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State Regulations and the HIV-Positive Health Care Professional: A Response to a Problem that Does Not Exist

Published online by Cambridge University Press:  24 February 2021

Susan L. DiMaggio
Susan L. DiMaggio*
Affiliation:
Quinnipiac College; Boston University School of Law
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Abstract

An announcement in July 1990 concerning the possible transmission of the Human Immunodeficiency Virus from an HIV-positive health care professional to a patient launched a public outcry for patient protection from acquiring HIV from health care professionals. As a result of numerous debates, Congress issued a mandate requiring the states to adopt the Centers for Disease Control and Prevention's guidelines concerning HIV-positive health care professionals or an equivalent policy. This Note explores the regulations and guidelines established by various states in response to this mandate. The author concludes that policies requiring adherence to universal precautions within the health care setting, and not mandatory testing of health care professionals or mandatory disclosure of their HIV status, are best for protecting public health.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 19 , Issue 4 , 1993 , pp. 497 - 522
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1993

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References

1 National Commission ON AIDS, Preventing HIV Transmission in Health Care Settings 3 (1992) [hereinafter National Commission].

2 HIV is the retrovirus that causes AIDS. Patricia Fultz, The Biology of Human Immunodeficiency Viruses, in THE EPIDEMIOLOGY of AIDS 3 (Richard A. Kaslow & Donald P. Francis eds., 1989). Although it affects primarily the immune system, HIV can also infect cells in the nervous system, colon and blood vessels. American College Health ASS'N, HIV Infection and AIDS (1990). At least two latency periods have been identified in the progression of HIV. The first may be referred to as the “window” period, which is the period of time between infection with HIV and when an individual tests positive for the HIV antibody. See National Commission, supra note 1, at 47. In approximately 95% of cases, HIV antibodies will be detectable within six months of transmission. C. Robert Horsburgh, Jr. et al., Duration of Human Immunodeficiency Virus Infection Before Detection of Antibody, Lancet, Sept. 16, 1989, at 637. The second latency period is the time between when an individual tests positive for HIV and when the first symptoms of AIDS appear. The mean latency period between infection with HIV and the onset of AIDS is five years. Estate of Behringer v. Medical Ctr. at Princeton, 592 A.2d 1251, 1267 (N.J. Super. Ct. Law Div. 1991). The CDC changed its name to the Centers for Disease Control and Prevention on October 27, 1992. Telephone interview with Sharon Middlebrook, Public Inquiry, CDC (April 15, 1994).

3 Health Care Professionals (HCPs) are “persons, including students and trainees, whose activities involve contact with patients or with blood or other body fluids from patients in a health care setting.” Centers for Disease Control, Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 Morbidity & Mortality Wkly. Rep. 3 (Supp. 2S 1987) [hereinafter Recommendations 1987].

4 Centers for Disease Control, Possible Transmission of Human Immunodeficiency Virus to a Patient During an Invasive Dental Procedure, 39 Morbidity & Mortality Wkly. Rep. 489 (1990). The factors which contribute to the belief that HIV was transmitted to Ms. Bergalis during the dental procedure include: an invasive procedure was performed on her by a dentist with AIDS; she did not exhibit any behavioral or other risk factors, such as intravenous-drug use, blood transfusions or sexual behavior; and the viral DNA sequences from her and Dr. Acer were closely related. Id.

5 Centers for Disease Control, Update: Transmission of HIV Infection During an Invasive Dental Procedure-Florida, 40 Morbidity & Mortality Wkly. Rep. 377-81 (1991).

6 HIV Linked to Dentist, Wash. Post, May 7, 1993, at A4; Centers for Disease Control, Update: Investigations of Persons Treated by HIV-infected Health-Care Workers —United States, 42 Morbidity & Mortality Wkly. Rep. 329-37 (1993).

7 Universal precautions are “measures taken in health care settings to prevent transmission of HIV.” National Commission, supra note 1, at 47. Universal precautions require that the blood and other specified body fluids of all patients be handled as if they contain bloodborne pathogens. Recommendations 1987, supra note 3, at 5. Examples of universal precautions include the “appropriate use of hand washing, protective barriers, and care in the use and disposal of needles and other sharp instruments.” Centers for Disease Control, U.S. Dep't Health & Human Servs., Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus TO Patients During Exposure-Prone Invasive Procedures (1991) [hereinafter Recommendations 1991,].

