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The Rights of HIV-Positive Health Care Providers

By Catherine Hanssens, Esq.

Winter 1995

Two years after the Americans with Disabilities Act (ADA) went into effect, we are beginning to see results. Cases challenging discriminatory practices such as benefits caps on AIDS-related health care or denial of medical care to HIV-positive patients have begun to bear fruit. Even with this progress, however, the hysteria generated in 1991 by Kimberly Bergalis and the case of Dr. Acer, the Florida dentist suspected of infecting six of his patients with HIV, continues to haunt the halls of health care facilities around the country.

Health care workers have been labeled public health threats and have lost their livelihoods, as their employers learn of their HIV status and terminate or restrict their practices.

Health care administrators who make decisions to effectively end the working lives of qualified professionals demonstrate that those trained in the health sciences are not immune to the fear and ignorance that fuel discrimination. Unfortunately, courts often follow suit. Cases of discrimination against health care workers, particularly those like surgeons who perform "invasive procedures," have more often than not produced judicial analysis that veers far from the simple application of facts and law. Several courts have chosen instead a "no risk" standard under which a person with HIV can't win without proving that something that never has happened -- the transmission of HIV from a health care worker to a patient -- never will.

Thirteen years into the pandemic, there still is not one confirmed case of transmission from a surgeon or other health care worker to a patient, despite the flurry of attention and studies in this area spawned by the Acer case. Slowly, but increasingly, both hospital policies and court decisions are beginning to reflect the logic of these studies and the validity of well-informed public health opinion, imposing restrictions or liability only in case where exposure to HIV is demonstrated and the risk of transmission is likely. Nonetheless, discrimination and the insistence on the illusory standard of a "risk free" health care environment applied only to those with HIV has persisted.

The most recent example is the partial summary judgment granted to the hospital corporation defendants in Scoles v. Mercy Health Corporation of Southeastern Pennsylvania, the first case challenging practice restrictions on an HIV-positive orthopedic surgeon as discriminatory under the ADA as well as the Rehabilitation Act of 1973. While the case ultimately produced a pleasing settlement for the plaintiff, surgeon Paul Scoles, the trial court's decision reflects the intractable nature of the fear that has informed decisions affecting the rights of health care workers with HIV. In this case, Lambda represents the doctor whose surgical privileges were terminated, then reinstated on the condition that he notify patients of his HIV status prior to performing any procedures. The hospital defendants also removed Dr. Scoles from referral lists for two non-surgical clinics it operates and widely circulated information to colleagues, staff and others who made referrals to Dr. Scoles that he no longer was providing patient care. According to the defendants, this was all done in the name of patient safety. Curiously, the hospital's first action on hearing of Dr. Scoles' HIV infection was not to contact an infectious disease expert; rather they reached out to a lawyer and a public relations staffer!

Briefs in support of the partial summary judgment motions by both sides were filed in late September of 1993. Our motion was based on the undisputed assertion that the risk of HIV transmission from a surgeon to a patient is de minimis -- remote, extremely small. In seeking to show that something so unlikely to happen constitutes a direct threat to the safety of Dr. Scoles' patients, the hospital defendants focused instead on the consequences of transmission if it occurs: the patient's death from AIDS. This latter approach to the notion of "direct threat" runs counter to the weight of Supreme Court, relevant Third Circuit, and federal disability law. As we argued in our brief, it also effectively uses the fear of AIDS attacked by the ADA and the Rehabilitation Act as the measure of acceptable conduct under them.

We were preparing for trial when, on December 8, 1994, Pennsylvania Federal District Court Judge John McGirr Kelly issued a decision denying Dr. Scoles' motion and granting Mercy Health Corporation's. The judge conceded that it is unclear whether even the Acer case constituted HIV transmission from health care worker to patient, and further that transmission from surgeon to patient is unlikely and undocumented. But the mere existence of such a risk, in the judge's view, was the deciding factor. "Even if the risk is exceedingly low," he reasoned, "the risk of blood to blood contact between an orthopedic surgeon and patient during an invasive procedure is a real one."

Federal anti-discrimination caselaw and regulations overwhelmingly have relied on a synthesis of four factors in determining whether a person disabled by a communicable disease poses a "significant risk" sufficient to justify discrimination:

  1. the nature of the risk (how the disease is transmitted),
  2. the duration of the risk (how long the carrier is infectious),
  3. the severity of the risk (the potential harm to third parties), and
  4. the probability that the disease will be transmitted and cause varying degrees of harm.

