Hostname: page-component-586b7cd67f-g8jcs Total loading time: 0 Render date: 2024-12-03T19:17:47.684Z Has data issue: false hasContentIssue false
  • English
  • Français

Access to Medical Care for HIV - Infected Individuals Under the Americans with Disabilities Act: A Duty to Treat

Published online by Cambridge University Press:  24 February 2021

Jill Cohen
Get access Rights & Permissions [Opens in a new window]

Abstract

In 1990, Congress enacted the Americans with Disabilities Act (ADA). This Note examines the legislative history of the ADA and uncovers Congress's intent to impose a duty on health care providers to treat people with disabilities unless an individual poses a “direct threat” to the health or safety of others. This Note posits that, with the passage of the ADA, Congress imposed a statutory duty on health care providers to give care to people infected with HIV who qualify under the statute. This Note concludes that while the “direct threat” exception may lessen the impact of the ADA, those infected with HIV should enjoy greater access to health care than ever before.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 18 , Issue 3 , 1992 , pp. 233 - 250
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1992

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 H.R. REP. NO. 485(11), 101st Cong., 2d Sess., at 48 (1990) (quoting testimony of Sandy Parrino, chairperson of National Council on Disability, before House Subcomm. on Select Education and Employment Opportunities and Senate Subcomm. on the Handicapped, S. Hrg. 100- 926, Sept. 27, 1988, at 15), reprinted in 1990 U.S.C.C.A.N. 303, 330-31.

2 HIV is a retrovirus that infects several types of cells. THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 288 (Robert Berkow et al. eds., 15th ed. 1987) [hereinafter MERCK MANUAL]. It is transmitted by an exchange of bodily fluids, e.g., semen, blood, saliva, or transfused blood products, and causes AIDS. THOMAS L. STEDMAN, STEDMAN's MEDICAL DICTIONARY 37-38 (25th ed. 1990). Infection with HIV impairs the body's immune system. See STANLEY JABLONSKI, JABLONSKI's DICTIONARY OF SYNDROMES & EPONYMIC DISEASES 10 (1991). Numerous diseases are regarded as indicative of AIDS, including opportunistic infections and non-Hodgkin's lymphoma.

Id. “The range of clinical features varies from an asymptomatic carrier state to overt AIDS with fatal opportunistic infections and Kaposi's sarcoma.” Id.

3 See generally Gostin, Lawrence O., The AIDS Litigation Project: A National Review of Court and Human Rights Commission Decisions, Part II: Discrimination, 263 JAMA 2086 (1990)Google Scholar (reviewing 149 cases of AIDS discrimination as described in complaints, briefs, settlements, and decisions).

4 Id. at 2087-89.

5 See id. at 2089.

6 Doe v. Centinela Hosp., No. CV 87-2514 PAR (PX), 1988 U.S. Dist. LEXIS 8401 (CD. Cal. June 30, 1988).

7 One New York dentist denied care to a woman whom he had treated for almost 13 years when he found out she had AIDS. Cheryl P. Weinstock, Public and Private Toll of Living with AIDS, N.Y. TIMES, Oct. 21, 1990, § 12 (Long Island), at 19. In another instance, a woman with AIDS made an appointment for a root canal at the State University Hospital at Stony Brook. Id. “They knew I had AIDS,” she stated. Id. “When I showed up, they refused to help me. Their explanation was that they had to drape the room for several hours after treating me, to prevent the spread of HIV infection. So they couldn't take care of me. They were very booked and said thousands of people needed help.” Id.

