A thirty-two-year-old man with hemophilia whose chief complaint was knee pain was referred by his hematologist for consideration of a total knee arthroplasty. On his initial visit, the patient was seen and evaluated with his pregnant wife and their infant child present in the examination room at his request. During the review of systems and past medical history, the treating surgeon inquired into the status of his human immunodeficiency virus (HIV) viral load and CD4 count. At that point, the patient denied ever testing positive for HIV. Later, in a private discussion, the patient confirmed his HIV-positive status. He admitted that his wife was unaware of his history, and he stated that he did not wish her to know. The surgeon explained to the patient that his HIV history posed a major health risk to his wife and children and encouraged him to discuss it with her. The surgeon sought the advice of the institution's legal counsel. It was explained that, according to state law, the surgeon was not obliged to, but could, inform the patient's wife of the situation. At the next visit, the surgeon again asked the patient to discuss the situation with his spouse. The patient agreed to do so. To confirm that the information had been conveyed, the surgeon asked the patient to return with his wife to discuss the patient's HIV status and the informed consent pertinent to total knee arthroplasty. When the patient did not return, the surgeon notified the referring hematologist of the situation.
1Capital Area Orthopedic Associates, LLC, 16 North La Plata Court, La Plata, MD 20646
2c/o Elaine P. Henze, BJ, ELS, Medical Editor and Director, Editorial Services, Department of Orthopaedic Surgery, Johns Hopkins Bayview Medical Center, 4940 Eastern Avenue, #A665, Baltimore, MD 21224-2780. E-mail address for E.P. Henze: email@example.com
3Rubin Institute, Sinai Hospital, 2401 West Belvedere Avenue, Baltimore, MD 21215
Before any surgical intervention, the risks posed by various systemic conditions (in this case, hemophilia and HIV) need to be assessed. Sound medical judgment and informed consent are imperative for the patient to understand the potential complications of any procedure1.
Rarely do orthopaedic surgeons find themselves in a position requiring them to counsel patients on communicable diseases and the risks to their families or partners. The ethical concerns of this particular case, the legal obligations of a treating physician, and third-party disclosure are discussed.
This case presents many ethical concerns. Patient confidentiality and respecting the wishes of a patient are essential. It is the duty of the treating physician to treat the patient appropriately and without judgment toward the patient's conditions or beliefs. However, in this case, the physician is in a difficult situation because the actions of the patient are directly placing others in jeopardy. Is the health of the spouse, child, and unborn child of this patient now the concern of the orthopaedic surgeon? Although a health-care provider may feel a moral obligation to disclose a patient's condition to those at risk, the actions should not be influenced by personal conviction.
It is the duty of the physician faced with such a circumstance to educate and counsel the patient on the importance of disclosing the risks to others who may be harmed. If the orthopaedic surgeon does not feel qualified to do this, the assistance of another provider who may have more experience and a more established relationship with the patient should be sought. In this case, the patient's hematologist was notified. If the patient voluntarily chooses to inform others at risk, the physician-patient relationship is maintained and the third party is appropriately notified. As a health-care provider, this is the simplest remedy to such a dilemma.
If the patient refuses, legal advice should be used to govern the physician's actions. In our state of Maryland, physicians are allowed to warn a third party who is at risk. In this case, the patient was still given the opportunity to address this himself; however, particularly because of his wife's pregnancy, we wished to confirm that the discussion had occurred. When the patient did not return, we attempted to contact him. The referring service was notified both to seek their help in the situation and to inform them of the lack of follow-up for this patient's orthopaedic condition. Fortunately, the patient did not have an acute orthopaedic problem that needed urgent attention. Had that been the case, treatment should have been initiated and these issues addressed at a later time.
When, as in this case, the patient is unwilling to inform others who may be at risk, the next course of action in disclosure is dictated by state statutes (see Appendix).
History of Disclosure
The topic of disclosure has been a controversial issue since the HIV and acquired immune deficiency syndrome (AIDS) epidemic surfaced in the 1980s. However, the so-called “duty-to-warn” principle in the medical bioethics literature precedes the history of AIDS in the United States2. Some early legal cases in the United States found that physicians were obligated to protect third parties who are at risk for contracting contagious diseases from their patients, such as in the case of Wojcik v. Aluminum Company of America (1959) regarding tuberculosis3. Perhaps the most influential case in U.S. history that shaped the duty-to-warn principle was the 1976 case of Tarasoff v. Regents of the University of California4. It concluded that psychotherapists, if suspecting serious danger of violence to a third party from a patient under their care, have a responsibility to take steps to protect the intended victim. The legal system has upheld these principles with regard to deliberate and overtly violent acts2. However, the circumstances related to communicable diseases are somewhat different because of varying degrees of risk and controversy regarding whether there is intent to harm.
