were known to have tested HIV-positive w5x. The judge found that free and informed public debate about healthcare practitioners’ impairment could take place without this information, and that confidentiality of hospital records and comparable health information of identifiable individuals outweighs any public interest in press freedom to publish names. 2. Practitioners’ duty to protect In addition to courts being willing to protect health-impaired practitioners’ identities against public disclosure, courts do not generally require healthcare practitioners to be guarantors of the effectiveness or even the clinical safety of the procedures they recommend and undertake. That is, the law acknowledges that procedures that are
appropriate in principle for patients’ circumstances may be ineffective or even countertherapeutic in individual cases, due for instance to a patient’s idiosyncratic responses. Nevertheless, practitioners and health facilities are legally expected to take due safeguards against dangers of which they actually know, or reasonably should know because of their specialized training and duty to keep their information up to date. Accordingly, although it is generally unlikely that medical practitioners will expose patients to their body fluids, HIV-positive surgeons who undertake procedures that risk them cutting themselves and bleeding into patients bodies should refrain from undertaking procedures in body cavities when they will not have direct sight of their hands. There are limits to the use and protection of wearing double gloves, and added safety against cutting may be offset by reduced dexterity. Similarly, medical practitioners with hepatitis and comparably transmissible conditions will have to confine their practice to low-risk (if there are no no-risk) procedures. Infected practitioners who have manual skin abrasions must also exercise due care, both to avoid exposing patients to their blood and similar secretions, and themselves being exposed to infections transmissible from their patients. Practitioners whose personal lifestyle creates little risk of them contracting HIV or comparable infection must take precautions against becoming a conduit of patient-to-patient infection. Impairment may come not only from risks to practitioners’ personal health status, but also from the style of practice they undertake, by choice or by irresistible force of circumstances. The reuse of instruments and equipment exposed to one patient’s blood or other tissues or fluids for treatment of other patients, for instance, requires proper sterilization procedures, such as the proper application of solvents or heat treatment, and adequate skill and instruction of personnel. Danger to patients can arise not only from transmissible infection but also from sterilization procedures causing damage to the functioning of the instruments. A legal concern, not limited to resource-poor countries or settings, arises with reuse of instruments supplied as being for ‘single use only.’
R.J. Cook, B.M. Dickens / International Journal of Gynecology and Obstetrics 78 (2002) 171–177
Manufacturers may seek to avoid risk of legal liability by so describing their products, and not undertaking to test them for reuse and give instructions or advice on sterilization processes. It may be legally recognized, however, that due to the cost or scarcity of the instruments, responsible practice will accommodate their limited reuse. If the alternative to reuse of instruments necessary for patient care is harmful delay of treatment or instrument unavailability, courts may consider reuse with due care to fall within the principle that practitioners are not taken to guarantee complete safety of their processes. An unresolved refinement is whether disclosure of reuse is required for patients’ informed consent to treatment. 3. Others’ duty to protect Health facilities such as hospitals and clinics have legal duties to protect those whose treatment they institutionally undertake, and governmental licensing authorities bear ethical and sometimes legal responsibility for practitioners and facilities they permit to provide care. The legal liability of hospital and similar facilities can be two-fold. In some legal systems, facilities can be liable to patients for injuries caused by the negligence of practitioners who practice there, even when the facilities selected and screened such practitioners appropriately and were not otherwise at legal fault. When such vicarious (that is, ‘no fault’) legal liability arises, facilities can usually claim a legal right of indemnity against practitioners for whose injurious faults they incur indirect liability. Facilities may therefore make practitioners’ possession of private insurance or professional indemnity coverage a condition of employment, for fear that facilities’ legal rights of indemnity may prove worthless. Legal systems differ on those for whose faults facilities are vicariously liable. Some limit this to facilities’ salaried employees, notably staff physicians, nurses and pharmacists w6x while others include practitioners not employed as such by facilities but who are appointed to practice there while billing patients or patients’ insurers directly w7x. Government-paid staff members will usually fall under public-service employment laws, some of which grant governmental immunities.