8 See, e.g., Elstein v. State Div. of Human Rights, 555 N.Y.S.2d 516 (N.Y. App. Div.), appeal denied, 564 N.E.2d 671 (N.Y. 1990). In this case, a person with AIDS filed a complaint with the New York State Division of Human Rights (SDHR), alleging that the orthopedic surgeon who had cared for him for several years had discriminated against him on the basis of disability by refusing to treat him. Id. at 516. The surgeon discontinued treatment upon finding out that the patient had AIDS. Id. The SDHR found probable cause to believe that the surgeon had engaged in an unlawful discriminatory practice, but the surgeon filed an action in court to prohibit the SDHR from holding a hearing on the matter. Id. at 516-17. On appeal, the court dismissed the suit because the SDHR had not yet held an administrative hearing to determine whether a doctor's office is a “place of public accommodation” under New York law. Id.

9 In the District of Columbia, a patient claimed that health care workers intentionally dropped a gurney after learning that the patient was infected with HIV. See Gostin, supra note 3, at 2089 n.97.

10 The New York City Commission on Human Rights reported that many clinics and hospitals in New York City were refusing to perform abortions on HIV-infected women. Elisabeth Rosenthal, Abortion Clinics Often Reject Patients with the AIDS Virus, N.Y. TIMES, Oct. 23, 1990, at Al. In a March 1990 study, investigators claiming to be patients telephoned 50 clinics that offer abortions. Id. In each case, the investigators were able to make appointments; however, 20 of the clinics cancelled when informed that the patient had tested positive for HIV. Id.

11 Americans with Disabilities Act of 1990; Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101-12213, 47 U.S.C. §§ 225, 611).

12 See 42 U.S.C.A. §§ 12111(2), (5), 12112(a) (West 1992).

13 Id. § 12132; see id. § 12131(1).

14 Id. § 12132.

15 47 U.S.C.A. §§ 225, 611 (West 1991).

16 42 U.S.C.A. § 12182(a) (West 1992).

17 Id. § 12181(7)(F) (listing “professional office of a health care provider, hospital, or other service establishment” among private entities considered “public accommodations” if their operations “affect commerce”); 28 C.F.R. § 36.104 (1992). In this Note, the term “health care provider” will refer to all hospitals and health care providers unless otherwise stated.

18 E.g., H.R. REP. No. 485(II), supra note 1, at 52, reprinted in 1990 U.S.C.C.A.N. at 334.

19 See, e.g., Buttersworth v. Swint, 186 S.E. 770, 772 (Ga. Ct. App. 1936) (to sustain a legal claim against a physician, plaintiff must show pre-existing contractual relationship); Davis v. Weiskopf, 439 N.E.2d 60, 64 (Ill. App. Ct. 1982) (courts “have considered that a physician's duty of care arises only upon the creation of a physician-patient relationship[] based upon contract”); Childs v. Weis, 440 S.W.2d 104, 107 (Tex. Ct. App. 1969) (“[i]t is unquestionably the law that the relationship of physician and patient is dependent upon contract, either express or implied … .”); see also Rothenberg, Karen H. et al., Comments, The AIDS Project: Creating a Public Health Policy — Rights and Obligations of Health Care Workers, 48 MD. L. REV. 93, 201 (1989)Google Scholar (“absent a consensual doctor-patient relationship a physician is not obligated to treat any particular patient.”).

20 George J. Annas, Legal Risks and Responsibilities of Physicians in the AIDS Epidemic, HASTINGS CENTER REP., Apr.-May 1988 (Special Supp.), at 26, 26.

21 Childs, 440 S.W.2d at 107; Tegtmeier, James W., Note, Ethics and AIDS: A Summary of the Law and a Critical Analysis of the Individual Physician's Ethical Duty to Treat, 16 AM. J.L. & MED. 249, 252 (1990).Google Scholar

22 Childs, 440 S.W.2d at 105-06.

23 Id. at 107.

24 Id.

25 See, e.g., Wilmington Gen. Hosp. v. Manlove, 174 A.2d 135, 138 (Del. 1961). Implied contract theory also provides certain exceptions to the “no duty” rule. Tegtmeier, supra note 21, at 253.