8 Chiesielski, C. et al., Transmission of Human Immunodeficiency Virus in a Dental Practice, 116 Annals Internal Med. 798 (1992)Google Scholar.

9 Recommendations 1991, supra note 7, at 1. In 1983 the CDC published recommendations calling for blood and body fluid precautions when a patient was known or suspected to be infected with bloodborne pathogens. J.S. Garner & B.P. Simmons, Guideline for Isolation Precautions in Hospitals, 4 Infect. Control 245 (Supp. 1983). Four years later, the CDC published guidelines to prevent the transmission of HIV in health-care settings. Recommendations 1987, supra note 3. These guidelines consolidated and updated the CDC's previous recommendations, emphasized the need for HCPs to treat all patients as potentially infected with HIV and advocated adherence to infection-control precautions to minimize the risk of exposure to blood and body fluids. Id. at 3. In response to requests for clarification of “1) body fluids to which universal precautions apply, 2) use of protective barriers, 3) use of gloves for phlebotomy, 4) selection of gloves for use while observing universal precautions, and 5) need for making changes in waste management programs as a result of adopting universal precautions,” the CDC supplemented its 1987 publication the following year. 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 (1988).

10 H.R. 2788, 102d Cong., 1st Sess. (1991) [hereinafter H.R. 2788]; S. 9468, 102d Cong., 1st Sess. (1991) [hereinafter S. 9468].

11 Treasury, Postal Service, and General Government Appropriations Act, Pub. L. No. 102- 141, 105 Stat. 834, 876-77 (1991) [hereinafter Treasury].

12 Seropositive is defined as “[c]ontaining antibody of a specific type in serum; used to indicate presence of immunological evidence of a specific infection (e.g. Lyme disease, syphilis) or presence of a diagnostically useful antibody (e.g. rheumatoid arthritis with rheumatoid factor). Stedman's Medical Dictionary 1408 (25th ed. 1990).

13 National Commission, supra note 1, at 2-3.

14 Mich. Dep't Pub. Health, Michigan Recommendations on HBV-Infected and/OR HIV-Infected Health Care Workers (1992) [hereinafter Michigan].

15 Centers for Disease Control, Update: Investigations of Patients Who Have Been Treated by HIV-infected Health-Care Workers, 41 Morbidity & Mortality Wkly. Rep. 344, 345 (1992) [hereinafter Update].

16 Id. In publishing its update of possible instances of HIV-transmission from HCPs to patients, the CDC summarized findings from other published studies of patients treated by HIVpositive HCPs and information from ongoing investigations reported to the CDC. Id.

17 Id. Among 10,270 patients from 23 of the 32 HCPs, none tested seropositive for HIV. Of the 5,525 tested patients of the remaining nine HCPs, 84 tested HIV-positive. However, followup studies completed on 47 of the 84 patients indicate that established risk factors prior to treatment account for the seropositive test results. Although investigations of the remaining 37 patients are still in progress, the majority of investigations also indicate the presence of established risk factors. Id. at 345-46.

18 An invasive procedure is defined as “surgical entry into tissues, cavities, or organs or repair of major traumatic injuries associated with any of the following: 1) an operating or delivery room, emergency department, or outpatient setting, including both physicians’ and dentists’ offices; 2) cardiac catherization 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.” Recommendations 1991, supra note 7, at 7.

19 Id. at 3.

20 Percutaneous is defined as “[d]iadermic; transcutaneous; transdermic; denoting the passage of substances through unbroken skin, as in absorption by inunction.” Stedman's Medical Dictionary 1162 (25th ed. 1990). An example of a percutaneous exposure is when a patient is exposed to an HCP's blood when the sharp object causing the injury to the HCP recontacts the patient's open wound. Recommendations 1991, supra note 7, at 3.

21 Recommendations 1991, supra note 7, at 2.

22 National Commission, supra note 1, at 11.

23 Michigan, supra note 14, at 2 (emphasis omitted).

24 Id. at 2-3.

25 N.D. State Dep't of Health and Consolidated Labs., Guidelines Regarding HIV- and HBV-Infected Health Care Workers (undated) [hereinafter North Dakota].

