The Ethical Duty to Treat
I have argued that in certain spheres of activity, voluntary moral behavior, involving altruistic actions, contributes to the liberal state's sense of community and helps balance the demands of negative freedom with the ideal of equal concern and respect. The cooperativeness of the liberal state, the sense of the state as a community, is brought about not only by the law as integrity but also by concern for others, both at the individual level and within certain spheres of concerted activities.
The principles of just doctoring define medicine as one of these
spheres and constitute the practice of medicine as a moral activity that contributes to the sense of cooperation within the liberal state. Thus it is clear that medical ethics must naturally address the potential inequalities that would occur if we relied solely on the law to bring about care for those infected with HIV. Just doctoring must include a duty to treat. Before defining that duty, however, we should review the nature of the threat posed by HIV to those who care for patients infected with it.
The magnitude of the problem posed by HIV in this country, alone is well known. Since 1981, there have been nearly a hundred thousand reported cases of AIDS. It is estimated that approximately one million individuals carry HIV, and that many of these individuals will eventually develop AIDS.14 Although there are increased rates of infection in African American and Hispanic communities,15 there is no way to know whether or not a person is an asymptomatic carrier without a blood test.16 Thus many patients may be unrecognized HIV carriers.17
Fears about occupational transmission have developed relatively recently. At the beginning of the epidemic, there was little discussion of this issue, probably because the risk of transmission was thought to be nearly nonexistent.18 However, in the summer of 1987, the Centers for Disease Control (CDC) reported three cases of HIV infection in health care workers who were splashed with HIV seropositive blood, a manner of exposure that was previously thought not to be a hazard.19 Soon thereafter other researchers demonstrated that the HIV infection rate was much higher than expected in patients admitted to emergency rooms.20 These reports demonstrated that occupational transmission of HIV would not be limited to needle injuries involving AIDS patients. At about the same time, the first suit was filed by a physician against a hospital in which he claimed that he was exposed to HIV and developed AIDS after a blood tube accident.21 More suits by health care workers have followed.22
These suits have heightened health care workers' awareness of the dangers of HIV as an occupational disease, and there are signs of changes in professional attitudes. Surprisingly large numbers of surgeons support mandatory testing and refusal of surgery for HIV seropositive individuals.23 Very few dentists accept new patients with AIDS.24 Thus, although the risk of occupational infection is still thought to be very low,25 physicians and other health care workers, as well as the hospitals in which they work, may soon begin to limit care.26 Indeed, new data suggest that the risk of contracting HIV for
a medical house officer is greater than the risks for police officers of being shot, or for asbestos workers of dying from asbestos-related disease.27 A recent debate at San Francisco General Hospital provides a disturbing picture of our current situation. Researchers there have demonstrated that the occupational risk of contracting HIV is quite low; nevertheless, the chief of orthopedic surgery at the hospital has advocated a policy of physician discretion regarding elective operations on HIV seropositive patients.28 Thus a sense of disquiet is spreading, retarded only by rational arguments concerning the minuscule risk of exposure if one adheres to the standards of the CDC and Occupational Safety and Health Administration (OSHA) on safety procedures and precautions.29 The risk is real, if small, and the law can do little to force physicians to care for those infected with HIV.
Even if the risk were more substantial, just doctoring would require that physicians not discriminate on the basis of type of illness; indeed, it demands an assurance of equal care for those infected with HIV. But what are the limits of this ethical duty to treat?
This can be answered in part by addressing the ethical approaches to the duty to treat. Some create open-ended duties. Ezekiel Emmanuel has noted, for example, that "the objective of the medical profession is devotion to a moral ideal—in particular healing the sick."30 In other words, the ethical obligation to heal entails treating all sick people. Abigail Zuger and Steven H. Miles have framed the relationship of principle to obligation in a slightly different manner. They argue that the practice of medicine itself requires the physician to act virtuously, to exemplify honesty, compassion, fidelity, and courage.31 Since refusing to care for HIV seropositive patients is without virtue, physicians have an obligation to treat everyone. John D. Arras elaborates on this principle of virtue, noting that "in refusing to treat, physicians violate their own professional commitment to the end of healing."32
Yet, a theory of medical ethics based on classic liberal principles finds few special ethical obligations attending the occupation.33 Agreeing with Robert Sade that the relationship between doctor and patient is contractual in nature, and that the doctor's rights in such a relationship are symmetric with those of the patient,34 a physician can state, "I practice medicine and I find nothing in the enterprise that creates a special obligation to treat HIV-related illness." More to the point, a physician can say to a colleague, "You recognize an ethical obligation to treat, I do not. I argue that the practice of medicine itself
does not create such an obligation. Just as patients are free to choose doctors, I am free to decide whom to treat."