26 See Manlove, 174 A.2d at 140.

27 See, e.g., Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605, 610 (Ariz. 1984) (“licensed hospitals in this state are required to accept and render emergency care to all patients who present themselves in need of such care.”); see also Rothenberg et al., supra note 19, at 201; Tegtmeier, supra note 21, at 254-56.

28 Tegtmeier, supra note 21, at 254. General principles of tort law dictate that, regardless of whether one has a duty to help, anyone who undertakes to provide aid must continue to do so with reasonable care. GEORGE J. ANNAS ET AL., AMERICAN HEALTH LAW 58 (1990). Many courts have found that a hospital has undertaken to provide treatment. Id.

29 Annas, George J., Not Saints, But Healers: The Legal Duties of Health Care Professionals in the AIDS Epidemic, 78 AM. J. PUB. HEALTH 844, 845 (1988)CrossRefGoogle Scholar (although HIV is a “fatal, infectious disease, it is not currently accepted medical practice to refuse to treat such patients because of the risk they present to health care providers”); Rothenberg et al., supra note 19, at 201.

30 See, e.g., New Biloxi Hosp., Inc. v. Frazier, 146 So. 2d 882, 887 (Miss. 1962) (hospital that undertook care of bleeding man had duty to use reasonable care in protecting his life and wellbeing); O'Neill v. Montefiore Hosp., 202 N.Y.S.2d 436, 440 (N.Y. App. Div. 1960) (holding that physician who spoke to patient on telephone created contractual relationship with him; by helping patient, nurse in hospital can create duty to continue treatment); see also Tegtmeier, supra note 21, at 253-54.

31 See, e.g., Tegtmeier, supra note 21, at 252-54.

32 See, e.g., Ricks v. Budge, 64 P.2d 208, 211-12 (Utah 1937); see also Annas, supra note 20, at 27-28.

33 Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codified as amended at 29 U.S.C. § 794). The Civil Rights Act of 1964, Pub. L. No. 88-352, § 201, 78 Stat. 241, 243 (codified at 42 U.S.C. § 2000a), prohibits places of public accommodation from discriminating on the basis of race, color, religion, or national origin. By its terms, however, it does not offer specific protection to disabled persons. Therefore, suits based on disability have not relied on it.

34 29 U.S.C.A. § 794(a) (West Supp. 1992). This section also covers programs or activities conducted by federal executive agencies and the United States Postal Service. Id. “Program or activity” includes educational facilities, state and local government agencies and departments, certain jobs, and health care facilities. See id. § 794(b). In this Note, all pronouns that indicate one gender should be read to include the other gender as well.

35 E.g., Doe v. Centinela Hosp., No. CV 87-2514 PAR (PX), 1988 U.S. Dist. LEXIS 8401, at *12 (CD. Cal.June 30, 1988); see also Laura S. Gasarch, Discrimination Against the Disabled, in AIDS AND THE LAW 199, 202-09 (Wiley Law Publications editorial staff eds., 1992).

36 29 U.S.C.A. § 706(8)(B) (West Supp. 1992). In the legislative history of the ADA, Congress notes that, in contrast to the Rehabilitation Act's use of the term “handicap,” the term “disability” was used because it was perceived to have fewer negative connotations. See H.R. REP. No. 485(II), supra note 1, at 50-51, reprinted in 1990 U.S.C.C.A.N. at 332-33.

37 See, e.g., Centinela, 1988 U.S. Dist. LEXIS 8401, at *22, *32 (finding HIV infection to be a disability in context of admission to drug and alcohol rehabilitation program); Local 1812, Am. Fed'n of Gov't Employees v. United States Dep't of State, 662 F. Supp. 50, 54 (D.D.C. 1987) (finding HIV infection to be a disability in employment setting); see also Gostin, supra note 3, at 2086 (all stages of HIV disease, including AIDS, AIDS-related complex (ARC), and asymptomatic infection are disabilities protected under the Rehabilitation Act). For a discussion of cases holding HIV infection to be a handicap within the context of § 504, see Neugarten, Joel, Note, The Americans with Disabilities Act: Magic Bullet or Band-Aid for Patients and Health Care Workers Infected with the Human Immunodeficiency Virus?, 57 BROOK. L. REV. 1277, 1311-13 (1992).Google Scholar

