Until recently there were few court decisions addressing AIDs in the workplace, however, the number of cases filed are increasing in dramatic proportions.  The 1990's are likely to bear witness to a multitude of complex legal issues, such as an employer's  duty to protect employees from contracting HIV, and, under the circumstances under which an employer can inform fellow employees that a co-worker is HIV infected.

                In April of this year, a California surgeon filed a lawsuit against a California Hospital, alleging that he contracted HIV from a patient he performed surgery on.  The surgeon's complaint is based on theories of negligence and invasion of privacy.  The outcome of this lawsuit will have a tremendous impact on a hospital's responsibility to comply with established standards of practice and an employee's right to privacy.

                In this California case,John Doe v. Kaiser, a  surgeon entered contract, which granted the physician surgical privileges with Kaiser Hospital.  While performing surgery at Kaiser Hospital the physician became exposed to a patient's bodily fluid.  The surgeon first became aware of his HIV status after undergoing a blood test for a life insurance application.  Upon learning of his condition the surgeon notified his medical supervisor and requested to withdraw from performing invasive surgical procedures.  The supervisor then informed the medical staff of the surgeon's HIV status.

                The surgeon has two causes of action against Kaiser Hospital.  The first cause of action is based on negligence.  Under the theory of negligence, the surgeon alleges that the Hospital did not have a proper follow-up procedure for needlesticks and that the Kaiser Hospital did not properly comply with either the Center for Disease Control or Occupational Safety and Health Administration regulations.   Both the Center for Disease Control and the Occupational Safety and Health Administration provide that an employer which has employees with occupational exposure to blood or bodily fluid must take certain measures to eliminate or minimize the risk of transmitting the disease.  Specifically, the Center for Disease Control requires health care providers to practice universal precautions.  In addition, the Occupational Safety and Health Administration requires an employer to establish a written plan to eliminate or minimize the risk of exposure.  The plan must contain methods of compliance such as providing at risk employees with protective equipment --- gowns, masks, gloves, and eyeware.  Lastly, the plan must provide for post-exposure evaluation and follow-up procedures.

                The physician's second cause of action is against the Hospital for invasion of privacy for disclosing the surgeon's HIV status to the medical staff without his consent.  The issue of disclosure is hotly debated within the medical community.  Generally, an employer can disclose an employees HIV status only if the employer can articulate a compelling reason for disclosure.  The employer's legitimate business interest in obtaining and publishing the information must be balanced against the substantiality of the intrusion on the employee's privacy resulting from the disclosure.

                The implications of this case will be tremendous from the perspectives of both the health care practitioner and the health care institution.  As a health care practitioner, one must first be aware of what the federal guidelines are as well as a facilities own policies and procedures.   Second, a health care practitioner must assess whether or not the health care institution is in compliance with those guidelines.   On the other hand, health care institutions must evaluate their own policies and procedures and determine whether or not they adhere to the federal regulations currently in place.  Health care institutions if faced with such a dilemma must carefully balance their own business practices and the privacy rights of the affected health care practitioners. Lastly, health care institutions should watch this case carefully as it may precipitate a flood of law suits.

    Co-Workers Infected with HIV Virus

    by Attorney Frank E. Reardon

    September 1992

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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