MASSACHUSETTS - ACQUIRED IMMUNODEFICIENCY SYNDROME (AIDS) AND HUMAN IMMUNODEFICIENCY VIRUS (HIV)

1. Must physicians report the diagnosis and the treatment of AIDS or HIV to the Massachusetts Department of Health?

Yes. Beginning January 1, 2007, health care providers will be required to shift from a code-based to a confidential name-based reporting system for reporting new HIV cases. This is in response to pressure from the CDC which seeks to establish uniform standards in HIV reporting. Only five other states have yet to mandate the reporting of names with HIV test results, and all five are moving towards such a policy.

2. Must a physician obtain a written informed consent from a patient before testing for HIV?

M.G.L.A. 111 § 70F

3. Does the Department of Health have a duty to notify patients of positive test results?

The Department may, as it deems appropriate, undertake intervention to promote and protect the public health. Such intervention may include, but shall not be limited to: (1) offering examination and treatment of infected persons; and (2) identification, notification, examination and preventive treatment of contacts and other persons suspected of being infected.

105 MA ADC 340.200

4. Must a physician inform a patient of the physician's HIV infection or AIDS condition?

The courts are still attempting to define the rights of health care workers with HIV, especially those who perform invasive procedures. In New Jersey, the Superior Court held in Estate of William Behringer, M.D. v. The Medical Center at Princeton, 249 N.J. Super. 597 (Law Div. 1991), that an HIV-infected physician must disclose his or her HIV status to patients, in keeping with the commitment of New Jersey courts to the concept of informed consent. The New Jersey court's disclosure requirement seems to apply to all physicians, regardless of specialty or whether any invasive or exposure-prone procedures will be performed.

Similarly, in Doe v. University of Maryland Medical System Corporation, 50 F. 3d 1261 (1995), the U.S. Court of Appeals, Fourth Circuit held that an HIV positive surgeon could not allege violations of the Americans with Disabilities Act (ADA) for his suspension from surgical duties because he posed a significant risk to patients through percutaenous injury that could not be eliminated by reasonable accommodation.

Since this area of law is unsettled, an HIV-positive health care worker should always consult with his/her attorney with any questions as to his/her rights.

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.