26 See Michigan, supra note 14, at 2-3.

27 Lawrence Gostin, HIV-infected Physicians and the Practice of Seriously Invasive Procedures, Hastings Center REP., Jan./Feb. 1989, at 33.

28 National Commission, supra note 1, at 11.

29 Gostin, supra note 27, at 33 (citing Friedland, Gerald H. & Klein, Robert S., Transmission of the Human Immunodeficiency Virus, 317 New. Eng. J. Med. 1125 (1987)Google Scholar).

30 National Commission, supra note 1, at 12.

31 Daniels, Norman, HIV-infected Professionals, Patient Rights, and the ‘Switching Dilemma', 267 JAMA 1368 (1992)Google Scholar.

32 Id. (citing Wilson, R., Analyzing the Daily Risks of Life, 81 Tech. Rev. 41 (1979)Google Scholar).

33 Bloodborne pathogen is defined as pathogenic microorganisms that are present in human blood and can cause disease in humans including, but not limited to, HIV and HBV. Bloodborne Pathogens Standard, 29 C.F.R. 1910.1030 (1993).

34 Id. § 1910.1030(b) (1993).

35 Id. § 1910.1030(c)(l)-(2).

36 Id. § 1910.1030(d)(1).

37 “Engineering Controls means controls … that isolate or remove the bloodborne pathogens hazard from the workplace.” Id. § 1910.1030(b).

38 “Work Practice Controls means controls that reduce the likelihood of exposure by altering the manner in which a task is performed … .” Id. § 1910.1030(b)(3).

39 “Personal protective equipment is specialized clothing or equipment worn by an employee for protection against a hazard.” Id.

40 The Costly Compliance of Pathogen Standards, the Greater Baton Rouge Bus. Rep., June 30, 1992, at 32 [hereinafter Costly Compliance].

41 L. Wayne Hicks, New Health Rules Protect Workers; Consumers to Pay, Denv. Bus. J., Mar. 6, 1992, at 1.

42 Id.

43 Id.

44 Id. (quoting George Beale, President, Medical Systems Inc.).

45 Costly Compliance, supra note 40.

46 Id.

47 29 C.F.R. § 1910.030(d)(3)(i).

48 Costly Compliance, supra note 40.

49 29 C.F.R. § 1910.1030(g)(2)(i)-(vii). Occupational exposure is the “reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of an employee's duties.” Id. § 1910.1030(b).

50 Id. § 1910.1030(h)(l)(iv).

51 Recommendations 1987, supra note 3.

52 Lo, Bernard & Steinbrook, Robert, Health Care Workers Infected with the Human Immunodeficiency Virus; The Next Steps, 267 JAMA 1100 (1992)Google Scholar.

53 Recommendations 1991, supra note 7, at 1.

54 Id. at 4.

55 Id.

56 Id. The experts who comprise the review panel “might include all of the following: a) the [HCPs] personal physician(s), b) an infectious disease specialist with expertise in the epidemiology of HIV … transmission, c) a health professional with expertise in the procedures performed by the [HCP], and d) state or local public health official(s).” Id.

57 Characteristics of exposure-prone procedures include digital palpitation of a needle tip in a body cavity or the simultaneous presence of the HCP's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site. Id. at 3. The recommendations formulated by the CDC explicitly require that “[e]xposure-prone procedures should be identified by medical/surgical/dental organizations and institutions at which the procedures are performed.” Id. at 4.

58 Lo & Steinbrook, supra note 52, at 1102.

59 CDC Reported to Have Dropped its Proposal to List Exposure-Prone Surgical Procedures, AIDS Pol'y & L., Nov. 28, 1991, at 1, 8.

60 See California Medical Groups Reject CDC Request for Lists, AIDS Pol'y & L., Oct. 31, 1991, at 2.

61 PHS, After Nearly a Year of Controversy, Won't Revise Infected Worker Guidelines, AIDS Pol'y & L., June 26, 1992, at 1.

62 H.R. 2788, supra note 10. Section 2648A of the Public Health Services Act proposed by H.R. 2788 is “[t]o amend Title XXVI of the Public Health Service Act to provide for the establishment of protections against certain communicable diseases for both health care providers and the patients of such providers, and to provide for certain forms of assistance for such providers and patients.” Id.