This is certainly the position taken by many physicians and some medical societies who assert that the practice of medicine does not entail treating all HIV seropositive patients.35 When coupled with a willingness to refer HIV seropositive patients to HIV clinics, this kind of behavior is not on face unvirtuous or unethical. These arguments, then, emphasize the negative freedom of the physician, to the detriment of the patient who is HIV seropositive and cannot find care.
Those ethicists and physicians who base their ethical duty to treat in a beneficence model seem to be unable to counter the negative freedom argument made by other physicians. Instead of pointing out its deficiencies, these ethicists appear only to recognize and lament the problems posed by the changing structure of the practice of medicine and the pluralism this creates. They rue the growth of the metaphor of medicine as business and the influences of pluralism on the liberal state. Indeed, it often sounds as though they would like to be rid of liberalism and instead base the state, as well as professional ethics, on heroic notions of virtue.
Medical ethics as just doctoring does not need to turn its back on the (real) liberal state. To the contrary, just doctoring arises out of and is compatible with modern liberalism, and this compatibility is revealed in its arguments about physicians' duties to treat patients infected with HIV.36
Since the just doctoring model of medical ethics takes as its first principle equal concern and respect for the sick, the "patient comes first" model, and since this principle is universalizable as to the class of all patients, it is unfathomable that physicians would refuse to care for patients simply because the patients are HIV seropositive. The history of medical ethics, and every notion of the physician's commitment to the patient, requires studied ambivalence toward the disease when one is called to care. Since the patient must come first, discrimination on the basis of illness is not a possibility.
Moreover, medicine constitutes a sphere within the liberal state, a sphere defined by physicians' altruism. Liberalism is dependent on this and other spheres to help bring about the sense of cooperation that unifies the state. Liberalism itself is based first and foremost on the notion of equal concern and respect. Therefore, even if physicians did not partake at all in the notion of altruism, the liberal state would probably require that their negative freedom be limited so that all
would receive care. The duty, to care defined by medical ethics obviates the need for the liberal state to take coercive steps to guarantee equal concern and respect for all patients regardless of their disease. It involves self-imposed limits on the physician's negative freedom for the good of patients.
The notion of health care as a sphere of moral activity that creates duties beyond those usually expected in the liberal state provides further grounds for the duty to treat. Since all physicians share the same set of duties to patients, moral imperatives are arguably as universalizable to the class of physicians as they are to the class of patients. Thus physicians owe duties not only to patients, but also to other physicians. In this regard, it would be grossly wrong for some physicians to refuse to undertake the risks associated with caring for HIV seropositive patients, forcing others to assume more risks. Physicians share equally in the requirements of the duty to demonstrate equal concern and respect for patients. This means they must all be willing to act altruistically, and to share in the risks presented by the care of those who are infected. Just doctoring prohibits free-riding by some physicians because health care is a particular good with moral principles that apply equally to all health care providers. In short, the social morality of medicine expressed as just doctoring extends beyond the public morality of the liberal state.
The requirements of just doctoring arc not, however, as open-ended as the duties specified by a beneficence model. In a beneficence theory, it is unclear what sort of risk might be too great to expect that physicians would serve unselfishly. More important, the beneficence approach to a duty to treat does not leave any room for self-regarding or prudent action by physicians. It does not allow physicians to argue that they should be compensated if they contract the virus in the line of duty or to consider mechanisms for dealing with HIV infection as an occupational disease.
Medical ethics as just doctoring remains within the confines of the liberal state. That is, while the social morality of medicine extends beyond the public morality of liberalism, it does not undermine it. Therefore physicians do retain some negative freedom. They voluntarily give up some portion of that freedom when they become health care providers and enter the moral structure of the health care sphere. The negative freedom of physicians is thus not extinguished, but it is diminished somewhat by the need to show the greatest possible re-
spect and concern for all individuals, to certify the equality at the heart of liberalism. However, doctors are still liberal citizens and they are not expected to be saints, to use George Annas's expression. Indeed, just doctoring allows physicians to consider, in a realistic fashion, those incentives that will enable them and their colleagues to undertake their ethical duty with as much support as possible.
