The (Rather Minimal) Legal Duty to Treat

In previous chapters, we discussed the manner in which legal innovations reminded physicians that they needed to seek informed consent and to provide good quality care, as well as evidence

that the care was good. Some might think, having read the case study I just outlined, that the law should also require doctors and nurses to care for all the sick, including those with HIV. This argument may, however, misconstrue the nature of the law as integrity. The law, especially the common law, protects negative freedom, and thus it provides formally equal concern for all individuals. It also ensures that minorities do not suffer at the hands of majorities, by providing for certain substantive civil liberties. Moreover, the liberal legislature decides democratically the manner in which inequalities can be overcome—the overall balance between negative freedom and inequality. Ideally all citizens receive equal concern and respect, but that is only a goal. In any real liberal state, there will be inequalities, even inequalities that conflict with the ideal of equal concern and respect. Thus some people, because of the nature of their disease, might receive less than equal treatment. The liberal state might be unwilling to constrain the negative freedom of others, for instance, health care workers, so that equal treatment is provided. This appears to be the case with the common law and AIDS: the doctor's freedom to choose is respected, even to the detriment of sick people.

The traditional paradigm for establishment of the doctor-patient relationship is the contract.1 Under common law, physicians have been allowed to refuse to care for patients in nonemergency settings. Physicians are also allowed to limit the care they provide to certain kinds of problems or to certain subspecialities.2 However, once a physician begins to treat a patient, a relationship is assumed and care must be continued until the patient no longer needs treatment for this specific problem.3

This does not mean that a physician must continue to treat a patient until the patient decides to go elsewhere for therapy; if the patient is not acutely ill, the physician may end the relationship after giving enough notice for the patient to find a new physician.4 If a physician ends the doctor-patient relationship while the patient is in need of care, the physician may be found to be in breach of the implied contract, and a patient mas, sue under the doctrine of "abandonment."5 Abandonment doctrine thus prohibits a physician from unilaterally refusing to care for a patient once a relationship has been initiated, unless that patient's health is stable and sufficient notice is given of the physician's intention to withdraw from the relationship.

Abandonment doctrine will have a relatively small role to play in assuring access to health care for patients with AIDS. If a physician is treating a patient who has AIDS, he can withdraw, but he will have

to give ample warning and recommend another physician for the patient. Moreover, the physician cannot withdraw if the AIDS patient is acutely ill. AIDS patients are frequently ill, and many times the illness is critical. Does this mean that once a physician enters a relationship with an AIDS patient, he is committed to treatment of that patient for life? Some commentators have answered this question in the affirmative, but I think this demonstrates an incomplete understanding of the clinical course of AIDS as well as the law of abandonment.6 The disease tends to smolder, then it flares up with opportunistic infections. In the majority of AIDS cases there are times in which patients are quite stable and a new therapeutic relationship could be forged without detriment to the patient. Moreover, the care of patients with AIDS is becoming more sophisticated, and primary, care practitioners, for instance, may cite lack of specialist knowledge as the reason for terminating a relationship with a patient with AIDS. Thus the doctrine of abandonment does not prohibit a physician's withdrawal from a relationship with an AIDS patient.

The same is true for a patient who is HIV seropositive. People who carry the HIV may be completely asymptomatic and may not require any intense therapy. While such patients may potentially become quite sick, they are usually not acutely ill, and proper notice can be given with no problem. Nor will the doctrine of abandonment prevent doctors from requesting antibody screening before they initiate care for individuals. Since there may in the future be new drugs available to treat seropositive patients, a primary care physician can argue that the care of seropositive patients also requires specialist knowledge. Thus the refusal to care can be couched in terms of concern for the patient.7

In the case of Mrs. D. cited above, the patient would have had grounds, had we forced her to leave, for an abandonment suit. We were already providing care for her, and she was acutely ill. Thus the common law would have found us in violation of her negative freedom and the expectation of being treated fairly.

However, hers is not the typical case, although it is the most frightening for many health care workers. Physicians studying this paradigm might well decide that they will limit their care to people who do not have AIDS. They can justify this refusal to care on the grounds that they do not understand all the problems that can develop in people with AIDS, and that AIDS for them is like cancer; it is best handled by specialists. Underlying this seemingly prudent decision, however, will be the realization that they simply do not want to have to face the

incredible social problems presented by many patients with HIV infection, or the fear of contracting the virus from the patient. (The situation is even more difficult for nurses, who have more contact with patients in general, and who might decide that some career other than hospital nursing seems more attractive.)

Fears of contracting the virus may lead to real shortages of practitioners available to care for people with HIV infection. Especially as the epidemic deepens and moves into urban communities which have long been underserved, it may be difficult to find enough physicians willing to undertake the small risk associated with caring for patients with AIDS. In this area, the common law of abandonment tends to emphasize the negative freedom of the physician, and it thus does little to correct the inequalities that might develop around care for those infected with HIV.

Of course, the common law is not the only means the liberal state employs to develop legal duties. The law as integrity is not restricted to traditions of judicial law. In addition to the common law sanction of abandonment suits, there are statutory controls over physicians' practice that could serve as sanctions against physicians who refuse to care for seropositive patients. Physicians are licensed by the state, and the state retains some control over the manner in which physicians practice. This power could be used to prohibit physicians from discriminating against patients who are seropositive.

In New Jersey, for example, the state's licensing authority has stated that physicians cannot discriminate against patients with AIDS or AIDS related complex (ARC).8 The state does not, however, require treatment if the physician states that she does not have the skill or experience to treat the disease. Thus, while state licensing authorities may be able to mandate that if a surgeon is qualified to do an open lung biopsy, he cannot refuse to do one on an HIV seropositive patient, the state will not be able to mandate that all primary care practitioners must care for HIV seropositive patients. This means that even laws emphasizing the civil rights of individuals may prove ineffective in guaranteeing the equal concern and respect that is the ideal of liberalism.

Hospitals and other health care institutions are governed by a set of doctrines different from those covering individual practitioners. (Of course, many physicians are employed directly by hospitals, and the doctrines that apply to institutions will apply to the physicians employed there.)9 Hospitals that have emergency rooms must treat all

patients who arrive in unstable condition.10 Unfortunately, this right to emergency care at a hospital that offers emergency services does little to guarantee that people with AIDS will have unfettered access to health care. If an AIDS patient is suffering from a medical emergency, it is clear that he or she has a legal right to care in a hospital with an emergency service; but the law provides little more than emergency care. Once the acute medical problem stabilizes, the hospital and its employees are able to sever the therapeutic relationship.11 However, the federal government, prompted by tile phenomenon of "dumping" indigent patients in county hospitals, has instituted sharp penalties for hospitals that send unstable patients to other facilities.12 While these penalties will help ensure safe transfer, they do not guarantee access to health care at any particular institution. Indeed, it is likely that private hospitals will increasingly send indigent AIDS patients to county or public hospitals.

These provisions will accommodate at least some individuals with AIDS, but they will not assure the kind of continuing primary care that may be the cornerstone of treatment for HIV in the future, especially as more drugs emerge for the treatment of the asymptomatic carrier.13 Indeed, patients like Mrs. D. may continue to find that legal guarantees of emergency treatment are essentially empty promises. Every emergency room physician realizes that a confrontation with an intravenous drug user over the availability of narcotics will drive the patient away. Thus the law can do relatively little, in real terms, to secure treatment for individuals with HIV infection.