63 Id. (proposed amendment to Public Health Service Act, § 2648A (a)(l)-(2)).

64 Id. (proposed amendment to Public Health Service Act, § 2648A(b)(l)(A)-(B)).

65 Id. (proposed amendment to Public Health Services Act, §§ 2648A(b)(2)(A)(i)-(iii)).

66 Kimberly Bergalis Patient and Health Provider Protection Act of 1991: Hearing on H.R. 2788 Before the Subcomm. on Health and the Environment of the House Energy and Commerce Comm., 102d Cong., 1st Sess. 128 (1991) [hereinafter Bergalis].

67 Bergalis Gives Emotional Plea Before Congressional Subcommittee, AIDS Pol'y & L., Oct. 2, 1991 at 5.

68 Bergalis, supra note 66 (statement of Kimberly Bergalis).

69 Id. at 128-83.

70 Id. A negative test does not guarantee that the individual is not infected with HIV. There is a window period of approximately six to eight months between the time of acquiring HIV and the appearance of measurable antibodies during which an infected individual will test negative. National Commission, supra note 1, at 22, 47. Furthermore, there is a possibility of a false positive test. Under ideal testing conditions, one out of every 40,000 to 50,000 tests is falsely read as positive. Michigan, supra note 14, at 4.

71 Bergalis, supra note 66, at 138 (statement of Barbara Fassbinder).

72 Id.

73 S. 9468, supra note 10.

74 Id.

75 In Brief. . ., AIDS Pol'y & L” Oct. 16, 1991, at 6.

76 Treasury, supra note 11, at 876.

77 Public Health Service Act, 42 U.S.C.A. § 201 (1988). Pursuant to the Public Health Service Act, the Secretary of Health and Human Services is authorized to make grants to states which have submitted plans, subject to approval by the Secretary, for comprehensive state health planning in order to enable states to plan for their current and future health needs. Id. § 246.

78 Treasury, supra note 11, at 876. State health departments, not the federal agency, regulate health care, but the Department of Health and Human Services provides federal public health funds and therefore can impose financial penalties on states that do not comply with its regulations. Lawrence K. Altman, U.S. to Let States Set Rules on AIDS-Infected Health Workers, N.Y. Times, June 16, 1992, at C7.

79 In Brief. . . , AIDS Pol'y & L., Nov. 27, 1992, at 7. As of March 21, 1994, 47 states and U.S. territories had submitted guidelines equivalent to the CDC's, 10 had adopted the CDC guidelines, and two had requested and received an additional extension. Telephone interview with Gary Conrad, Chief of the HIV Planning Services Office, Office of Associate Director for HIV/ AIDS, Centers for Disease Control and Prevention (Mar. 21, 1994).

80 National Commission, supra note 1, at ,10; Mike McKee, Health Worker Rules Mark Triumph of Politics; Centers for Disease Control Rapped for Failing to Write Nationwide Guidelines, Recorder, Oct. 28, 1992, at 1.

81 N.Y. State Dep't Health, Policy Statement and Guidelines to Prevent Transmission of HIV and Hepatitis B Through Medical/Dental Procedures 2 (1992) [hereinafter New York]; Michigan, supra note 14, at 5.

82 Fla. Dep't Health & Rehabilitative Servs., Florida Recommended Guidelines on Health Care Workers Infected with HIV and/OR HBV (1992) [hereinafter Florida].

83 Fla. Admin. Code Ann. r. 21M-24.002 (1992).

84 Tex. Health & Safety Code Ann. § 85.204(b)(4) (West 1992).

85 410 Ilcs 325/5.5(c) (Smith-Hurd 1993); Minn. Stat. Ann. § 214.19 subd. (2) (West Supp. 1994).