38 See 29 U.S.C.A. § 794(a) (West Supp. 1992).

39 Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979) (holding woman with severe hearing disability not otherwise qualified for admission to nursing program because of safety risks she presented); see Alexander v. Choate, 469 U.S. 287, 301 (1984) (a benefit that a federally funded program provides must not be defined so that it effectively denies otherwise qualified handicapped individuals meaningful access); Gasarch, supra note 35, at 205 (the person “must be physically able to perform the essential functions of the activity with reasonable accommodation”).

40 Centinela, 1988 U.S. Dist. LEXIS 8401, at *3.

41 Centinela, 1988 U.S. Dist. LEXIS 8401, at *22-23. The court must also determine whether the program could “reasonably accommodate” the person. School Bd. v. Arline, 480 U.S. 273, 288 (1987). See, e.g., 45 C.F.R. § 84.3(k)(4) (1991) (Department of Health and Human Services Regulations requiring a handicapped person to meet “essential eligibility requirements for the receipt of such services”).

42 School Bd. v. Arline, 480 U.S. 273, 287-88 (1987) (remanding case to determine whether teacher with tuberculosis was “otherwise qualified”); see also Centinela, 1988 U.S. Dist. LEXIS 8401, at *28 (citing Arline).

43 Centinela, 1988 U.S. Dist. LEXIS 8401, at *28.

44 Id. at *28-30.

45 Id. at *27-29.

46 Id. at *29-30.

47 Kim Murphy, Hospital to Halt AIDS Test for Care Program, L.A. TIMES, Jan. 11, 1989, Pt. 2 (Metro), at 1. Under the terms of the settlement, Centinela Hospital agreed to stop requiring HIV negativity for admission to the program, to take precautions under the assumption that all patients might be contagious, and to counsel all patients about the risks of unsafe sex or sharing intravenous needles. Id. at 1, 8.

48 29 U.S.C.A. § 794(a) (West Supp. 1992); see Centinela, 1988 U.S. Dist. LEXIS 8401, at *12, *31; Gasarch, supra note 35, at 208.

49 See Centinela, 1988 U.S. Dist. LEXIS 8401, at *27-30.

50 29 U.S.C.A. § 794(a) (West Supp. 1992); see Gasarch, supra note 35, at 208-09. In contrast, the U.S. Department of Justice has estimated that the ADA covers 3.8 million “private enterprises” that control more than five million “places of public accommodation.” BUREAU OF NATIONAL AFFAIRS, INC., AMERICANS WITH DISABILITIES ACT MANUAL 30:0001 (1992).

51 See infra notes 69, 70, 96-99 and accompanying text.

52 H.R. REP. No. 485(II), supra note 1, at 105-06, reprinted in 1990 U.S.C.C.A.N. at 388-89. The report includes the example of a physician who specializes in treating burn victims. H.R. REP. No. 485(II), supra, at 106, reprinted in 1990 U.S.C.C.A.N. at 389. Although the physician could not refuse to treat the burns of a deaf person because of the person's deafness, she “is not required to accept the deaf individual as a patient” if the person does not have any burns. Id.

53 42 U.S.C.A. § 12182(b)(3) (West 1992).

54 Id. § 12182(a), (b)(1)(A)(i).

55 Id. § 12182(b)(2)(A)(i).

56 H.R. REP. No. 485(III), 101st Cong., 2d Sess., at 62 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 485.

57 H.R. REP. No. 485(III), supra note 56, at 58, reprinted in 1990 U.S.C.C.A.N. at 481.

58 42 U.S.C.A. § 12101(b)(1) (West 1992).