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A second source of legal liability of health facilities is direct, arising from facilities’ failures to satisfy the legal standards of care by which they themselves are bound. They are required to ensure practitioners’ appropriately licensed and personal capacity to practice, limiting those with impairments to roles in which they will not expose patients to any, or at least to undue, hazards. For instance, HIV-positive surgeons may be precluded from undertaking more invasive procedures. In addition, facilities should require practitioners to disclose to senior staff members andyor facility administrative officers temporary or permanent impairments they incur, whether due to their interactions with patients or otherwise, such as from their personal health or private lives. Human rights principles of non-discrimination may preclude facilities from refusing or terminating employment rights on these grounds. Further, senior staff members and administrators are bound by legal duties of confidentiality not to allow practitioners’ records of impairment to be released, deliberately or by negligence, beyond the small circle of those who are obliged to know because of their own employment responsibilities. Healthcare-practitioner licensing authorities are legally empowered by government to declare the criteria by which those who possess the academic qualifications for practice will be professionally licensed. Ethically and perhaps legally, they are also bound to supervise licensed practitioners’ compliance with those criteria. For instance, practitioners with addiction-related or stress-related impairments that risk compromise of patient care may be required to discontinue clinical practice until their disabilities have been overcome. Those prone to such chronic conditions as epilepsy may be required to take proper medication for management, to discontinue patient care and arrange suitable transfer of responsibility for patients at first sign of onset of condition-related disability, and to keep healthcare facilities that engage them and their licensing authorities informed of their continuing capacity to practice safely. Practitioners with HIV-infection or hepatitis will similarly be required to limit themselves to safe forms of practice, and to notify facilities at which they give care and licensing authorities of any condition-
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related progressive physical or psychiatric impairments of their capacity for safe practice. Licensing authorities usually have jurisdiction to supervise those they license, on grounds both of discipline for misconduct and of fitness to practice. Proceedings authorities bring on grounds of unfitness are not necessarily punitive in nature, but discharge authorities’ responsibilities to protect the public in general and patients in particular. Practitioners who voluntarily disclose possible impairments but contest whether their practice license should be limited or suspended will usually be entitled to a quasi-judicial hearing, and to defend any claim that licensing authorities’ public responsibility requires such limit or suspension. If a defense fails, a practitioner suffers no damage to his or her public reputation or professional respect; indeed, on the contrary, if a practitioner volunteers information of an impairment from meeting expected standards of patient care, he or she merits recognition for demonstrating professional responsibility. The practitioner’s income may fall, of course, but should be redeemed at least in part by any professional disability insurance protection the practitioner carries. 4. Disclosure to patients: the early law Courts have differed over the years on whether practitioners have a legal duty to inform prospective patients of any health impairments they suffer, such as HIV-infection. Practitioners are generally bound, under legal doctrines of consent, to provide patients, including prospective patients, with information that is material to the choice patients have to make regarding whether to have care that practitioners recommend for them, or any alternative care. Practitioners have not generally been required, however, to disclose information relevant to their own capacity to render care, provided that they are licensed by relevant authorities, and approved by the healthcare facilities in which they practice, to provide such care. They are not required to disclose, for instance, that the procedure they propose to undertake would be their first conducted without supervision of a senior colleague w8x. In jurisdictions such as England, where certain medical acts may legally be undertaken by
those who are not medically qualified, unqualified people are legally prohibited from holding out that they are qualified w9x. It may appear contradictory or perverse if, despite legal doctrines of the requirement of patients’ informed consent for treatment, practitioners and healthcare facilities do not have to inform prospective patients of facts which patients might consider critically important to their decisions whether to have particular practitioners treat them, such as that the practitioners have HIVinfection or hepatitis, or are epileptic. At the beginning of the 1990s, after reports that an HIVpositive dentist in Florida had infected a number of his patients, polls in the US showed that 80– 90% of patients surveyed wanted to know if their physicians are HIV-infected w10x. In the early years of public consciousness of HIVyAIDS, some US courts held that patients should be so informed, even when the practitioners’ conditions posed no danger to patients w11x. These courts followed earlier rulings made in favor of patients who sued because of anxiety they suffered between being informed that they may have contracted cancer, and test results showing that they had not, the socalled ‘cancerphobia’ cases w12x. Courts in the US are liable to address novel claims earlier than courts of other countries, because of a distinctive and perhaps unique feature of US litigation. Lawyers can take cases on behalf of complainants, called plaintiffs, on a contingency fee basis, meaning a ‘no win, no pay’ basis by which lawyers recover fees only as a proportion of sums of money they recover for their clients. State and local Bar Associations fix the proportion lawyers are eligible to recover, on a sliding scale. Many non-US jurisdictions also allow lawyers’ contingency billing, which in effect makes lawyers partners in their clients’ litigation. Distinctive to the US system, however, is that individuals’ access to the courts is so protected that plaintiffs are usually not required, as they are in other legal systems, to pay the defendants’ necessary legal defense costs if plaintiffs lose their claims. Accordingly, novel claims are facilitated in US courts because unsuccessful plaintiffs, paying neither their own legal expenses nor those of the defendants they sue, bear none of the financial costs of
R.J. Cook, B.M. Dickens / International Journal of Gynecology and Obstetrics 78 (2002) 171–177
the litigation they have caused, and so are in a ‘no lose’ position. The hardship to defendants is somewhat relieved in that only defendants with sizeable resources (‘deep pockets’) tend to be sued. In the early years of HIVyAIDS awareness in the US, plaintiffs who as patients learned that the physicians who had treated them were healthimpaired, particularly but not only due to HIVinfection, sued on grounds such as that, although they had not suffered infection or other physical injury, their consent to treatment had been procured by misrepresentation, that physicians’ touching them without their consent constituted an assault and, for instance, that there was deliberate or negligent infliction of emotional injury w13x. They sued the physicians personally, andyor they sued the healthcare facilities in which they worked alleging both direct and vicarious liability w10x. Courts sometimes applied an expansive interpretation of the informed consent concept, sympathetically to plaintiffs’ claims that, as patients, they would have refused treatment by the physicians who had treated them had they been informed of the physicians’ health status. 5. Disclosure to patients: the modern law In more recent years, a number of influences have persuaded courts to see the matter differently. One is the recognition that judicial imposition of legal liability to patients who have suffered no infection or other physical injury from treatment by health-impaired practitioners is counter-productive, in that it provides such practitioners with reasons to deny diagnosis and suppress knowledge of their impairment, and decline treatment that could be curative or minimize the risk to patients. Another is that health-impaired practitioners who disclose their conditions to employing facilities andyor licensing authorities themselves become patients of treatment, and as such enjoy legitimate claims to confidentiality. A narrower, legalistic influence is review of the doctrine of informed consent, showing that its focus is intended to be on information material to choice among treatment options, and not on personal characteristics of practitioners when they do not affect risk factors relevant to these options.