86 State of Alaska Dep'T Health & Social Servs., Guidelines for Preventing Transmission of HIV and HBV During Exposure-Prone Invasive Procedures (1992) [hereinafter Alaska]; Arizona Dep't Health Servs., Recommendations for the Prevention of HIV/HBV Transmission from Health Care Workers to Patients (1991) [hereinafter Arizona]; California Dep't Health Servs., Guidelines for Preventing Transmission of Bloodborne Pathogens in Health Care Settings (1993); State of Conn. Dep't Health Servs., Policy on HIV/ HBV Infected Health Care Workers (1992); Florida, supra note 82; State of Haw. Dep't of Health, Hawaii's Policy Statement and Guidelines to Prevent Transmission of Hepatitis B and HIV TO Patients During Exposure-Prone Invasive Procedures (1991) [hereinafter Hawaii]; IDaho Dep't Health & Welfare, IDAHO Guidelines ON HIV/HBV Infected Health Care Workers (1993); Iowa Dep't Pub. Health, Policy on HIV/HBV Infected Health Care Workers (1992); Louisiana Dep't Health & Hosps., Department Health & Hospitals Guidelines on HIV/HBV Infected Health Care Workers (undated); Maine State Dep't Human Servs., Policy Statement and Guidelines to Prevent Transmission of HIV and Hepatitis B Through Medical/Dental Procedures (1992) [hereinafter Maine]; Commonwealth of Mass. Dep't Pub. Health, Recommendations and Action Plan to Prevent the Transmission of HIV and HBV in the Delivery of Health Care Services (1992); Michigan, supra note 14; Nevada State Health DIV., Nevada Recommendations on HBV-Infected and/OR HIV-Infected Health Care Workers (1993); New Mexico Dep't of Health, Guidelines to Prevent Transmission of Bloodborne Infections During Invasive Surgical and DEntal Procedures (1992); New York, supra note 81; NOrth Dakota, supra note 25; Oregon Health DIV., Proposed Administrative Rules for Hepatitis B-and HIV-Infected Health Care Workers (1993); Rhode Island Dep't Health, Policy on HIV/HBV Infected Health Care Workers (1992); South Dakota Department of Health, Guidelines for Preventing Transmission of HUman Immunodeficiency Virus and Hepatitis B Virus in Health Care Settings (1993); State of Utah Dep't Health, Policy and Procedures on the Management of HIV-Positive and Hbvpositive Health Care Workers (1992); State of Vermont Dep't Health, Guidelines for Preventing Transmission of the Human Immunodeficiency Virus and Hepatitis During Exposure- Prone Invasive Procedures (undated); Wisconsin Dep't Health & Social Servs., Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus from Health Care Workers to Patients and from Patients to Health Care Workers Through Medical/Dental Procedures (1992); State of Wyoming Dep't Health, Recommendations on HBV-Infected and/OR HIV-Infected Health Care Workers (1993).

87 Michigan, supra note 14; New York, supra note 81.

88 Michigan, supra note 14; New York, supra note 81.

89 Michigan, supra note 14; New York, supra note 81.

90 New York, supra note 81. In developing its guidelines the State Department of Health consulted with infection control experts, as well as representatives of medical, dental and hospital associations and consumer groups. Id. New York's guidelines have been approved by the CDC. B.D. Cohen, AIDS Rules on Health Workers OKd, Newsday, Dec. 2, 1992, at 39.

91 New York, supra note 81, at 2.

92 Id.

93 Id.

94 Id.

95 Id.

96 Id. at 3.

97 Id.

98 N.Y. Civ. Serv. Law § 83 (McKinney 1992).

99 New York, supra note 81, at 4.

100 Id.

101 Id. at 2.

102 Id.

103 Id.

104 Id. at 2.

105 Id.

106 Id.

107 Id. at 3. The evaluation of an HIV-positive HCP includes review of certain factors, an institutional review process, state appointed review panels, Department of Health consultation, enforcement of practice restrictions, and confidentiality of the HCP's HIV status. Id. at 3-4.

108 Id. at 3.

109 Id.

110 Id.

111 Id. at 4.

112 Id. As a result, a professional exhibiting noncompliance may be charged with professional misconduct for negligent practice in violation of State Education Law. Id.

113 Id. at 3.

114 Id. The purpose of the review panels is to provide timely advice and consultation on an individual's risk of transmission through his professional practice, and to recommend practice limitations, modifications or restrictions where a significant risk to patients is foreseen on the basis of the evidence. The Department is also available for consultation to discuss concerns about HIV-positive individuals. Id. at 4.

115 Id. at 4.

116 Id.

117 Id.

118 Michigan, supra note 14, at 5.

119 Id. Under the recommendations, all HCPs are required to adhere to universal precautions and guidelines for disinfection and sterilization of reusable devices used in invasive procedures. All HCPs should receive training on barrier techniques, universal precautions and other scientifically accepted infection control practices. Ongoing training should be conducted to reinforce proper infection control practices and to inform practitioners of new infection control procedures and devices. Id. at 5, 6.

