HIV: To tell or not to tell

By Berkeley Rice
Senior Editor

Balancing a patient's privacy against your duty to protect others is fraught with legal peril.

Internist Subrahmanya Bhat faced an increasingly common ethical dilemma. His HIV-positive patient had a right to confidentiality. But the doctor also felt a duty to warn other health care providers of his status. When the Riverdale, GA, physician notified those he felt were at risk, the patient sued him.

The patient, Spencer Waddell, was working as a dental hygienist in September 1997 when he arrived at Bhat's office, complaining of a sore throat. After discussing various risk factors, Bhat recommended an HIV test, and Waddell agreed. He signed a consent form authorizing Bhat to order the test, put the results in his medical record, and notify other health care providers if necessary. That final provision read: "I consent to the facility's release of the results of these blood tests to those health care practitioners responsible for my care and treatment or as may otherwise be in accordance with applicable law."

When Waddell returned several days later, Bhat told him he had tested positive. Based on Waddell's calm reaction, Bhat assumed—correctly—that Waddell was already aware of his status. In fact, he had known he was HIV-positive since 1988. He had not revealed the condition to his employers, patients, or colleagues, however. Nor had he informed various physicians and other health care providers who had subsequently treated him during several invasive surgical procedures.

In 1996 Waddell had been hired by a dental clinic in Riverdale, an Atlanta suburb. As a benefit of his employment there, he was entitled to free dental care. He filled out a new patient questionnaire that asked if he'd ever taken an HIV test. He reported that he had, and that he'd tested negative. (He later explained that he'd lied because he was skeptical of the clinic's confidentiality safeguards.)

Bhat told Waddell that he felt a "moral and ethical obligation" to inform the dental clinic in order to protect both the staff and its patients. Waddell protested that he presented no risk of exposure to his colleagues at work, and that such disclosure was therefore unnecessary. Soon after Waddell left the office, however, Bhat called dentist Eugene Witkin, who ran the Valley Forge Dental Clinic, and informed him of Waddell's test results.

An ADA suit charges discrimination

After Witkin conferred with the clinic's administrator, they placed Waddell on temporary paid leave, telling him he could no longer treat patients. Instead, they offered him a job as a receptionist, at roughly half his former salary. When he refused the offer, they fired him.

In 1999, Waddell sued the clinic in federal court, charging it with discrimination under the Americans with Disabilities Act. The clinic moved for summary judgment, arguing that Waddell's HIV-positive status constituted a direct threat to the dental patients he treated. That risk, the clinic claimed, made him unqualified to perform the duties of a dental hygienist, and therefore not subject to ADA protection. The trial judge granted the clinic's motion.

Waddell appealed the case to the US Court of Appeals, with support from the Lambda Legal Defense and Education Fund, a gay rights organization. His appeal also drew supporting briefs from the American Dental Association, the American Public Health Association, and the Infectious Diseases Society of America. In December 2001, a three-judge appellate panel unanimously upheld the trial court's decision.

In his opinion, Judge Stanley Birch noted the possibility that Waddell could cut himself during a cleaning procedure and bleed into an open wound in a patient's mouth: "None of Waddell's medical experts, moreover, appear to dispute that transmission theoretically could happen, even though the risk is small and such an event never before has occurred," the judge wrote. Given that risk, however, "Waddell posed a direct threat to patients at his work place."

Suing the messenger

Waddell also sued Bhat in state court, claiming that by revealing his HIV status to the dental clinic, the internist had violated his right to privacy. Waddell argued that when he'd signed the consent form authorizing disclosure of his condition to other health care providers, he assumed that meant specialists to whom Bhat might refer him—not his dentist-employer.

Although this wasn't technically a malpractice case, Bhat's liability carrier agreed to handle it, and assigned Atlanta attorney Rolfe Martin to represent him. Martin moved for summary judgment, citing Georgia's Omnibus AIDS Act. Under that law, physicians authorized to order HIV tests are specifically allowed—but not required—to disclose a patient's HIV-positive status to another health care provider who is or will be treating that patient if there's a risk that the physician or the facility's staff or patients could be at risk of infection.