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A transcending and perhaps transformative consideration has come from human rights principles of nondiscrimination. Courts do not want to cater to patients’ discriminatory attitudes towards HIVinfected and otherwise health-impaired practitioners. If such practitioners have actually caused injury, affected patients are clearly entitled to legal remedies, but evidence shows that risks of HIV infection from HIV-infected physicians are so remote as to be undetectable and virtually nonexistent w14x. Fears may be no less genuine because they are irrational, but courts do not want to reward patients’ irrational fears, nor accommodate their prejudices. In 1992, the US National Commission on AIDS noted that the records of over 15 000 patients treated by 32 HIV-positive healthcare professionals disclosed no case of physician-to-patient HIV-transmission w15x. In 1993, the US Centers for Disease Control (CDC) reported similarly that HIV tests and follow-up on 19 036 patients treated by 57 HIV-infected healthcare practitioners showed no confirmed instance of seroconversion due to such treatment w16x. The legal doctrine of informed consent requires that disclosures to patients be pitched at the prudent or reasonable person in a particular patient’s circumstances w17x. In light of CDC estimates that a patient undergoing a seriously invasive procedure by an HIV-infected healthcare practitioner has between a 1-in-40 000 and a 1-in-400 000 chance of infection, and other researchers’ calculations that the risk of an HIV-infected surgeon infecting a patient during a 1-h operation is 1-in-83 000, w18x modern courts do not require HIV-positivity to be disclosed to patients. In a 1995 Delaware Supreme Court case, for instance, the court observed that: It is unreasonable for a person to fear infection when that person has not been exposed to a disease. In the case of AIDS, actual exposure to HIV may escalate the threat of infection from a theoretical, remote risk to a real and grave possibility if the person exposed is motivated by speculation unrelated to the objective setting. Such fear is based on uninformed apprehension, not reality. In such circumstances, the fear of contracting AIDS is per se unreasonable without proof of actual exposure to HIV. In our view, the mere fear of contracting AIDS, in the absence of actual exposure to HIV, is not sufficient to impose liability on a health care
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provider. AIDS phobia, standing alone, cannot form the basis for recovery of damages w19x.
This reasoning is not limited to cases of HIVinfection. In a 2001 Canadian case, the Alberta Court of Appeal unanimously upheld the ruling of the trial judge that a physician did not have to disclose his epilepsy. The plaintiff had died of a pulmonary thromboembolism following a hysterectomy performed by an obstetricianygynecologist. It was alleged on behalf of her estate that she had not given legally valid consent to the surgery because she was unaware of his epilepsy, and would not have consented to him operating on her had this been disclosed w20x. The Court found no liability for the physician’s non-disclosure, however, because his own physicians had cleared him to continue practicing, he was taking medication that kept his epilepsy under control, and had made no concealment of his condition to those in the hospital responsible for his care of patients. He presented no material risk to the patient that required disclosure to her. More controversially in the US, the Supreme Court of Georgia ruled in 2000 that physicians do not have to disclose their negative personal life factors such as illegal drug use before treating patients, in the absence of a patient’s specific inquiry w21x. As against this, licensing authorities, governmental public health departments and courts may hold that if, following treatment of patients, it appears that physicians were suffering from previously unrecognized health impairments, patients have a right to be informed w22x. This is to enable patients to seek precautionary examination to determine whether the physicians’ impairments have had an adverse effect on the patients’ physical health, and to obtain appropriate care if such harm has resulted. Patients who have not been harmed are decreasingly likely to succeed if they sue for damages, for instance for negligently inflicted emotional injury caused by the anxiety they suffered between receiving notification and negative results of examination. A negligence claim may succeed, however, if appropriate examinations themselves caused unavoidable physical harm. In any event, such ex post facto disclosure should be