59 Id. § 12101(a)(4).

60 Id. § 12182(a).

61 Id. § 12181(7)(F); see Neugarten, supra note 37, at 1314-15; see abo supra note 17.

62 H.R. REP. NO. 485(11), supra note 1, at 35 (quoting statement of Robert Burgdorf, Jr., District of Columbia School of Law, testifying on behalf of the National Easter Seal Society), reprinted in 1990 U.S.C.C.A.N. at 317.

63 42 U.S.C.A. § 12182(b)(1)(A)(i) (West 1992).

64 Id. § 12182(b)(3).

65 Two other general provisions ensure that people with disabilities receive nondiscriminatory treatment from public accommodations. First, the ADA's “participation in unequal benefit” provision prohibits covered entities from affording people with disabilities, on the basis of disability, “the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” Id. § 12182(b)(1)(A)(ii). Second, the “separate benefit” provision prohibits covered entities from providing people with disabilities, on the basis of disability, a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other people, unless such action is required to provide such a benefit “that is as effective as that provided to others.” Id. § 12182(b)(1)(A)(iii).

The legislative history and the language of the ADA establish that Congress intended to create a duty to treat people with disabilities. Nevertheless, one could argue that, by compelling HCPs to treat disabled people and not everyone, disabled people receive a “separate” or “unequal” benefit from the HCP. While the ADA imposes a duty on HCPs to treat disabled patients, an HCP can still refuse to treat nondisabled persons for any reason. Under this argument, greater access to treatment for persons with disabilities could violate either the “participation in unequal benefit” or the “separate benefit” provisions of the ADA. In the statute and legislative history, however, the meaning of the terms “separate” and “unequal” treatment remains ambiguous. See, e.g., H.R. REP. No. 485(III), supra note 56, at 56, reprinted in 1990 U.S.C.C.A.N. at 479. Therefore, because providing protection against discrimination for people with disabilities constitutes the general purpose of the ADA, Congress would not have intended to prohibit disabled persons from receiving “better” treatment than nondisabled persons.

66 See 42 U.S.C.A. § 12182(b)(2)(A)(i) (West 1992).

67 Id. § 12182(b)(2)(A)(ii).

68 Id. § 12182(b)(3).

69 Id.

70 Id.; see 28 C.F.R. §§ 36.208, 36.302, 36.303 (1992).

71 29 U.S.C.A. § 794(a) (West Supp. 1992) (emphasis added).

72 42 U.S.C.A. § 12182(b)(1)(A)(i) (West 1992).

73 29 U.S.C.A. § 794(a) (West Supp. 1992); see also Gasarch, supra note 35, at 208.

74 42 U.S.C.A. § 12182(b)(1)(A)(i) (West 1992); see also Gasarch, supra note 35, at 213. The ADA requires only that the person's disability be a factor in the decision, as with the classifications protected under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Id.

75 See 42 U.S.C.A. § 12101 (West 1992); e.g., H.R. REP. No. 485(II), supra note 1, at 50, reprinted in 1990 U.S.C.C.A.N. at 332.

76 42 U.S.C.A. § 12102(2) (West 1992).

77 See id. § 12182; see also Gasarch, supra note 35, at 212.

78 The Rehabilitation Act defines an “otherwise qualified” person as “one who is able to meet all of a program's requirements in spite of his handicap.” See supra note 39 and accompanying text. There is no indication that Congress intended to change this formulation under the ADA; therefore, it is reasonable to read this provision into the ADA.

79 42 U.S.C.A. § 12182(b)(3) (West 1992).

80 See id. § 12182(b)(2)(A)(i); H.R. REP. No. 485(III), supra note 56, at 58, reprinted in 1990 U.S.C.C.A.N. at 481.

81 42 U.S.C.A. § 12102(2) (West 1992).

