PENNSYLVANIA - 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. A physician, hospital, or person providing HIV services who makes a diagnosis of AIDS, receives HIV or CD4 T-lymphocyte test results or learns of perinatal exposure of a newborn to HIV must report via an encrypted database file to the local Health Department/Local Morbidity Reporting Office within 5 business days of the diagnosis.

Pennsylvania Department of Health

The Department will conduct ongoing reporting audits (retrospectively to 1/2000) and may levy a penalty when providers persistently fail to comply with reporting requirements.

Pennsylvania Department of Health

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

Yes. No HIV-related test shall be performed without first obtaining the informed written consent of the subject. Any consent shall be preceded by an explanation of the test, including its purpose, potential uses, limitations and the meaning of its results.

35 P.S. § 7605

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

Yes. The physician who ordered the test or his/her designee shall make a good faith effort to inform the subject of the result regardless of whether the result is positive or negative. No test result shall be determined as positive, and no positive test shall be revealed, without confirmatory testing if it is required by generally accepted medical standards.

35 P.S. § 7605

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

The subject must be given face to face counseling about the availability of any appropriate health care services, including mental health care and appropriate social and support services and the benefits of locating and counseling any individual who the infected subject may have exposed to HIV and the availability of any services with respect to locating and counseling such individual.

In addition, the subject should be advised of the benefits of locating and counseling any individual by whom the subject may have been exposed to HIV.

35 P.S. s 7605

7. Must a physician inform a patient of the physician's own 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.