accompanied by counseling regarding the risk of the practitioners’ impairments causing patients infection or other harm. In the case of HIVinfection, for instance, counseling should reduce reasonable anxiety to a low level. References w1x Centrella M. Physician addiction and impairment— current thinking: a review. J Addict Dis 1994;13:91 – 105. w2x Deckard G, Meterko M, Field D. Physician burnout: an examination of personal, professional, and organizational relationships. Med Care 1994;32:745 –754. w3x ACOG committee opinion: coping with the stress of malpractice litigation. Int J Gynecol Obstet 2001;74:65 – 66. w4x Selnes OA, Miller E, McArthur J, Gordon B, Munoz A, Sheridan K, et al. HIV-1 infection: no evidence of cognitive decline during the asymptomatic stages. Neurology 1990;40:204 –208. w5x X v. Y (1988) 2 All England Reports 648 (Queen’s Bench Division). w6x Yepremian v. Scarborough General Hospital (1980), 110 Dominion Law Reports (3d) 513 (Ontario Court of Appeal). w7x Darling v. Charleston Community Hospital (1965), 211 North Eastern Reporter 2d 253 (Illinois Court of Appeals). w8x Hopp v. Lepp (1980), 112 Dominion Law Reports (3d) 67 (Supreme Court of Canada). w9x Kennedy I, Grubb A, editors. Principles of medical law. Oxford: Oxford University Press; 1998. p. 72 w10x Daniels N. HIV-infected professionals, patient rights, and the ‘switching dilemma’. J Am Med Assoc 1992;267:1368 –1371. w11x DeVille KA. Nothing to fear but fear itself: HIV-infected physicians and the law of informed consent. J Law Med Ethics 1994;22:163 –175. w12x Behringer v. The Medical Center at Princeton (1991), 592 Atlantic Reporter 2nd 1251 (New Jersey Superior Court). w13x Faya v. Almaraz (1993), 620 Atlantic Reporter 2nd 327 (Maryland Court of Appeals). w14x Rogers AS, Froggatt JW, Townsend T, et al. Investigation of potential HIV transmission to the patients of an infected HIV-infected surgeon. J Am Med Assoc 1993;269:1795 –1801. w15x Leary WE. Mandatory AIDS tests for doctors opposed. New York Times 1992;31July:A11. w16x Centers for Disease Control. Update: investigations of persons treated by HIV-infected health care workers. US Morbid Mortal Wkly Rep 1993;42:329 –331. w17x Canterbury v. Spence (1972), 464 Federal Reporter 2nd 772 (District of Columbia Circuit Court).
R.J. Cook, B.M. Dickens / International Journal of Gynecology and Obstetrics 78 (2002) 171–177 w18x Daniels N. HIV-infected health care professionals: public threat or public sacrifice? Milbank Q 1992;70(342):11 –17. w19x Brzoska v. Olson (1995), 668 Atlantic Reporter 2d. 1355 (Sup. Ct. Delaware) at 1363. w20x Halkyard v. Mathew (2001), 91 Alberta Law Reports (3d) 201 (Alberta Court of Appeal).
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w21x Albany Urology Clinics, P.C. v. Cleveland (2000), 528 South Eastern Reporter, 2nd 777 (Georgia Supreme Court). w22x Furrow BR. Must physicians reveal their wounds? Cambridge Quarterly of Healthcare Ethics 1996;5:204 – 213.
Ethical and legal issues in reproductive health
Patient care and the health-impaired practitioner R.J. Cooka,b,c, B.M. Dickensa,b,c,* a
Faculty of Law, University of Toronto, Toronto, Canada Faculty of Medicine, University of Toronto, Toronto, Canada c Joint Centre for Bioethics, University of Toronto, Toronto, Canada b
Accepted 18 April 2002
Abstract The risk of HIV-infected or otherwise impaired practitioners infecting or injuring their patients is very low, but is of proper concern to patients, practitioners and healthcare facilities. Practitioners’ general legal and ethical duties to protect patients includes protection against their own liability to present risk of harm. Healthcare facilities have similar duties of care to protect patients, for instance by proper selection and management of personnel, but may also bear indirect or vicarious (‘no fault’) legal liability for injuries due to the negligence of the personnel they engage. Impaired practitioners should disclose their status to licensing and health facility authorities. They are entitled to nondiscriminatory employment opportunities, but may be licensed and approved to practice under conditions that appropriately protect patients. When impaired practitioners practice within such approved conditions, modern courts hold that they have no legal duty to volunteer disclosure of their status to their patients. 䊚 2002 International Federation of Gynecology and Obstetrics. Published by Elsevier Science Ireland Ltd. All rights reserved. Keywords: Impaired healthcare practitioners; HIV-positive physicians; HIV-positive healthcare staff; Practitioner-to-patient infection; Vicarious legal liability of health facilities; Legal liability of health facilities; Hospital legal liability; Health facility legal liability
1. Introduction Since healthcare practitioners are better educated and equipped than others to protect their own health against infection and disability, patients may suppose that practitioners enjoy better health than they do. However, many conditions are not ame*Corresponding author. Faculty of Law, University of Toronto, Toronto, Canada. Tel.: q1-416-978-4849; fax: q1-416978-7899. E-mail address: [email protected] (B.M. Dickens).
