Chapter 7: The Challenge of AIDS

[1] Allan H. McCoid, "The Care Required of Medical Practitioners," Vanderbilt Law Review 12 (1959): 549-567.

[2] Arthur F. Southwick, The Law of Hospital and Health Care Administration (Ann Arbor: Health Administration Press, 1978), 97.

[3] Hammonds v. Aetna Casualty and Sur. Co., 237 F. Supp. 96, 98-9 (N.D. Ohio 1965).

[4] Payton v. Weaver, 131 Cal. App. 3d 38, 182 Cal. Rptr. 225, 229 (1982).

[5] McCulpin v. Bessmer, 241 Iowa 727, 43 N.W.2d 121 (1950); Ricks v. Budge, 91 Utah 307, 64 P.2d 208 (1937).

[6] Taunya L. Banks, "The Right to Medical Treatment," in AIDS and the Law, ed. Harlon Dalton and Scott Burris (New Haven: Yale University Press, 1986).

[7] The state of Washington has attempted to address this issue by requiring continuing medical education on HIV disease for all practitioners. This approach has been supported by primary care internists. See D. W. Northfelt, R. A. Hayward, and M. F. Shapiro, "The Acquired Immunodeficiency Syndrome is a Primary Care Disease," Annals of Internal Medicine 109 (1988): 773-775.

[8] George Annas, "Legal Risks and Responsibilities of Physicians in the AIDS Epidemic," Hastings Center Report 18 (1988): 26-32.

[9] Clark Havighurst, "The Changing Locus of Decision-making in the Health Care Sector," Journal of Health Policy, Politics and Law 11 (1986): 697-735.

[10] Manlove v. Wilmington General Hospital 174 A. 2d 135 (Del. 1961); Charles Dougherty, "The Right to Health Care: First Aid in the Emergency Room," Public Law Forum 4 (1984): 101-120; Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct. App. 1980).

[11] . Harper v. Baptist Medical Center, 341 So. 2d 133 (Ala. 1976).

[12] A. Schiff, H. Ansell, R. Schlossen, et al., "Transfers to Public Hospitals: A Prospective Study of 467 Patients," New England Journal of Medicine 314 (1986): 552-554; H. Treiger, "Preventing Patient Dumping: Sharpening the COBRA's Teeth," New York University Law Review 61 (1987): 1186-1206.

[13] Martin Hirsch, "The Rocky Road to Effective Treatment of Human Immunodeficiency Virus (HIV) Infection," Annals of Internal Medicine 110 (1989): 1-3.

[14] P. S. Arno, ct al., "Economic and Policy Implications of Early Intervention in HIV Disease," Journal of the American Medical Association 262 (1989): 1493-1498.

[15] M. E. St. Louis, K. J. Ranch, L. R. Peterson, et al., "Seroprevalence Rates of Human Immunodeficiency Virus Infection at Sentinel Hospitals in the United States," New England Journal of Medicine 323 (1990): 213-218.

[16] J. W. Curran, et al., "Epidemiology of HIV Infection and AIDS in the United States," Science 239 (1988): 610-616.

[17] G. C. Kelen, et al., "Unrecognized Human Immunodeficiency Virus Infection in Emergency Department Patients," New England Journal of Medicine 318 (1988): 1645-1650.

[18] J. W. Jason, et al., "HTLV-III/LAV Antibody and Immune Status of Household Contacts and Sexual Partners of Persons with Hemophilia," Journal of the American Medical Association 255 (1986): 212-215; G. H. Friedland, et al., "Lack of Transmission of HTLV-II/LAV Infection to Household Contacts of Patients with AIDS or AIDS-Related Complex with Oral Candidiasis," New England Journal of Medicine 314 (1986): 344-349.

[19] Update, "Human Immunodeficiency Virus Infections in Health Care Workers Exposed to Blood of Infected Patients," MMWR 36 (1987): 285-289.

[20] J. L. Baker, et al., "Unsuspected Human lmmunodeficiency Virus in Critically Ill Patients," JAMA 257 (1987): 2609-2611.

[21] T. Barker, "Physician Sues Johns Hopkins after Contracting AIDS," American Medical News, June 19, 1987, 20; T. Brennan, "The Acquired Immunodeficiency Syndrome as an Occupational Disease," Annals of Internal Medicine 107 (1987): 581-583.

[22] Prego v. City of New York, 141 Misc. 2d 709 (NY Sup. 1988), aff'd. 147 A.D. 2d 165 (N.Y. A.D. 2d Dept. 1989).

[23] Lynn Peterson, "AIDS: The Ethical Dilemma for Surgeons," Law, Medicine and Health Care, 17 (1989): 139-144.

[24] P. Vaught, "AIDS Clinic Being Weighed by Chicago Dental Society," New York Times 21 July 1987, B-2.

[25] K. Henry, S. Campbell, B. Jackson, et al., "Long Term Follow-Up of Health Care Workers with Work-Site Exposure to Human Immunodeficiency Virus," JAMA 263 (1990): 1765-1760.