82 See supra note 36.

83 42 U.S.C.A. § 12102(2) (West 1992). The major difference between the two is the use of the term “disability” instead of “handicap.” This represents an effort by Congress to use up-todate, currently accepted terminology. H.R. REP. No. 485(II), supra note 1, at 50, reprinted in 1990 U.S.C.C.A.N. at 332.

84 H.R. REP. No. 485(II), supra note 1, at 52, reprinted in 1990 U.S.C.C.A.N. at 334 (citing U.S. Dep't of Justice, “Application of Section 504 of the Rehabilitation Act to HIV-infected Individuals,” Sept. 27, 1988, at 9-11).

85 28 C.F.R. § 36.104 (1992). The other conditions explicitly mentioned are orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, tuberculosis, drug addiction and alcoholism. Id.

86 42 U.S.C.A. § 12182(b)(1)(A)(i) (West 1992).

87 Id. § 12182(b)(1)(A)(ii).

88 Id. § 12182(b)(1)(A)(iii).

89 Id. § 12182(b)(2)(A)(i).

90 Id. § 12182(b)(2)(A)(ii).

91 The legislative history states that:

[t]he statutory requirement that a person with a disability must be able to meet the “necessary eligibility criteria” of a public accommodation reflects the longstanding principle under section 504 of the Rehabilitation Act that, to the extent the manifestations of a person's disability prevent that person from meeting the basic eligibility requirements of a public accommodation — for example, by causing substantial interference with the operation of the public accommodation — that manifestation of the person's disability may be taken into account by the operator of the public accommodation in denying services to the person with the disability.

H.R. REP. No. 485(IV), 101st Cong., 2d Sess., at 58 (1990), reprinted in 1990 U.S.C.C.A.N. 512, 547.

92 Id.

93 Id.

94 A reasonable modification in the example of the bedridden, HIV-infected individual would be one that would allow that person to participate in individualized treatment for a minimal amount of time while he recuperates from pneumonia.

95 42 U.S.C.A. § 12182(b)(3) (West 1992).

96 Id.

97 Id.

98 28 C.F.R. § 36.208(c) (1992).

99 Id. This regulation codifies the test first articulated in School Bd. v. Arline, 480 U.S. 273, 287-88 (1987).

100 Doe v. Centinela Hosp., No. CV 87-2514 PAR (PX), 1988 U.S. Dist. LEXIS 8401, at *28 (CD. Cal. June 30, 1988) (quoting Chalk v. United States Dist. Court, 840 F.2d 701, 705 (9th Cir. 1988)).

101 Abe B. Macher, HIV Disease/AIDS: Medical Background, in AIDS AND THE LAW, supra note 35, at 4. It has been estimated that approximately one million persons in the United States are infected with HIV. Id. at 16; Neugarten, supra note 37, at 1277 (citing Centers for Disease Control, Estimates of HIV Prevalence and Projected AIDS Cases: Summary of a Workshop, October 31 - November 1, 1989, 39 MORBIDITY & MORTALITY WKLY. REP. 110, 110 (1990)Google Scholar). It is expected that at least 30 to 40 million people worldwide will be infected with HIV by the end of this decade. Castro, Kenneth G. et al., Perspectives on HIV/AIDS Epidemiology and Prevention from the Eighth International Conference on AIDS, 82 AM. J. PUB. HEALTH 1465, 1468 (1992).CrossRefGoogle Scholar

102 Centers for Disease Control, HIV/AIDS Surveillance, Apr. 1992, at 13 (reporting 139,269 deaths among 214,609 people diagnosed with AIDS since before 1981 through March 1992). The National Commission on AIDS has estimated that the number of reported cases represents only a small percentage of the total number of people infected with HIV. See NATIONAL COMMISSION ON ACQUIRED IMMUNE DEFICIENCY SYNDROME, AMERICA LIVINC WITH AIDS 12 (1991). See generally Gerald M. Oppenheimer, Causes, Cases, and Cohorts: The Role of Epidemiology in the Historical Construction of AIDS, in AIDS: THE MAKING OF A CHRONIC DISEASE (Elizabeth Fee & Daniel M. Fox eds., 1992).

