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Behringer v.The Mdicial Center at Princeton (592 A.2d 1251) 1991

Superior Court of New Jersey, Law Division

Plaintiff, William H. Behringer, was a patient at defendant Medical Center at Princeton (the Medical Center) when on June 17, 1987, he tested positive for the Human Immunodeficiency Virus (HIV), and combined with Pneumocystis Carinii Pneumonia (PCP), was diagnosed as suffering from Acquired Immunodeficiency Syndrome (AIDS). At the time, plaintiff, an otolaryngologist (ENT) and plastic surgeon, was also a member of the staff at the Medical Center. Within hours of his discharge from the Medical Center on June 18, 1987, plaintiff received numerous phone calls from well-wishers indicating a concern for his welfare but also demonstrating an awareness of his illness. Most of these callers were also members of the medical staff at the Medical Center. Other calls were received from friends in the community Within days, similar calls were received from patients. Within a few weeks of his diagnosis, plaintiff's surgical privileges at the Medical Center were suspended. From the date of his diagnosis until his death on July 2, 1989, plaintiff did not perform any further surgery at the Medical Center, his practice declined and he suffered both emotionally and financially.

Plaintiff brings this action seeking damages for 1) breach of the Medical Center's and named employees' duty to maintain confidentiality of plaintiff's diagnosis and test results, and 2) violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., as a result of the imposition of conditions on plaintiff's continued performance of surgical procedures at the Medical Center, revocation of plaintiff's surgical privileges and breach of confidentiality. Defendant denies any breach of confidentiality and asserts that any action by the Medical Center was proper and not a violation of N.J.S.A. 10:5-1 et seq.

This case raises novel issues of a hospital's obligation to protect the confidentiality of an AIDS diagnosis of a health care worker, as well as a hospital's right to regulate and restrict the surgical activities of an HIV positive doctor. This case addresses the apparent conflict between a doctor's rights under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and a patient's "right to know" under the doctrine of "informed consent." This case explores the competing interests of a surgeon with AIDS, his patients, the hospital at which he practices and the hospital's medical and dental staff.

After a bench trial and consideration of the evidence presented, this Court makes findings of fact and conclusions of law as set forth below.

To summarize, this Court holds:

1. The Medical Center breached its duty of confidentiality to plaintiff, as a patient when it failed to take reasonable precautions regarding plaintiff's medical records to prevent plaintiff's AIDS diagnosis from becoming a matter of public knowledge.

2. Plaintiff, as an AIDS-afflicted surgeon with surgical privileges at the Medical Center, was protected by the Law Against Discrimination. N.J.S.A. 10:5-1 et seq.

3. The Medical Center met its burden of establishing that its policy of temporarily suspending and, thereafter, restricting plaintiff's surgical privileges was substantially justified by a reasonable probability of harm to the patient.

4. The "risk of harm" to the patient includes not only the actual transmission of HIV from surgeon to patient but the risk of a surgical accident, i.e., a scalpel cut or needle stick, which may subject the patient to post-surgery HIV testing.

5. Defendant Medical Center, as a condition of vacating the temporary suspension of plaintiff's surgical privileges, properly required the plaintiff, as a physician with a positive diagnosis of AIDS, to secure informed consent from any surgical patients.

6. The Medical Center's policy of restricting surgical privileges of health care providers who pose "any risk of HIV transmission to the patient" was a reasonable exercise of the Medical Center's authority as applied to the facts of this case, where plaintiff was an AIDS-positive surgeon….