[26] J. R. Allen, "Health Care Workers and Risk of HIV Transmission," Hastings Center Report 18 (1988): 2-5. See generally, C. Becker, ed., Occupational HIV Infection: Risks and Risk Reduction (Philadelphia: Hanley & Belfus, 1989).

[27] Carol M. Mangione, Steven R. Cummings, and Julie L. Gerberding, "Occupational Exposure to HIV Infection: Prevalence and Rates of Under-Reporting of Medical Housestaff," American Journal of Medicine. In press.

[28] See Julie Gerberding, et al., "Risk of Transmitting the Human Immunodeficiency Virus, Cytomegalovirus and Hepatitis B Virus to Health Care Workers Exposed to Patients with AIDS and AIDS-Related Conditions," Journal of Infectious Diseases 156 (1987): 1-8.

[29] B. Gerbert, et al., "Why Fear Persists: Health Care Professionals and AIDS," JAMA 260 (1988): 3481-3483.

[30] E. Emanuel, "Do Physicians Have an Obligation to Treat Patients with AIDS?" New England Journal of Medicine 318 (1988): 1686-1688.

[31] A. Zuger and S. H. Miles, "Physicians, AIDS and Occupational Risk: Historic Traditions and Ethical Obligations," JAMA 258 (1987): 1924-1928.

[32] J. D. Arras, "The Fragile Web of Responsibility: AIDS and the Duty to Treat," Hastings Center Report 18 (1988): 11-16.

[33] J. Reed and P. Evans, "The Deprofessionalization of Medicine: Causes, Effects and Responses," JAMA 258 (1987): 3279-3282.

[34] See R. Sade, "Medical Care as a Right: A Refutation," New England Journal of Medicine 285 (1971): 1288-1292.

[35] S. Staver, "Arizona Medical Doctors Can Refuse AIDS Patients," American Medical News (November 1987): 6.

[36] Others have sought alternative bases than beneficence for a duty to treat. See Edmund Pellegrino, "Ethical Obligations and AIDS," JAMA 258 (1987): 1957-1959.

[37] See H. W. Jaffe, et al., "The Acquired Immunodeficiency Syndrome in a Cohort of Homosexual Men. A Six Year Follow-up Study," Annals of Internal Medicine 103 (1985): 210-214.

[38] See A. M. Hardy, et al., "The Economic Impact of the First 10,000 Cases of Acquired Immunodeficiency Syndrome in the United States," JAMA 255 (1986): 209-211.

[39] See Guido Calabresi, The Costs of Accidents (New Haven: Yale University Press, 1970).

[40] Troyen A. Brennan, "Ensuring Access to Care for the Sick: The Challenge of the Acquired Immunodeficiency Syndrome as an Occupational Disease," Duke Law Journal (1988): 29-70.

[41] James Robert Chelius, Workplace Safety and Health: The Role of Workers' Compensation (Washington: American Enterprise Institute, 1977).

[42] Peter S. Barth and H. Allan Hunt, Workers' Compensation and Work-Related Illnesses and Diseases (Cambridge, Mass.: MIT Press, 1980).

[43] Kenneth Abraham, Distributing Risk (Princeton: Princeton University Press, 1986), 227.

[44] See C. E. Becker, J. E. Cone, and J. Gerberding, "Occupational Infection with Human lmmunodeficiency Virus (HIV): Risks and Risk-Reduction," Annals of Internal Medicine 110 (1989): 653-656.

[45] See Carol M. Mangione, et al., "Occupational Exposure to HIV Infection."

[46] See generally, Larry O. Gostin, "Hospitals, Health Care Professionals, and AIDS: The Right to Know the Health Status of Professionals and Patients," Maryland Law Review 48 (1989): 12-42.

[47] See J. M. Steckelberg and F. R. Cockerill, "Serologic Testing for Human Immunodeficiency Virus Antibodies," Mayo Clinic Proceedings 63 (1988): 373-380. AIDS testing usually involves use of two separate tests. There is usually a window period of up to three months after infection before the antibodies to the virus can be detected, although recent evidence suggests that some long-term carriers of the virus may test negative.

[48] See generally Milton C. Weinstein and Harvey Fineberg, Clinical Decision Analysis (Philadelphia: Saunders, 1980), 84-85.

[49] K. B. Meyers and S. G. Pauker, "Screening for HIV: Can We Afford the False Positive Rate?" New England Journal of Medicine 317 (1987): 238-241.

[50] G. D. Kelen, T. DiGiovanna, L. Bissou, et al., "Human Immunodeficiency Virus in Emergency Department Patients: Epidemiology, Clinical Presentations and Risk to Health." JAMA 262 (1989): 516-522.

[51] M. E. St. Louis, K. J. Ranch, L. R. Peterson, et al., "Seroprevalence Rates of Human Immunodeficiencies Virus Infection at Sentinel Hospitals in the United States," New England Journal of Medicine 323 (1990): 213-218.

[52] The emphasis here is on consent. One might support mandatory, testing, but still require that the patient be fully informed of all the risks of the test.

[53] D. Dyer, "Testing for HIV: The Medicolegal View," British Medical Journal 295 (1987): 871-872.