nable to protective strategies, such as inherent liability to epilepsy, and healthcare providers are at higher risk than others of contracting infection from those they serve in their professional lives, such as by needlestick punctures. Patients who present, for instance, with HIVyAIDS, hepatitis and tuberculosis pose risks that universal precautions can reduce, but not eliminate. Further, some healthcare practitioners are attracted to their profession by interests in managing health conditions that affect them due, for instance, to genetic inheritance or congenital injury. Their suffering
0020-7292/02/$ - see front matter 䊚 2002 International Federation of Gynecology and Obstetrics. Published by Elsevier Science Ireland Ltd. All rights reserved. PII: S 0 0 2 0 - 7 2 9 2 Ž 0 2 . 0 0 0 9 5 - 4
172
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from or predisposition to impairments may motivate their commitment to healthcare practice. There are accordingly several explanations for the incidence of health impairments among healthcare practitioners. Healthcare practitioners’ liability to impairments of various types is not a novel issue. Alcoholism, drug and similar addictions have long been a source of professional vigilance and discipline w1x, and practitioners can be unduly distracted and suffer impaired work performance due to such causes as family disharmony, pressure of work w2x and malpractice suits w3x. Over the last 15 or so years, however, practitioners’ liability to HIV infection and AIDS has become a major focus of popular concern, less because of feared HIVrelated neuropsychological impairment w4x than of a perceived risk of practitioner-to-patient HIV transmission. Newsmedia reports of HIV-infected physicians, dentists and other healthcare practitioners have fed public concern that patients are in peril when healthcare practitioners are HIV-positive. While this concern merits attention as a matter of principle, it does not follow that the public in general or individual patients in particular are entitled to know the HIV-status of named practitioners. In 1987, for instance, the English High Court upheld an injunction that restrained a newspaper from publishing the names of two practicing physicians who were known to have tested HIV-positive w5x. The judge found that free and informed public debate about healthcare practitioners’ impairment could take place without this information, and that confidentiality of hospital records and comparable health information of identifiable individuals outweighs any public interest in press freedom to publish names. 2. Practitioners’ duty to protect In addition to courts being willing to protect health-impaired practitioners’ identities against public disclosure, courts do not generally require healthcare practitioners to be guarantors of the effectiveness or even the clinical safety of the procedures they recommend and undertake. That is, the law acknowledges that procedures that are
appropriate in principle for patients’ circumstances may be ineffective or even countertherapeutic in individual cases, due for instance to a patient’s idiosyncratic responses. Nevertheless, practitioners and health facilities are legally expected to take due safeguards against dangers of which they actually know, or reasonably should know because of their specialized training and duty to keep their information up to date. Accordingly, although it is generally unlikely that medical practitioners will expose patients to their body fluids, HIV-positive surgeons who undertake procedures that risk them cutting themselves and bleeding into patients bodies should refrain from undertaking procedures in body cavities when they will not have direct sight of their hands. There are limits to the use and protection of wearing double gloves, and added safety against cutting may be offset by reduced dexterity. Similarly, medical practitioners with hepatitis and comparably transmissible conditions will have to confine their practice to low-risk (if there are no no-risk) procedures. Infected practitioners who have manual skin abrasions must also exercise due care, both to avoid exposing patients to their blood and similar secretions, and themselves being exposed to infections transmissible from their patients. Practitioners whose personal lifestyle creates little risk of them contracting HIV or comparable infection must take precautions against becoming a conduit of patient-to-patient infection. Impairment may come not only from risks to practitioners’ personal health status, but also from the style of practice they undertake, by choice or by irresistible force of circumstances. The reuse of instruments and equipment exposed to one patient’s blood or other tissues or fluids for treatment of other patients, for instance, requires proper sterilization procedures, such as the proper application of solvents or heat treatment, and adequate skill and instruction of personnel. Danger to patients can arise not only from transmissible infection but also from sterilization procedures causing damage to the functioning of the instruments. A legal concern, not limited to resource-poor countries or settings, arises with reuse of instruments supplied as being for ‘single use only.’