103 The incubation period averages eight years and, during that time, the infected individual may be asymptomatic. Neugarten, supra note 37, at 1291 n.61 (citing Berkelman, Ruth L. et al., Epidemiology of Human Immunodeficiency Virus Infection and Acquired Immunodeficiency Syndrome, 86 AM. J. MED. 761, 761 (1989)CrossRefGoogle Scholar). For a detailed assessment of the risk of transmission of HIV infection to the physician and the patient, see id., at 1291-1303.

104 Macher, supra note 101, at 4-5; Centers for Disease Control, Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 MORBIDITY & MORTALITY WKLY. REP., Aug. 21, 1987 (Supp. No. 2S), at 5S [hereinafter CDC, Recommendations].

105 Goldsmith, Marsha F., Even “In Perspective,” HIV Specter Haunts Health Care Workers Most, 263 JAMA 2413, 2417 (1990)CrossRefGoogle Scholar; Wong, Edward S. et al., Are Universal Precautions Effective in Reducing the Number of Occupational Exposures Among Health Care Workers ? A Prospective Study of Physicians on a Medical Service, 265 JAMA 1123, 1123 (1991).CrossRefGoogle Scholar

106 Goldsmith, supra note 105, at 2417 (citing the figures of David Henderson of the National Institutes of Health and the Centers for Disease Control).

107 See Fahey, Barbara J. & Henderson, David K., Minimizing Risks for Occupational Blood-borne Infections, 264 JAMA 1189, 1189 (1990)CrossRefGoogle Scholar (approximately 0.3% and 0.4%); Post, Steven G. & Botkin, Jeffrey R., AIDS and the Medical Student: The Risk of Contagion and the Duty to Treat, 268 JAMA 1189, 1192 (1992)CrossRefGoogle Scholar (“Studies indicate that the risk of seroconversion from mucous membrane exposure or parenteral inoculation of HIV-infected blood is approximately 0.4%.”).

108 See, e.g., Centers for Disease Control, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public-Safety Workers, 38 MORBIDITY & MORTALITY WKLY. REP., June 23, 1989 (No. S-6) [hereinafter CDC, HIV and HBV Guidelines]; PRESIDENTIAL COMMISSION ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC, REPORT OF THE PRESIDENTIAL COMMISSION ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC 31(1988) [hereinafter PRESIDENTIAL COMMISSION]; see also Fahey & Henderson, supra note 107, at 1189; Occupational Exposure to Bloodborne Pathogens, 56 Fed. Reg. 64003, 64028 (1991) (estimated annual risk for HBV infection among health care workers exposed to blood or other potentially infectious material is between 3.47 and 4.21 per 1000 exposed workers who lack immunity).

Hepatitis B is caused by the hepatitis B virus (HBV). MERCK MANUAL, supra note 2, at 857-58. The virus “is associated with a wide spectrum of liver disease, from a subclinical carrier state to acute hepatitis, chronic hepatitis, cirrhosis, and hepatocellular carcinoma.” Id. at 859. HBV is frequently transmitted parenterally, through transfusion of blood and blood products, or through needles that drug abusers share. Id. at 860. The virus may also be spread between heterosexual and male homosexual partners as well as in closed institutions. Id. at 861. It is usually not fatal. Id. at 862.

109 “By some means other than through the gastrointestinal tract.” STEDMAN, supra note 2, 1139-40 (25th ed. 1990).

110 Fahey & Henderson, supra note 107, at 1189; see also CDC, HIV and HBV Guidelines, supra note 108, at 5 (risk of HBV infection from needlestick exposure to persons lacking prior hepatitis B vaccination or post-exposure prophylaxis is 6% to 30%).