The trial judge granted Bhat's motion for summary judgment, and again, Waddell appealed. Last September, a three-judge state appellate panel affirmed the trial court's decision. The Georgia law intended "to maintain the precarious balance between the privacy rights of those individuals who have tested positive for HIV and the rights and privileges of health care professionals who provide treatment to them," noted Chief Judge G. Alan Blackburn.

"In light of Waddell's dogged refusal to inform any of his doctors or patients of his HIV status," the judge wrote, "Dr. Bhat's disclosure to Dr. Witkin was more than reasonably necessary to protect Valley Forge personnel and patients from the risk to which Waddell exposed them." Given those risks, the judge concluded, "the rights of Waddell's health care providers to know [his] HIV status before being exposed to the risk of a fatal disease take precedence over Waddell's right of privacy."

Once the dental clinic learned of Waddell's HIV status, the judge noted, it had a duty to provide that information to any patients Waddell might treat, giving them the right to make an informed decision about whether they were willing to accept the risk of potential exposure to HIV. As the judge explained, "If we accept that health care providers are entitled to know if their patients are HIV-positive, how can an affected patient be denied the same knowledge about their treating health care provider?"

So what should a doctor do?

Because state laws vary (see "Disclosing HIV: What are the rules?"), Bhat's attorney Rolfe Martin is reluctant to offer specific advice to doctors caught between conflicting obligations to protect patient confidentiality and to protect other physicians and patients from exposure to a dangerous disease. "Georgia's law permits a doctor to disclose a patient's HIV status to other physicians if he feels they're at risk," says Martin. "But it's not a statutory requirement. You have to do what you think is right, even if that means violating a patient's confidentiality, and risking a lawsuit."

Lee Johnson, a Mt. Kisco, NY, health care attorney who specializes in risk management issues, agrees. "The trend these days is toward warning potential victims if a patient is HIV-positive." Doctors who feel morally obliged to issue such warnings should inform the patient of their policy before ordering the test, she adds, and should get the patient's acknowledgment in writing.

"The patient may still sue you for violating his confidentiality," Johnson concedes, "but your chances of being held liable are small if you're acting in good faith to prevent what you believe is a significant risk of transmission of a serious disease." Besides, she says, "You must ask yourself which suit you'd rather defend before a jury: one for divulging information that violated a patient's privacy; or one for concealing information that would have kept someone else from contracting a fatal disease."

Disclosing HIV: What are the rules?

"The obligation to safeguard patient confidences is subject to certain exceptions which are ethically and legally justified because of overriding social considerations." That's what the AMA's Code of Medical Ethics says. As Clarence Braddock III, a Seattle internist and ethicist explains, "Most of the justifiable exceptions to patient confidentiality involve situations where there's a real or sizable threat to the public, as opposed to an imagined or minute threat."

The AMA code offers these specific guidelines on HIV: "Exceptions to confidentiality are appropriate when necessary to protect the public health or when necessary to protect individuals, including health care workers, who are endangered by persons infected with HIV. If a physician knows that a seropositive individual is endangering a third party, the physician should, within the constraints of the law: (1) attempt to persuade the infected patient to cease endangering the third party; (2) if persuasion fails, notify authorities; and (3) if the authorities take no action, notify the endangered third party."

State laws on HIV testing and confidentiality vary considerably. While every state requires doctors to report patients with AIDS to state or local health departments, not all require them to report the names of patients who test positive for HIV. State health investigators typically review those cases and may interview the patients. If they decide that a patient poses a significant risk to other health care workers, they may inform them of the patient's HIV status.

The majority of states require that patients either sign informed consent releases or provide oral consent before being tested for HIV. Many states waive that requirement, however, if the doctor suspects that the patient may expose other health care providers to a risk of infection, or if he poses a threat to public health. In some states, the consent form must specify "the circumstances under which, and the persons to whom disclosure of information may be required, authorized, or permitted by law."

Most state laws permit—but do not require—physicians to inform a patient's spouse or sexual partners if the test results are HIV-positive. In those states, doctors who do so are protected from breach-of-confidentiality claims as long as they act "in good faith" when relaying this information. For details on HIV confidentiality laws in your own state, check with your state medical society, or the Web site of the Health Privacy Project in Washington, DC, at: www.healthprivacy.org .

Berkeley Rice. HIV: To tell or not to tell.

Medical Economics

May 9, 2003;80:35.