Confidentiality principles and practices

Infected Surgeon

Confidentiality

Case: Infected surgeon and a duty to disclose

It is extremely important that persons with HIV status are treated fairly and ethically, and healthcare institutions do not support undue hysteria regarding the actions of healthcare workers with HIV. However, given the undeniable risks that HIV poses to patients, it seems unwise for Dr. M to continue in his current capacity as a hands-on surgeon. This is not because HIV workers should be singled out as particularly 'bad' -- this is true of all healthcare workers infected with communicable diseases transmitted through blood. Thus Dr. M should not perform surgical operations in which he could potentially cut himself and expose the patient. At minimum his actions during surgery must follow all existing protocols for healthcare workers and he must inform his patients. But in light of the potential risks, it seems best that Dr. M does not continue in his current capacity.

Dr. M, of course, could still be present in the surgical theater, give advice about surgery, and use his knowledge and expertise. But the actual hands-on actions of surgery are not consequence-free, and even if the risk is unlikely, it is still present. This is not simply an ethically valid argument -- it is also the law. In all healthcare legislation and case law, there is a balancing of patient rights and physician's social obligations. For example, in Tarasoff v. Regents, it was found that a patient's right to privacy must be weighed against the dangers posed to society (211). Of course, according to the Americans with Disabilities Act employers must make reasonable accommodations for employees' disabilities (and under the law, illnesses such as HIV can be considered disabilities). But if the disability is threatening to the safety and health of patients, and the employee cannot perform without putting others at risk, the hospital has a legal as well as an ethical obligation to offer Dr. M different types of work in which he would not come into contact with the blood of a patient and potentially expose the patient to HIV. Yes, health professionals theoretically follow the "universal precautions" pertinent to their field of specialty, but no one is perfect. "Health professionals, who ought to have the knowledge to take universal precautions seriously, often fail to take such precautions" (219). If there is any deviation, Dr. M could expose the hospital and himself to legal risk, and his malpractice insurance, given his status would be astronomically expensive.

Thus, not only does Dr. M have an ethical obligation to tell the hospital and to recuse himself from surgery: the hospital must also remove Dr. M to avoid potential lawsuits, if a patient were to receive surgery and contract HIV from the doctor. Dr. M's decision not to tell the hospital and his patients could put the institution at risk, as well as his professional license and the lives of his patients. While it is important for hospitals to be fair in their treatment of physicians, ultimately there are aspects of certain medical conditions that cannot be ignored. This is not only true of HIV but also of hepatitis. Of course, the hospital should not single out HIV for special, negative treatment; rather it should treat potential contamination of all life-threatening or debilitating illnesses transmitted through blood in a similar manner.