R.J. Cook, B.M. Dickens / International Journal of Gynecology and Obstetrics 78 (2002) 171–177
Manufacturers may seek to avoid risk of legal liability by so describing their products, and not undertaking to test them for reuse and give instructions or advice on sterilization processes. It may be legally recognized, however, that due to the cost or scarcity of the instruments, responsible practice will accommodate their limited reuse. If the alternative to reuse of instruments necessary for patient care is harmful delay of treatment or instrument unavailability, courts may consider reuse with due care to fall within the principle that practitioners are not taken to guarantee complete safety of their processes. An unresolved refinement is whether disclosure of reuse is required for patients’ informed consent to treatment. 3. Others’ duty to protect Health facilities such as hospitals and clinics have legal duties to protect those whose treatment they institutionally undertake, and governmental licensing authorities bear ethical and sometimes legal responsibility for practitioners and facilities they permit to provide care. The legal liability of hospital and similar facilities can be two-fold. In some legal systems, facilities can be liable to patients for injuries caused by the negligence of practitioners who practice there, even when the facilities selected and screened such practitioners appropriately and were not otherwise at legal fault. When such vicarious (that is, ‘no fault’) legal liability arises, facilities can usually claim a legal right of indemnity against practitioners for whose injurious faults they incur indirect liability. Facilities may therefore make practitioners’ possession of private insurance or professional indemnity coverage a condition of employment, for fear that facilities’ legal rights of indemnity may prove worthless. Legal systems differ on those for whose faults facilities are vicariously liable. Some limit this to facilities’ salaried employees, notably staff physicians, nurses and pharmacists w6x while others include practitioners not employed as such by facilities but who are appointed to practice there while billing patients or patients’ insurers directly w7x. Government-paid staff members will usually fall under public-service employment laws, some of which grant governmental immunities.
173
A second source of legal liability of health facilities is direct, arising from facilities’ failures to satisfy the legal standards of care by which they themselves are bound. They are required to ensure practitioners’ appropriately licensed and personal capacity to practice, limiting those with impairments to roles in which they will not expose patients to any, or at least to undue, hazards. For instance, HIV-positive surgeons may be precluded from undertaking more invasive procedures. In addition, facilities should require practitioners to disclose to senior staff members andyor facility administrative officers temporary or permanent impairments they incur, whether due to their interactions with patients or otherwise, such as from their personal health or private lives. Human rights principles of non-discrimination may preclude facilities from refusing or terminating employment rights on these grounds. Further, senior staff members and administrators are bound by legal duties of confidentiality not to allow practitioners’ records of impairment to be released, deliberately or by negligence, beyond the small circle of those who are obliged to know because of their own employment responsibilities. Healthcare-practitioner licensing authorities are legally empowered by government to declare the criteria by which those who possess the academic qualifications for practice will be professionally licensed. Ethically and perhaps legally, they are also bound to supervise licensed practitioners’ compliance with those criteria. For instance, practitioners with addiction-related or stress-related impairments that risk compromise of patient care may be required to discontinue clinical practice until their disabilities have been overcome. Those prone to such chronic conditions as epilepsy may be required to take proper medication for management, to discontinue patient care and arrange suitable transfer of responsibility for patients at first sign of onset of condition-related disability, and to keep healthcare facilities that engage them and their licensing authorities informed of their continuing capacity to practice safely. Practitioners with HIV-infection or hepatitis will similarly be required to limit themselves to safe forms of practice, and to notify facilities at which they give care and licensing authorities of any condition-
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related progressive physical or psychiatric impairments of their capacity for safe practice. Licensing authorities usually have jurisdiction to supervise those they license, on grounds both of discipline for misconduct and of fitness to practice. Proceedings authorities bring on grounds of unfitness are not necessarily punitive in nature, but discharge authorities’ responsibilities to protect the public in general and patients in particular. Practitioners who voluntarily disclose possible impairments but contest whether their practice license should be limited or suspended will usually be entitled to a quasi-judicial hearing, and to defend any claim that licensing authorities’ public responsibility requires such limit or suspension. If a defense fails, a practitioner suffers no damage to his or her public reputation or professional respect; indeed, on the contrary, if a practitioner volunteers information of an impairment from meeting expected standards of patient care, he or she merits recognition for demonstrating professional responsibility. The practitioner’s income may fall, of course, but should be redeemed at least in part by any professional disability insurance protection the practitioner carries. 4. Disclosure to patients: the early law Courts have differed over the years on whether practitioners have a legal duty to inform prospective patients of any health impairments they suffer, such as HIV-infection. Practitioners are generally bound, under legal doctrines of consent, to provide patients, including prospective patients, with information that is material to the choice patients have to make regarding whether to have care that practitioners recommend for them, or any alternative care. Practitioners have not generally been required, however, to disclose information relevant to their own capacity to render care, provided that they are licensed by relevant authorities, and approved by the healthcare facilities in which they practice, to provide such care. They are not required to disclose, for instance, that the procedure they propose to undertake would be their first conducted without supervision of a senior colleague w8x. In jurisdictions such as England, where certain medical acts may legally be undertaken by