120 Id. at 6.

121 Id.

122 1978 Mich. Pub. Acts 368 (stating that all reports, records and data pertaining to testing, care, treatment, reporting and research associated with HIV infection and AIDS are confidential).

123 Michigan, supra note 14, at 8.

124 Id. at 7.

125 Id. at 8.

126 Id.

127 Id. at 9. 1978 Mich. Pub. Act 368, §§ 5203, 5205.

128 FLORIDA, supra note 82, at 2.

129 Id. at 2-3.

130 Id. at 3.

131 Id.

132 Id. at 4-5. “Decisions involving notification of patients should be determined for each infected health care worker on a case-by-case basis by expert review panels, taking into consideration recommendations of the CDC, leaders in medical and social sciences, and state public health and licensing departments.” Id. at 4. “Any retrospective notification of patients should be considered on a case-by-case basis taking into consideration: a) infection control practices of the infected health care worker; b) physical and mental status of the infected health care worker; c) occurrence of known exposures of patients to blood/body fluids of the infected health care worker; d) availability of patient records; e) time of seroconversion of the health care worker in relation to when they delivered health care; and f) evidence of possible transmission of bloodborne pathogens to patient.” Id. at 5.

133 Fla. Admin. Code r. 61F6-24.002(1) (1993).

134 Id.

135 Id. at r. 61F6-24.002(3)(a).

136 Id. at r. 61F6-24.002(3)(b).

137 Id. at r. 61F6-24.002 (3) (d).

138 Id. at r. 61F6-24.002(3)(e).

139 Id. at r. 61F6-24.002(3)(f).

140 In Brief, supra note 79; Subsequently, a tenth grantee, Maryland, adopted the CDC guidelines on July 2, 1993. Telephone interview with Karen Wulff, Planner with the AIDS Administration, Maryland Department of Health and Mental Hygiene (Mar. 17, 1994).

141 Tex. Health & Safety Code Ann. § 85.206(2) (West 1992).

142 Id. §85.204(b)(l).

143 Id. § 85.204(c).

144 Id. § 85.204(d).

145 Id. §85.206(1), (4).

146 McKee, supra note 80.

147 Id.

148 Telephone Interview with Linda Moore, Nurse Consultant, Texas Dep't of Health, Bureau of HIV & STD Control (Oct. 15, 1993).

149 Id.

150 Id.

151 410 ILCS 325/5.5(c) (Smith-Hurd 1993).

152 Id.

153 Wendy Melillo, Protecting Patients from Infection; Tests for Health Care Workers and Disclosure of Their HIV Status Still Debated, WASH. POST, Mar. 3, 1992, at 27.

154 410 ILCS 325/5.5(c). “The term ‘invasive procedures’ means those procedures termed invasive by the Centers for Disease Control in current guidelines or recommendations for the prevention of HIV transmission in health care settings … .” Id.

155 Id.

156 Id.

157 Id. § 8(a).

158 Id. 18(a)(4).

159 Minn. Stat. Ann. § 214.19(2) (West Supp. 1994).

160 Id. § 214.19(1).

161 Terese Hudson, HIV-positive Health Care Workers Pose Legal, Safety Challenges for Hospitals, Hospitals, Sept. 20, 1992, at 24 (quoting David Feinwachs, general counsel at the Minneapolisbased Minnesota Hospital Association).

162 Minn. Stat. Ann. § 214.20(1) (West Supp. 1994). “'Board’ means the boards of dentistry, medical practice, nursing and podiatric medicine. For purposes of sections 214.19, subdivisions 4 and 5; 214.20, paragraph (1); and 214.24, board also includes the board of chiropractic examiners.” Id. § 214.18 Subd. 1.

163 Id. § 214.23 Subd. 2. “A board may refuse to grant a license or registration or may impose disciplinary or restrictive action against a regulated person who:

  1. (1)

    (1) fails to follow accepted and prevailing infection control procedures …

  2. (2)

    (2) fails to comply with any requirement of sections 214.17 to 214.24; or

  3. (3)

    (3) fails to comply with any monitoring or reporting requirement.” Id.