[54] Henry K. Willenbring and K. Crossley, "Human Immunodeficiency Virus Antibody Testing. A Description of Practices and Policies at U.S. Infectious Disease-Teaching Hospitals," JAMA 259 (1988): 1819-1822.

[55] Joel D. Howell, "What is the Difference Between an HIV and a CBC?" Hastings Center Report 18 (1988): 18-20.

[56] L. O. Gostin, "Hospitals, Health Care Professionals, and AIDS: TheRight to Know the Health Status of Professionals and Patients," Maryland Law Review 48 (1989): 12-54.

[57] Martin Hirsch, "The Rocky Road to Effective Treatment of Human Immunodeficiency Virus (HIV) Infection," Annals of Internal Medicine 110 (1989): 1-3.

[58] G. P. Schultz and M. Reuter, "AIDS Legislation in Missouri: An Analysis and a Proposal," Missouri Law Review 53 (1988): 599-621.

[59] Renslow Sherer, "Physicians Use of HIV Antibody Test. The Need for Consent, Counseling, Confidentiality and Caution," JAMA 259 (1988): 264-265.

[60] P. M. Marzuk, et al., "Increased Risk of Suicides in Persons with AIDS," JAMA 259 (1988): 1333-1337.

[61] M. Sherzer, "Insurance" in AIDS and the Law, ed. H. L. Dalton and S. Burris (New Haven: Yale University Press, 1987).

[62] A. S. Leonard, "AIDS in The Workplace," in AIDS and the Law, ed. Dalton and Burris.

[63] Note, "Preserving the Public Health: A Proposal to Quarantine Recalcitrant AIDS Carriers," Boston University Law Review 68 (1988): 415-470; See also E. S. Janus, "AIDS in the Law: Setting and Evaluating Threshold Standards for a Course in Public Health Intervention," William Mitchell Law Review 14 (1988): 504-573.

[64] This is not to say that in other nonliberal states, quarantine and other types of use of the police power might be acceptable. See R. Bayer and C. Helton, "Controlling AIDS in Cuba. The Logic of Quarantine," New EnglandJournal of Medicine 320 (1989): 1022-1024. The privacy rights that are based on interpretations of our Constitution are designed to maintain the individual's right to be free from governmental institution. See Griswold v. Connecticut, 381 U.S. 479 (1965).

[65] Note, "The Constitutional Implications of Mandatory Testing for Acquired Immunodeficiency Syndrome-AIDS," Emory Law Journal 37 (1988): 217-248.

[66] B. Mishu, W. Schaffner, J. M. Horan, et al., "A Surgeon with AIDS. Lack of Evidence of Transmission to Patients," JAMA 264 (1990): 467-470.

[67] Richard Knox, "Dentist Transmits HIV to Patient," Boston Globe, 29 July 1990, 16.

[68] Larry O. Gostin, "HIV Infected Physicians and the Practice of Seriously Invasive Procedures." Hastings Center Report 19 (1989): 32-39.

[69] K. B. Rothenberg and J. J. Potterat, "Strategies for Management of Sex Partners," in Sexually Transmitted Diseases, ed. K. K. Holmes, et al. (New York: McGraw-Hill International Book Company, 1984): 965-972.

[70] G. W. Rutherford and J. M. Woo, "Contact Tracing and the Control of Human Immunodeficiency Virus Infection," JAMA 259 (1988): 3609-3610.

[71] Larry O. Gostin, "Traditional Public Health Strategies," AIDS and the Law, ed. Dalton and Burris, 56.

[72] R. F. Wykoff, et al., "Contact Tracing to Identify Human Immunodeficiency Virus Infection in a Rural Community," JAMA 259 (1988): 3563-3566.

[73] P. E. Munday, et al., "Contact Tracing in Hepatitis B Infection," British Journal of Venereal Diseases 59 (1983): 314-316.

[74] T. A. Brennan, "Research Records, Litigation and Confidentiality: The Case of Research on Toxic Substances," IRB 4 (1983): 6-8.

[75] R. Winslade, "Confidentiality, of Medical Records," Journal of Legal Medicine 3 (1982): 497-533.

[76] Missouri General Statutes Sections 287. 140(5) et seq.

[77] McIntosh v. Milano 168 N.J. Super 466, 403 A.2d 500 (1979).

[78] Watts v. Cumberland County Hospital System, Inc., 330 S.E. 2d 242 (1985).

[79] Davis v. Rodman, 227 S.W. 612 (1921).

[80] 551 P.2d 334, 17 Cal. 3rd 425 (1976).

[81] Note, "Between a Rock and a Hard Place: AIDS and the Conflicting Physician's Duties of Preventing Disease Transmission and Safeguarding Confidentiality," Georgetown Law Journal 76 (1988): 169-202, fn 63.

[82] California Health and Safety Code Sec. 199.21(c) (West Supp., 1988).

[83] Massachusetts Gen. Laws, Chapter Ill, Section 70 F (1986).

[84] Anonymous, "State Health Officials Group Urges Adoption of Guarantees," AIDS Policy & Law 2 (1987): 1.

[85] See Henry T. Greely, "AIDS and the American Health Care Financing System," University of Pittsburgh Law Review 51 (1989): 73-163.