NEW JERSEY - ACQUIRED IMMUNODEFICIENCY SYNDROME (AIDS) AND HUMAN IMMUNODEFICIENCY VIRUS (HIV)

1. Must physicians report the diagnosis and the treatment of AIDS or HIV to the State Department of Health and Human Services (DHHS)?

Yes. Every physician attending a person found to be infected with HIV, or ordering a test resulting in the diagnosis of HIV, shall, within 24 hours of receipt of a laboratory report indicating such a condition, or within 24 hours of making a diagnosis of HIV infection or AIDS.

The report must be in writing and made directly to the DHSS on forms supplied by DHSS. Physicians are obligated to report any diagnosis whether or not the patient has previously reported having HIV.

(N.J.A.C. 8:57-2.2(a), 2.3(a))

2. What are the consequences of not reporting?

Physicians may receive written notification of a failure to report. Thereafter, physicians who continue to disregard the warning are subject to a fine. Further actions may be taken by the DOH if the failure to report is considered a "significant hindrance to public health control measures." Physicians may also be subjected to disciplinary action for failure to report, on a theory of unprofessional conduct.

(N.J.A.C. 8:57-2.8)

3. May physicians test patients for HIV or AIDS anonymously?

No, physicians must have the name and address of any person who wishes to be tested. However, physicians may direct patients who want to remain anonymous to facilities that are designated by the DHSS to do anonymous testing.

(N.J.A.C. 8:57-2.5)

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

No. Although some states require that physicians obtain a written informed consent before testing a patient for HIV, New Jersey has no such legal requirements, with the exception noted below. (For example, Pennsylvania does have a "Confidentiality of HIV-Related Information Act" which requires that written consent be obtained first.)

New Jersey requires that hen, within the reasonable exercise of professional judgment and within the physician's licensed scope of practice knows or should know that a patient is pregnant, the physician must ask that the patient to sign a form which includes the following:

A. How HIV is transmitted;

B. The benefits of voluntary testing for HIV infection and of knowing whether or not she is infected with HIV;

C. The treatments that are available to her and her child should the test be positive;

D. The right to refuse the test and without fear of denial of appropriate prenatal care due to this refusal; and

E. The form shall also indicate whether or not the woman has decided to be tested for HIV infection.

Because of the potential for litigation for the failure to obtain an informed consent, it is advisable that physicians always obtain written consent prior to providing an HIV test as well as document the declination of an HIV test. (A sample consent form is provided in the Appendix A-1.)

5. Do physicians have a duty to notify patients of positive test results?

In C.W. v. Cooper Health System, 388 N.J. Super. 42 (App. Div. 2006), the court held that a physician who orders an HIV test for a patient has a duty to take reasonable measures to notify that patient of the test results. This duty applies regardless of the setting in which the patient is seen or where the tests are sent for interpretation. A physician who violates this duty may become liable not only to the patient but to all reasonably foreseeable individuals who contract the virus from the HIV positive patient. This does not mean that a physician has to notify third parties whose health is likely to be threatened by the patient's positive status directly but rather that they must counsel the infected patient on how to avoid transmission of the virus.

It is advisable for a physician to maintain policies for handling the report of HIV test results including the documentation of all measures taken to solicit pending tests and to contact patients who have a positive result.

6. Do physicians have a duty to warn third parties of a patient's AIDS or HIV infection?

Only at the determination and pronouncement of death must written notification by the attending physician of the patient's AIDS or HIV condition accompany the remains and be provided to the funeral director who is responsible for the handling and the disposition of the body.

(N.J.S.A. 26:6-8.2)

Otherwise, there is no express duty to warn third parties of the treatment of patients. However, the DHSS does provide a service which facilitates the notification of third parties of their potential exposure and to recommend that they be tested. Physicians are encouraged to refer patients to a DHSS counseling center for follow-up contact and notification. As confidentiality is of utmost importance, counselors will not reveal the patient's identity. Rather, counselors will inform third parties of potential exposure and make recommendations for testing. The center can also provide patients with psychological counseling, referrals to various support groups, provide information on the disease itself, and recommend the appropriate lifestyle changes the patient should be making.

To learn more about this DHSS program, physicians can obtain the "Physician's Guide to HIV Antibody Counseling and Testing" from the DOH. The telephone number of the DHSS/Division of AIDS Counseling/Testing Notification Assistance Program is (609) 984-6125. The DHSS also maintains an AIDS/STD Hotline number at (800) 624-2377 for general information.

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

In Estate of William Behringer, M.D. v. The Medical Center at Princeton, 249 N.J. Super. 597 (Law Div. 1991), the court held 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 court's disclosure requirement seems to apply to all physicians, regardless of specialty or whether any invasive or exposure-prone procedures will be performed.

The State Board of Medical Examiners (BME) has also issued a policy statement regarding HIV positive physicians. The purpose of this statement is to provide guidance to physicians on professional behavior. The Board advises the following:

1. A physician who believes that he or she may be exposed to HIV by virtue of personal or professional activities should voluntarily be tested.

2. Physicians who are HIV positive should either abstain from performing invasive procedures¹ which pose an identifiable risk of transmission or disclose their status to the patient and proceed only with informed consent.

3. Physicians who are HIV positive should voluntarily and confidentially disclose that status to their Medical Director (or his or her designee) at every health care facility at which the physician practices. In lieu of reporting to a Medical Director, a physician should voluntarily disclose his or her status on a confidential basis to a special committee of the Board of Medical Examiners to be appointed by the President of the Board. When reporting to the Committee, such persons may identify themselves confidentially to the Committee or may designate a Professional Assistance Program approved by the Board which shall verbally communicate to the Board periodically with respect to the anonymous HIV positive physician's status and compliance regarding his or her plan of practice. When a physician reports his or her status to the Medical Director (or designee), that individual should disclose the status of the physician (without identifying the physician by name) to the Board's special committee.

¹Queries as to which procedures are considered "invasive" for the purposes of this policy statement may be addressed to the Board on an anonymous basis.

4. The special committee of the Board shall be available to assist and advise the Medical Director or HIV positive physician regarding alternate employment opportunities, new practice arrangements, rehabilitation and re-education.

(Meeting of BME, November 11, 1992)

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