those who are not medically qualified, unqualified people are legally prohibited from holding out that they are qualified w9x. It may appear contradictory or perverse if, despite legal doctrines of the requirement of patients’ informed consent for treatment, practitioners and healthcare facilities do not have to inform prospective patients of facts which patients might consider critically important to their decisions whether to have particular practitioners treat them, such as that the practitioners have HIVinfection or hepatitis, or are epileptic. At the beginning of the 1990s, after reports that an HIVpositive dentist in Florida had infected a number of his patients, polls in the US showed that 80– 90% of patients surveyed wanted to know if their physicians are HIV-infected w10x. In the early years of public consciousness of HIVyAIDS, some US courts held that patients should be so informed, even when the practitioners’ conditions posed no danger to patients w11x. These courts followed earlier rulings made in favor of patients who sued because of anxiety they suffered between being informed that they may have contracted cancer, and test results showing that they had not, the socalled ‘cancerphobia’ cases w12x. Courts in the US are liable to address novel claims earlier than courts of other countries, because of a distinctive and perhaps unique feature of US litigation. Lawyers can take cases on behalf of complainants, called plaintiffs, on a contingency fee basis, meaning a ‘no win, no pay’ basis by which lawyers recover fees only as a proportion of sums of money they recover for their clients. State and local Bar Associations fix the proportion lawyers are eligible to recover, on a sliding scale. Many non-US jurisdictions also allow lawyers’ contingency billing, which in effect makes lawyers partners in their clients’ litigation. Distinctive to the US system, however, is that individuals’ access to the courts is so protected that plaintiffs are usually not required, as they are in other legal systems, to pay the defendants’ necessary legal defense costs if plaintiffs lose their claims. Accordingly, novel claims are facilitated in US courts because unsuccessful plaintiffs, paying neither their own legal expenses nor those of the defendants they sue, bear none of the financial costs of
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the litigation they have caused, and so are in a ‘no lose’ position. The hardship to defendants is somewhat relieved in that only defendants with sizeable resources (‘deep pockets’) tend to be sued. In the early years of HIVyAIDS awareness in the US, plaintiffs who as patients learned that the physicians who had treated them were healthimpaired, particularly but not only due to HIVinfection, sued on grounds such as that, although they had not suffered infection or other physical injury, their consent to treatment had been procured by misrepresentation, that physicians’ touching them without their consent constituted an assault and, for instance, that there was deliberate or negligent infliction of emotional injury w13x. They sued the physicians personally, andyor they sued the healthcare facilities in which they worked alleging both direct and vicarious liability w10x. Courts sometimes applied an expansive interpretation of the informed consent concept, sympathetically to plaintiffs’ claims that, as patients, they would have refused treatment by the physicians who had treated them had they been informed of the physicians’ health status. 5. Disclosure to patients: the modern law In more recent years, a number of influences have persuaded courts to see the matter differently. One is the recognition that judicial imposition of legal liability to patients who have suffered no infection or other physical injury from treatment by health-impaired practitioners is counter-productive, in that it provides such practitioners with reasons to deny diagnosis and suppress knowledge of their impairment, and decline treatment that could be curative or minimize the risk to patients. Another is that health-impaired practitioners who disclose their conditions to employing facilities andyor licensing authorities themselves become patients of treatment, and as such enjoy legitimate claims to confidentiality. A narrower, legalistic influence is review of the doctrine of informed consent, showing that its focus is intended to be on information material to choice among treatment options, and not on personal characteristics of practitioners when they do not affect risk factors relevant to these options.
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A transcending and perhaps transformative consideration has come from human rights principles of nondiscrimination. Courts do not want to cater to patients’ discriminatory attitudes towards HIVinfected and otherwise health-impaired practitioners. If such practitioners have actually caused injury, affected patients are clearly entitled to legal remedies, but evidence shows that risks of HIV infection from HIV-infected physicians are so remote as to be undetectable and virtually nonexistent w14x. Fears may be no less genuine because they are irrational, but courts do not want to reward patients’ irrational fears, nor accommodate their prejudices. In 1992, the US National Commission on AIDS noted that the records of over 15 000 patients treated by 32 HIV-positive healthcare professionals disclosed no case of physician-to-patient HIV-transmission w15x. In 1993, the US Centers for Disease Control (CDC) reported similarly that HIV tests and follow-up on 19 036 patients treated by 57 HIV-infected healthcare practitioners showed no confirmed instance of seroconversion due to such treatment w16x. The legal doctrine of informed consent requires that disclosures to patients be pitched at the prudent or reasonable person in a particular patient’s circumstances w17x. In light of CDC estimates that a patient undergoing a seriously invasive procedure by an HIV-infected healthcare practitioner has between a 1-in-40 000 and a 1-in-400 000 chance of infection, and other researchers’ calculations that the risk of an HIV-infected surgeon infecting a patient during a 1-h operation is 1-in-83 000, w18x modern courts do not require HIV-positivity to be disclosed to patients. In a 1995 Delaware Supreme Court case, for instance, the court observed that: It is unreasonable for a person to fear infection when that person has not been exposed to a disease. In the case of AIDS, actual exposure to HIV may escalate the threat of infection from a theoretical, remote risk to a real and grave possibility if the person exposed is motivated by speculation unrelated to the objective setting. Such fear is based on uninformed apprehension, not reality. In such circumstances, the fear of contracting AIDS is per se unreasonable without proof of actual exposure to HIV. In our view, the mere fear of contracting AIDS, in the absence of actual exposure to HIV, is not sufficient to impose liability on a health care
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provider. AIDS phobia, standing alone, cannot form the basis for recovery of damages w19x.