Government-mandated reporting of sexually transmitted diseases has a history dating back to the federal antivenereal disease program instituted by Surgeon General Thomas Parran in 19364. Such programs were used in the 1940s and 1950s to control the prevalence of syphilis, gonorrhea, hepatitis B, and other communicable diseases. Protocols to guide notification of at-risk third-party individuals were a component of these government initiatives. However, because of intense controversy regarding the social stigma associated with the diagnosis of HIV-AIDS at the beginning of the epidemic, such programs were avoided by the government and were fiercely opposed by advocacy groups4. Because of the fear of prejudice and discrimination after HIV-AIDS disclosure, individual civil liberties have been historically favored over public health policy.
Current Guidelines on Disclosure
The effectiveness of current antiretroviral therapies and the advent of rapid blood testing for HIV status have more recently changed the opinion of some medical professional groups and lawmakers regarding HIV testing. For example, the 2006 U.S. Centers for Disease Control and Prevention guidelines recommend that screening become part of routine prenatal testing unless the woman declines5. These recommendations stem from evidence regarding the dramatic reduction in perinatal transmission rates with prophylactic treatment5.
Notification of individuals at risk is a challenging dilemma because fundamental bioethical principles are in opposition: strict respect for the privacy of HIV-positive patients can lead to injury to their sexual partner or other at-risk individuals. The dilemma posed by maintaining patient confidentiality at the expense of protecting individuals from nonconsensual exposure is underscored by the wide disparity in state laws regarding this issue.
In the United States, the state government has the primary responsibility for public health measures and infectious disease control. Therefore, laws regarding a physician's disclosure of a patient's HIV status vary from state to state6. Currently, all states and the District of Columbia have active legislation that contains statements regarding third-party notification (see Appendix). Most of this legislation is considered as guidelines regarding what is permissible by the treating physician, rather than as mandates for specific action. Current state legislation can be divided into four broadly defined categories: (1) affirmative duty to warn, (2) permissive disclosure, (3) disclosure by petition, and (4) disclosure by local or state health boards only (direct third-party notification by the physician is prohibited). These categories provide a general framework for partner notification. The legislation in some states is written solely in reference to HIV, whereas other state legislation is inclusive of other communicable diseases.
Affirmative Duty to Warn
Currently, Michigan is the only state with an in-place policy of affirmative duty to warn. According to Michigan law, a physician who believes a third party to be at risk of HIV exposure has a legal responsibility to intervene by notification of the third party. The physician may discharge this responsibility by referring the case to the appropriate local health board, thereby transferring affirmative duty.
More commonly, states have enacted policies that can be classified as “permissive disclosure” rather than an affirmative duty to warn. Permissive disclosure allows a physician to notify those individuals who he or she believes are at high or imminent risk of exposure.
Disclosure by Petition
In “disclosure by petition,” the physician may contact the state (through the local or state health board) to petition to notify individuals at risk. Some states have well-defined processes by which the petition and notification proceedings occur. Disclosure of the source of possible exposure may or may not be divulged explicitly to the individual, depending on the state.
Disclosure by Local or State Health Boards Only (Direct Disclosure by Physician to Third Party Prohibited)
Some states prohibit a physician from notifying at-risk third parties. Instead, the law mandates that the physician notify members of the state or local health boards, who then take responsibility for the process by which at-risk third parties are notified.
Certainly most professional medical organizations, including the American Medical Association, recommend that physicians encourage patients to disclose their HIV status to their partner at risk7. Physicians should counsel patients or provide a means for counseling regarding this task. When a patient refuses to disclose his or her HIV status to a third party whom the physician deems to be at risk, the provider needs to refer to state statutes or guidelines. At most institutions, advice can be obtained by consulting the legal department.
A table listing legislation, state by state, regarding third-party notification is available with the electronic version of this article, on our web site at jbjs.org (go to the article citation and click on “Supplementary Material”) and on our quarterly CD/DVD (call our subscription department, at 781-449-9780, to order the CD or DVD).
Disclosure: The authors did not receive any outside funding or grants in support of their research for or preparation of this work. Neither they nor a member of their immediate families received payments or other benefits or a commitment or agreement to provide such benefits from a commercial entity.
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