Plaintiff's concern about public knowledge of the diagnosis was not misplaced. Upon his arrival home, plaintiff and his companion received a series of phone calls. Calls were received from various doctors who practiced at the Medical Center with plaintiff. All doctors, in addition to being professional colleagues, were social friends, but none were involved with the care and treatment of plaintiff. All indicated in various ways that they were aware of the diagnosis. Statements were made either directly to plaintiff's companion or by insinuation, such as an inquiry as to whether the companion was "tested." She did not deny references to the diagnosis but admits that she "tacitly acknowledged the diagnosis in one instance by silence." During the evening of June 18, she received a call from social non-medical friends who indicated their knowledge of the diagnosis and expressed support to her and plaintiff. She indicated that the relationships with various neighbors and friends changed as a result of the diagnosis. There was less social contact and communication and what she perceived as a significant diminution in the popularity of plaintiff.

Plaintiff's condition and the growing awareness of that condition in the community impacted upon not only plaintiff's social relationships but, more significantly, on his practice as well. In July, 1987, plaintiff returned to his office practice. During his short absence from his office and in the ensuing months, calls were received at his practice from doctors and patients alike who indicated an awareness of plaintiff's condition and in many cases, requested transfer of files or indicated no further interest in being treated by plaintiff. At one point plaintiff's companion instructed Jeannie Weinstein, plaintiff's receptionist, not to confirm any information regarding AIDS, and "instruct patients that plaintiff did not have AIDS." Over an extended period of time, the practice diminished as more of plaintiff's patients became aware of his condition….

The Medical Center's reaction to plaintiff's condition was swift and initially precise. Upon learning of plaintiff's diagnosis from the Chief of Nursing, the President of the Medical Center, defendant Dennis Doody (Doody), immediately directed the cancellation of plaintiff's pending surgical cases. This initial decision was made with little information or knowledge of potential transmission of the disease; thereafter, the Chairman of the Department of Surgery, having privately researched the issue, reached a contrary result and urged that plaintiff could resume his surgical practice. The Medical Center procedure for suspending a physician's surgical privileges provides for summary suspension by a vote of the Department chair, President of the Medical Center, President of the Medical and Dental Staff, Chairman of the Board of Trustees, and the physician in charge of the service. While Doody was defeated in a vote for summary suspension, the surgery remained cancelled, and the matter was ultimately brought before the Board of Trustees.

Doody's motivation in seeking the suspension of surgical privileges was described as one of concern for patients but also, and perhaps more important, concern for the Medical Center and its potential liability. Little was known about the dilemma now facing the Medical Center. In any event, plaintiff's surgical privileges were cancelled and would never, during plaintiff's life, be reinstated.

During the ensuing months, the Medical Center embarked on a torturous journey which shifted course as views were explored and, ultimately, a consensus reached between the Medical and Dental Staff, hospital administration and the Board of Trustees.

On July 2, 1987, plaintiff privately informed the Chairman of the Department of Surgery at the Medical Center of his medical condition. Plaintiff felt that the Chairman of his department should know of his health status and informed the chair that plaintiff wished to continue to practice, including performing surgery.

Doody called a Special Meeting of the Executive Committee of the Medical and Dental Staff which took place on July 13, 1987. The Medical and Dental Staff is a body of physicians and dentists operating under the aegis of the Board of Trustees of the hospital. The Board approves the Staff's by-laws and retains ultimate decision-making authority. At this meeting, the Executive Committee passed a motion holding that "HIV positivity alone is not a reason for restricting a Health Care Worker from [the performance of] invasive procedures on the basis of data currently available." Defendant Doody, the lone dissenter, admittedly presented no scientific or medical basis for disagreeing with the Committee's recommendation. Both the medical literature from the Centers for Disease Control (CDC) and other authorities that were discussed, as well as defendant Medical Center's staff epidemiologist noted that there were no known cases of transmission of HIV from a health care worker (HCW) to a patient. Later, however, the epidemiologist recommended to defendant Doody that an HIV-infected surgeon should not operate. Defendant Doody acknowledged at trial, and believed at the time of the Special Meeting, that the CDC was "the number one resource on infectious disease in the United States."