This reasoning is not limited to cases of HIVinfection. In a 2001 Canadian case, the Alberta Court of Appeal unanimously upheld the ruling of the trial judge that a physician did not have to disclose his epilepsy. The plaintiff had died of a pulmonary thromboembolism following a hysterectomy performed by an obstetricianygynecologist. It was alleged on behalf of her estate that she had not given legally valid consent to the surgery because she was unaware of his epilepsy, and would not have consented to him operating on her had this been disclosed w20x. The Court found no liability for the physician’s non-disclosure, however, because his own physicians had cleared him to continue practicing, he was taking medication that kept his epilepsy under control, and had made no concealment of his condition to those in the hospital responsible for his care of patients. He presented no material risk to the patient that required disclosure to her. More controversially in the US, the Supreme Court of Georgia ruled in 2000 that physicians do not have to disclose their negative personal life factors such as illegal drug use before treating patients, in the absence of a patient’s specific inquiry w21x. As against this, licensing authorities, governmental public health departments and courts may hold that if, following treatment of patients, it appears that physicians were suffering from previously unrecognized health impairments, patients have a right to be informed w22x. This is to enable patients to seek precautionary examination to determine whether the physicians’ impairments have had an adverse effect on the patients’ physical health, and to obtain appropriate care if such harm has resulted. Patients who have not been harmed are decreasingly likely to succeed if they sue for damages, for instance for negligently inflicted emotional injury caused by the anxiety they suffered between receiving notification and negative results of examination. A negligence claim may succeed, however, if appropriate examinations themselves caused unavoidable physical harm. In any event, such ex post facto disclosure should be
accompanied by counseling regarding the risk of the practitioners’ impairments causing patients infection or other harm. In the case of HIVinfection, for instance, counseling should reduce reasonable anxiety to a low level. References w1x Centrella M. Physician addiction and impairment— current thinking: a review. J Addict Dis 1994;13:91 – 105. w2x Deckard G, Meterko M, Field D. Physician burnout: an examination of personal, professional, and organizational relationships. Med Care 1994;32:745 –754. w3x ACOG committee opinion: coping with the stress of malpractice litigation. Int J Gynecol Obstet 2001;74:65 – 66. w4x Selnes OA, Miller E, McArthur J, Gordon B, Munoz A, Sheridan K, et al. HIV-1 infection: no evidence of cognitive decline during the asymptomatic stages. Neurology 1990;40:204 –208. w5x X v. Y (1988) 2 All England Reports 648 (Queen’s Bench Division). w6x Yepremian v. Scarborough General Hospital (1980), 110 Dominion Law Reports (3d) 513 (Ontario Court of Appeal). w7x Darling v. Charleston Community Hospital (1965), 211 North Eastern Reporter 2d 253 (Illinois Court of Appeals). w8x Hopp v. Lepp (1980), 112 Dominion Law Reports (3d) 67 (Supreme Court of Canada). w9x Kennedy I, Grubb A, editors. Principles of medical law. Oxford: Oxford University Press; 1998. p. 72 w10x Daniels N. HIV-infected professionals, patient rights, and the ‘switching dilemma’. J Am Med Assoc 1992;267:1368 –1371. w11x DeVille KA. Nothing to fear but fear itself: HIV-infected physicians and the law of informed consent. J Law Med Ethics 1994;22:163 –175. w12x Behringer v. The Medical Center at Princeton (1991), 592 Atlantic Reporter 2nd 1251 (New Jersey Superior Court). w13x Faya v. Almaraz (1993), 620 Atlantic Reporter 2nd 327 (Maryland Court of Appeals). w14x Rogers AS, Froggatt JW, Townsend T, et al. Investigation of potential HIV transmission to the patients of an infected HIV-infected surgeon. J Am Med Assoc 1993;269:1795 –1801. w15x Leary WE. Mandatory AIDS tests for doctors opposed. New York Times 1992;31July:A11. w16x Centers for Disease Control. Update: investigations of persons treated by HIV-infected health care workers. US Morbid Mortal Wkly Rep 1993;42:329 –331. w17x Canterbury v. Spence (1972), 464 Federal Reporter 2nd 772 (District of Columbia Circuit Court).
R.J. Cook, B.M. Dickens / International Journal of Gynecology and Obstetrics 78 (2002) 171–177 w18x Daniels N. HIV-infected health care professionals: public threat or public sacrifice? Milbank Q 1992;70(342):11 –17. w19x Brzoska v. Olson (1995), 668 Atlantic Reporter 2d. 1355 (Sup. Ct. Delaware) at 1363. w20x Halkyard v. Mathew (2001), 91 Alberta Law Reports (3d) 201 (Alberta Court of Appeal).
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w21x Albany Urology Clinics, P.C. v. Cleveland (2000), 528 South Eastern Reporter, 2nd 777 (Georgia Supreme Court). w22x Furrow BR. Must physicians reveal their wounds? Cambridge Quarterly of Healthcare Ethics 1996;5:204 – 213.