In case after case, the significance of the other factors fade when the factor of probability that transmission will occur is low. Case after case has required an appreciable likelihood or reasonable probability of occurrence, even when the consequence of transmission can be fatal, to justify discrimination.

Federal regulations and numerous Congressional committee reports preceding the adoption of the ADA plainly repeat that the risk, regardless of the consequences of its occurrence, must be substantial, or have a high probability of occurring; that the risk of transmission must be significant, not speculative or remote.

Nonetheless, the district court narrowed its sights on two of the above factors -- the duration of the risk (which lasts as long as Dr. Scoles operates), and the severity (the possibility of the patient's death by AIDS) and concluded that even if the probability of Dr. Scoles transmitting HIV during surgery is low, Dr. Scoles' condition is a "significant risk," because of these two factors. In other words, two out of three of these go against Dr. Scoles -- as they would any plaintiff with HIV -- and therefore he is a direct threat, posing a significant risk of substantial harm, and justifying patient notification of his HIV status before undertaking an invasive procedure. Logic and two decades of disability discrimination law gave way to the fear-motivated conclusion that something only remotely likely to happen can constitute a direct threat if its consequences would be fatal, sending the message that there is a different standard in the health care setting when HIV is at issue, one in which the only acceptable level of risk is no risk at all. The decision is squarely at odds with the ever-increasing weight of consensus and with the way other illnesses of health care workers are dealt with.

Focusing on the HIV status of the surgeon does not, of course, address the risk to the patient from a medical provider's poor infection control, (the only documented HIV-related risk to the patient), let alone lack of experience or skill which pose genuine risks to patients and which are never explained prior to treatment from a surgeon performing, say, a heart transplant for the first time, or after a doctor has injured other patients through the same procedure. The law has never required doctors to disclose their prior alcohol or drug use, or their surgical "track record," in order to secure a patient's informed consent. In many if not all situations, forced HIV disclosure would end the surgeon's career, a truth clearly understood by the defendants in our case and ultimately experienced by Dr. Scoles, whose career has not recovered three years later. And when skilled practitioners like Dr. Scoles are driven from their professions after years and considerable funds have been invested in their education and training, patients lose.

It is interesting to compare the "risks" Dr. Scoles presents to other risks patients might face at hospitals. For example, during 1992, the year Mercy Health Corporation finalized its efforts to run Dr. Scoles out of its hospitals and his livelihood in the interest of "patient safety," one of its hospitals racked up some interesting statistics. According to the Pennsylvania Health Care Cost Containment Council, in its September, 1994 Hospital Effectiveness Report, which provides information on hospitals' records of effectiveness in treating particular medical conditions or surgical procedures, patients with cancer being treated for simple pneumonia and pleurisy or septicemia at Mercy Catholic Medical Center-Fitzgerald Mercy Hospital died at approximately twice the expected rate, as compared with 26 other hospitals in the comparative database. But Fitzgerald Mercy did not earn a statistically significant negative rating on treatments of these conditions alone. Overall, the Scoles defendants' hospital had the highest rate of deaths among patients with cancer of any other hospital evaluated in the database.

Of course, cancer patients entering the Mercy Health Corporation's facility are not warned of these statistics, the administration apparently believing them irrelevant to patient safety issues requiring a patient's "informed" consent. With this in mind, who faces the greater risk: defendant's cancer patients, or those seeking orthopedic surgery from an HIV-positive surgeon with an unblemished record?

Dr. Scoles has brought his personal legal battle to an end. Clearly, even with wayward court decisions in their favor, hospitals that adopt fear-based policies restricting the practices of their HIV-infected employees will find such discrimination costly. The tide has begun to shift and we will be back again and again, until courts will allow reason, law and undisputed evidence to have a more central role in the analysis, and end the trend in which fear sets a different standard for medical care providers.


Catherine Hanssens is the AIDS Project Director at Lambda Legal Defense and Education Fund, a national organization committed to achieving the full recognition of the civil rights of lesbians, gay men, and people with HIV/AIDS through impact litigation, education, and public policy work.

This article is an excerpt from the Winter 1995 edition of The Lambda Update, the tri-annual newsletter of Lambda Legal Defense and Education Fund.




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