164 Id. § 214.23 Subd. 2.

165 Id. § 214.23 Subd. 2(1) to (3).

166 Doebbeling, Bradley N. & Wenzel, Richard P., The Direct Costs of Universal Precautions in a Teaching Hospital, 264 JAMA 2083 (1990)Google Scholar (the $336 million estimate is for the 1989 fiscal year after adjustment for inflation).

167 Id. at 2085-86.

168 Id. at 2086.

169 Id. at 2084. Before the implementation of universal precautions, the expenditures for all isolation materials amounted to $509,500 for the 1987 fiscal year. Following the initiation of universal precautions the amount rose to $860,400 representing an increase of $350,900. Id.

170 Id.

171 Wong, Edward S. et al., Are Universal Precautions Effective in Reducing the Number of Occupational Exposures Among Health Care Workers?, 265 JAMA 1123 (1991)Google Scholar.

172 Id.

173 Id.

174 Id.

175 Id. at 1126.

176 Id. at 1123.

177 S.B. 18, 398th Leg. Sess. (1992); see also Maryland Governor's Testing Proposal Draws Criticism From Medical Community, AIDS Pol'y & L., Aug. 21, 1991 at 1; Melillo, supra note 153. Maryland requested and received an extension of one year to comply with the Congressional mandate to adopt the CDC's guidelines or their equivalent. On July 2, 1993, Maryland adopted the CDC's guidelines. Telephone interview with Karen Wulff, Planner with the AIDS Administration, Maryland Department of Health and Mental Hygiene (Mar. 17, 1994).

178 National Commission, supra note 1, at 22.

179 Id.

180 CDC Draft Guidelines Said to be Based on Faulty HIV Transmission Assessments, AIDS Pol'y & L., May 29, 1991, at 1, 7 [hereinafter CDC Draft].

181 Id. at 8.

182 Id. at 7-8.

183 Id. at 8. “An orthopedic surgeon lost from practice for five years would cost about $1 million to replace.” Id.

184 See New York, supra note 81, at 2; Michigan, supra note 14, at 3.

185 New York, supra note 81 , at 2.

186 Michigan, supra note 14, at 3.

187 See Horsburgh et al., supra note 2, at 639.

188 CDC Draft, supra note 180, at 8.

189 National Commission, supra note 1, at 24-25.

190 Michigan, supra note 14, at 3. It is estimated that of the four and one-half million HCPs in the United States, 360 surgeons, 1,200 dentists, 5,000 physicians, and 35,000 other health care workers are HIV-positive. National Commission, supra note 1, at 23.

191 Michigan, supra note 14, at 3.

192 Seroconversion is defined as “[d]evelopment of detectable specific antibodies in the serum as a result of infection or immunization.” Stedman's Medical Dictionary 1408 (25th ed. 1990).

193 Michigan, supra note 14, at 3.

194 Id.

195 35 Pa. Cons. Stat. §§ 7601-7612 (1991).

196 In re Milton S. Hershey Medical Ctr. of the Pa. State Univ., 595 A.2d 1290 (Pa. 1991).

197 Id. at 1291.

198 Id.

199 Id. at 1292.

200 Id. at 1293. The Court stated that the best interests of Dr. Doe were served by notifying those patients who were involved in “intrusive procedures” and thus only those at risk of infection. Id. at n.3. However, Dr. Doe disagreed “asserting that ‘[t]he disclosure permitted by the [trial] court was not to patients proven exposed to HIV, but to patients who might have been exposed to a risk of being exposed …’ “ Id.

201 Id. at 1294. Section 7608 of the Confidentiality of HIV-Related Information Act provides:

  1. (a) Order to Disclose. No court may issue an order to allow access to confidential HIV-related information unless the court finds, upon application, that one of the following conditions exists:

  2. (1) The person seeking the information has demonstrated a compelling need for that information which cannot be accommodated by other means.

  3. (2) The person seeking to disclose the information has a compelling need to do so. 35 Pa. Cons. Stat. § 7608(A) (1991).

