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

January 1, 2008

State laws and regulations that affect your medical practice

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

Yes. Acquired immune deficiency syndrome and human immunodeficiency virus infection are reportable diseases. Test results must be kept confidential and should be released to the local health authority.

V.T.S.C.A. § 81.041

A person commits a Class B misdemeanor if the person knowingly fails to report a reportable disease or health condition.

V.T.S.C.A. § 81.049

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

Informed consent is required but need not be written if there is documentation in the medical record that the test has been explained and the consent has been obtained.

V.T.S.C.A. § 81.105

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

A positive test result may not be revealed to the person tested without giving that person the immediate opportunity for individual, face-to-face post-test counseling about (1) the meaning of the test result; (2) the possible need for additional testing; (3) measures to prevent the transmission of HIV; (4) the availability of appropriate health care services, including mental health care, and appropriate social and support services in the geographic area of the person's residence; (5) the benefits of partner notification; and (6) the availability of partner notification programs.

V.T.S.C.A. § 81.109

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

Partner notification services offered by health care providers participating in a program must be made available and easily accessible to all persons who are HIV positive. A health care professional shall notify the partner notification program when the health care professional knows the HIV positive status of a patient and the health care professional has actual knowledge of possible transmission of HIV to a third party. Partner information is confidential. An employee of a partner notification program shall make the notification to the partner. The employee may not disclose the name of or other identifying information concerning the identity of the person who gave the partner's name or the date or period of the partner's exposure. Notification of a partner of a person with HIV infection may be made regardless of whether the person with HIV infection who gave the partner's name consents to the notification.

V.T.S.C.A. § 81.051

6. 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.

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