111 CDC, HIV and HBV Guidelines, supra note 108, at 5.

112 See Neugarten, supra note 37, at 1283 (stating that the ADA is expected to reduce the shortage of health care professionals willing to treat people infected with HIV by prohibiting discriminatory exclusion of HIV-infected patients from health care services). For a discussion of the Arline test, see supra notes 41 and 42 and accompanying text.

113 Emanuel, Ezekiel J., Do Physicians Have an Obligation to Treat Patients with AIDS?, 318 NEW ENG. J. MED. 1686, 1688 (1988)CrossRefGoogle Scholar; see also Neugarten, supra note 37, at 1296-98.

114 Emanuel, supra note 113, at 1688.

115 Id.; see Lo, Bernard & Steinbrook, Robert, Health Care Workers Infected with the Human Immunodeficiency Virus, 267 JAMA 1100, 1100 (1992)CrossRefGoogle Scholar (discussing CDC estimates that risk of transmission of HIV to health care workers through percutaneous exposure to the blood of an HIVpositive patient is about one in 300); see also Centers for Disease Control, Recommendations for Preventing Transmission of Human Immunodeficiency Vims and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures, 40 MORBIDITY & MORTALITY WKLY. REP., July 21, 1991 (No. RR-8), at 4 [hereinafter CDC, Recommendations for Exposure-Prone Procedures] (range of percutaneous injuries among surgical specialties was 8% to 57%).

116 The CDC recommend that the HCP assuriie all patients are infectious for HIV and other blood-borne pathogens. CDC, Recommendations, supra note 104, at 5S, 6S, 7S, 8S; Centers for Disease Control, Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus, and Other Bloodbome Pathogens in Health-Care Settings, 37 MORBIDITY & MORTALITY WKLY. REP. 377, 377-78 (1988)Google Scholar [hereinafter CDC, Update]. The CDC advocate the use of gloves when touching mucous membranes and nonintact skin of all patients. CDC, Recommendations, supra note 104, at 6S-7S; CDC, Update, supra, at 379-81. The CDC also recommend the use of masks, eye coverings and other appropriate barrier devices. CDC, Recommendations, supra note 104, at 6S, 7S, 9S; CDC, Update, supra, at 380.

117 Fahey & Henderson, supra note 107, at 1189 (“A number of strategies for health care worker behavior modification may help decrease the risks for transmission … . In one study, more than 30% of occupational needle stick injuries might have been prevented if universal precautions recommendations had been followed.”); Wong et al., supra note 105, at 1123-28 (finding that universal precautions advocated by the CDC are effective in protecting physicians from occupational exposures to blood and other bodily fluids).

118 The CDC defines an invasive procedure as follows:

surgical entry into tissues, cavities, or organs or repair of major traumatic injuries 1) in an operating or delivery room, emergency department, or outpatient setting, including both physicians’ and dentists’ offices; 2) cardiac catheterization and angiographic procedures; 3) a vaginal or cesarean delivery or other invasive obstetric procedure during which bleeding may occur; or 4) the manipulation, cutting, or removal of any oral or perioral tissues, including tooth structure, during which bleeding occurs or the potential for bleeding exists.

CDC, Recommendations, supra note 104, at 6S-7S.

119 See Hermann, Richard C., Risks of HIV Exposure to Medical Students and Health Care Personnel, 264 JAMA 1187, 1187 (1990).CrossRefGoogle Scholar A recent study of results from the National Resident Matching Program suggests that medical students may have ranked programs in geographic locations with higher concentrations of AIDS patients lower on their lists. Ness, Roberta et al., Likelihood of Contact with AIDS Patients as a Factor in Medical Students’ Residency Selections, 64 ACAD. MED. 588 (1989).Google Scholar Other studies have suggested that HIV and AIDS may be contributing to the national decline of students entering internal medicine. See, e.g., Cooke, Molly & Sande, Merle A., The HIV Epidemic and Training in Internal Medicine, 321 NEW ENG. J. MED. 1334, 1335 (1989).CrossRefGoogle Scholar