202 In re Milton S. Hershey Medical Ctr. of the Pa. State Univ., 595 A.2d 1290, 1294 (Pa. 1991). In assessing the compelling need, “[t]he court shall weigh the need for disclosure against the privacy interest of the individual and the public interests which may be harmed by disclosure.” 35 Pa. Cons. Stat. § 7608(C) (1991). The trial court's order permitted the hospitals to “disclose the identity of Dr. Doe, M.D. as follows and only as thus authorized. 1. By providing the name of Dr. Doe to the physicians in the Obstetrics and Gynecology Departments including the physicians in the residency program. 2. By writing by a patient for whom Dr. Doe participated in a surgical procedure or obstetrical care. 3. By describing Dr. Doe in letters to patients and in media releases as ‘a physician in our joint Obstetrics and Gynecology residency program’ and by setting forth the relevant period of such service.” Hershey Medical Ctr., 595 A.2d at 1294.

203 Hershey Medical Ctr., 595 A.2d at 1302.

204 Id. “It is the intent of the General Assembly to promote confidential testing on an informed and voluntary basis… . It is the further intent of the General Assembly to provide a narrow exposure notification and information mechanism … to learn of a patient's HIV infection status and thereby obtain the means to make informed decisions with respect to modes and duration of therapy as well as measures to reduce the likelihood of transmitting an infection to others.” 35 Pa. Cons. Stat. §§ 7602(C), (D) (1991).

205 Hershey Medical Ctr., 595 A.2d at 1302.

206 See Rossi v. Estate of Almaraz, Nos. 90344028, CL 123396, 1991 WL 166924 (Md. Cir. Ct. May 23, 1991); Faya v. Estate of Almaraz, Nos. 90345011, CL 123459, 1991 WL 317023 (Md. Cir. Ct., May 23, 1991); McBarnette v. Estate of Feldman, 582 N.Y.S.2d 900 (1992). One patient of a New York dentist who died of AIDS, sought class certification of her tort action and “to be designated as a representative plaintiff of ‘all those others so unfortunate as to be at risk of becoming ill, suffering the ravages of disease and meeting untimely death as a result of professional services performed’ by Dr. Feldman.” Id. at 900.

207 Rossi, Nos. 90344028, CL123396, 1991 WL 166924, at *1.

208 Faya at *1.

209 Id. at *2. Faya, Nos. 90345011, CL 123459, 1991 WL 317023, at *2.

210 Rossi at *1; Faya at * 1.

211 Rossi at *1; Faya at *1.

212 Rossi at *3.

213 Faya at *2.

214 Rossi v. Estate of Almaraz, Nos. 90344028, CL 123396, 1991 WL 166924 (Md. Cir. Ct., May 23, 1991). Faya, at *3.

215 Rossi at *3-4; Faya at * 1.

216 Faya v. Almaraz, 620 A.2d 327 (Md. 1993).

217 Id. at 339.

218 Id.

219 Hershey Medical Ctr., 595 A.2d 1293 n.3.

220 National Commission, supra note 1, at 27.

221 Alaska, supra note 86, at 2; Arizona, supra note 86, at 5; Hawaii, supra note 86, at 5; Maine, supra note 86, at 3; Michigan, supra note 14, at 6; New York, supra note 81, at 4; North Dakota, supra note 25, at 5-7; Wisconsin, supra note 86, at 7.

222 Alaska, supra note 86, at 2; Arizona, supra note 86, at 5; Hawaii, supra note 86, at 5; Maine, supra note 86, at 3; Michigan, supra note 14, at 6; New York, supra note 81, at 2; North Dakota, supra note 25, at 5-7.

223 Maine, supra note 86, at 6; New York, supra note 81, at 4; Wisconsin, supra note 86, at 7.

224 Hawaii, supra note 86, at 5; North Dakota, supra note 25, at 14.

225 410 ILCS 325/5.5(b); Minn. Stat. Ann. § 214.19(2) (West Supp. 1993).

226 Arizona, supra note 86, at 9; Michigan, supra note 14, at 8; Recommendations 1991, supra note 7, at 5; see Hawaii, supra note 86, at 5; Wisconsin, supra note 86, at 11.

227 National Commission, supra note 1, at 1-8; Recommendations 1991, supra note 7, at 1.

228 Chiesielski et al., supra note 8.

229 See supra pp. 37-38.

230 See supra p. 33.

231 Michael Kinsley, Red Peril, the New Republic, Aug. 12, 1991, at 4, 42.