What docs this amount to? Just doctoring, while reiterating the duty to treat, allows physicians to advocate measures that will support caregivers who do contract the virus. They can submit reforms to the representative democracy for its consideration. These reforms will probably center on means for compensation for HIV-related illness for health care workers. Thus just doctoring requires us to consider the available means for compensation through the law, again emphasizing the close relationship between medical ethics and the law.
It also allows health care workers to consider the various levels of risk that accompany different jobs. Since they face significantly higher risks, surgeons may expect greater protection from infection than other specialists, and may expect better assurance about compensation.
If a health worker contracts the HIV at his workplace, he will likely be seropositive for life, probably will develop AIDS, and could be disabled for a long period of time before dying,37 There will be tremendous costs associated with these accidents, both in economic and emotional terms.38 These are the costs that society must be prepared to shift from the injured party to other pockets.
The costs of accidents have traditionally been shifted from the injured to other "deep pockets" by insurance and the tort law.39 But for a variety of reasons, tort law will not provide much compensation to health workers infected with HIV at the workplace.40
The relative inapplicability of tort doctrine to HIV transmission accidents docs not foreclose the possibility of compensation for the injured worker. In fact, workplace injuries are typically compensated by an administrative approach called "workers' compensation" in most jurisdictions.41 Workers' compensation also has drawbacks as a means of shifting the cost of occupational HIV infection. One big drawback of workers' compensation is that the benefits are inadequate, especially in occupational disease cases.42 A further problem with death benefits, and indeed with all workers' compensation benefits, is that they are tied to the amount the person is earning at the time of injury. This will affect student nurses and physician members of the house staff, who
could expect higher incomes after completion of training. State legislatures can, however, increase compensation levels and create presumptions to overcome some of these problems.
Since workers' compensation is often inadequate, HIV infection also creates a need for health, disability, and life insurance. While more than 75 percent of Americans have some form of health insurance, and many have life insurance, far fewer have disability insurance.43 Most health care workers would not necessarily be covered for all the economic repercussions of an HIV infection. Hospitals could, however, broaden the coverage they offer as terms of employment, and provide health, disability, and life insurance for employees as a benefit. This would seem a prudent step for hospitals to take in the near future.
In return for providing low-cost insurance for health workers, insurers might require some form of testing for HIV antibody. They would fear, as might hospitals, that HIV seropositive individuals would seek health care employment as a result of attractive insurance policies available to workers. Thus, to qualify for an insurance plan, health care workers might first have to submit to testing. Current employees who tested positive would be removed from work that could infect patients but would suffer no loss of salary or benefits. The employees who tested negative would qualify for insurance, as would any new employees who tested negative. Prospective employees who tested positive would not be given jobs that have a demonstrated risk of infecting others. Those who refuse to test would not be subject to job discrimination, but would not qualify for special insurance benefits.
This kind of testing will probably be required to develop a workable insurance scheme for defraying the costs of occupational HIV infection. A plan along these lines seems appropriate if we are to shift effectively the costs of HIV occupational accident. Moreover, it is essential to a system that respects the negative freedom of physicians without diluting the duty to treat, and without diminishing the equal concern and respect owed every patient. It acknowledges the limits of physician altruism, as we must in the liberal state.
Of course, consideration of means of compensating physicians who contract HIV at the workplace must be part of efforts to reduce the risk of such transmission of the virus. Just doctoring requires that every effort be made to develop new means for avoiding transmission, and for ensuring that existing guidelines are careful followed.44 Prevention is a much better path than compensation for obvious reasons.
However, there will be accidents that cannot be avoided by universal precautions, and thus compensation policies cannot be ignored.45
Now some health care workers might argue that in addition to universal precautions, hospitals and health care workers should be allowed to test patients for HIV antibody, whether or not the patient requests testing.46 They argue that they would be able to protect themselves better if they knew the HIV status of every patient. While just doctoring allows physicians to consider means for maintaining their own negative freedom, it does so only if those means do not diminish the goal and principle of equal respect and concern for each patient. Thus any consideration of mandatory testing requires that physicians look broadly at the potential impact of such testing on patients. Once again, just doctoring requires analysis of concepts and issues at some distance from the doctor-patient relationship.