A second meeting of the Executive Committee of the Medical and Dental Staff was held on July 16, 1987 to continue discussing the issues raised by plaintiff's medical condition. The Committee maintained its recommendations that, based on all available, current scientific information, a surgeon with AIDS or one who is HIV-positive should retain all of his privileges, should be subject to careful monitoring for competence and should follow CDC-recommended precautions for invasive procedures. At this meeting, the physicians who were present concluded that there was no risk of transmission that would require an HIV-positive surgeon to disclose that fact to a patient as part of informed consent. However, Doody and the Medical Center's legal counsel offered the opinion that despite the absence of reported cases of transmission from HCW to patient, a physician's HIV-positive status should be divulged in any informed consent form because of "legal and social considerations." The Committee concluded that a full meeting of the Board of Trustees was necessary to resolve the issue.

A special meeting of the Board of Trustees was held on July 20, 1987. At this meeting the Board of Trustees was addressed by the Chairman of the Department of Surgery, the Medical Center's staff epidemiologist, as well as physicians comprising the Executive Committee of the Medical and Dental Staff, who reiterated that no cases of HIV transmission from HCW to patient had ever been reported. At the meeting, the issue of informed consent was discussed at length. All members of the Board of Trustees were provided with a packet of information that included current CDC statements regarding performance of invasive procedures by HCW's and copies of the Minutes of the Medical and Dental Staff Executive Committee meetings, including a letter from the staff to the Board setting forth the staff's position. Doody and the Board were also informed that CDC-recommended operating room precautions were expected to prevent HIV transmission. The Board of Trustees was told that the CDC recommended individualized decision-making for HIV-positive HCWs, suggesting that decisions regarding continued practice by an HIV-positive physician should be made on a case-by-case basis. Doody expressed concern about the hospital's reputation as well as potential litigation given public fear of AIDS. After consideration of all of the information presented, the Board voted to require the use of a special "informed consent form" to be presented to patients about to undergo surgery by HIV-positive surgeons. The form read as follows:

THE MEDICAL CENTER AT PRINCETON, NEW JERSEY

SUPPLEMENTAL CONSENT FOR OPERATIVE AND/OR

INVASIVE PROCEDURE

I have on this date executed a consent, which is attached hereto, for (Procedure) to be performed by Dr. ----------------. In addition, I have also been informed by Dr. ----------------, that he has a positive blood test indicative of infection with HIV (Human Immunodeficiency Virus) which is the cause of AIDS. I have also been informed of the potential risk of transmission of the virus. (witness) (signature of patient)

All parties recognized that in the absence of patients willing to undergo invasive procedures by HIV-positive surgeons, this was a "de facto prohibition" from surgical practice. Subsequent to the July 20, 1987 meeting of the Board of Trustees, various committees met as the issues concerning HIV-positivity and HCWs continued to be discussed at the Medical Center. To further explore the issues, three meetings of the Joint Conference Committee of the Board of Trustees and the Medical and Dental Staff were held and are especially noteworthy. These meetings occurred on October 29, 1987, November 19, 1987, and December 17, 1987. At the first meeting, the epidemiologist spoke about the medical information available concerning the issue of an HIV-positive surgeon performing invasive procedures. At the second meeting, Robert Cassidy, Ph.D., an ethicist and a member of the faculty of the Robert Wood Johnson Medical School, discussed the legal requirements for informed consent in New Jersey. At the third meeting, Paul Armstrong, Esquire, presented the report of the Council on Ethical and Judicial Affairs of the American Medical Association, which deals with the issue of AIDS in the health care environment. The American Medical Association report contains among its recommendations the following:

The Council's new opinion on PHYSICIANS AND INFECTIOUS DISEASES is:

A physician who knows that he or she has an infectious disease should not engage in any activity that creates a risk of transmission of the disease to others.

In the context of the AIDS crisis, the application of the Council's opinion depends on the activity in which the physician wishes to engage.

The Council on Ethical and Judicial Affairs reiterates and reaffirms the AMA's strong belief that AIDS victims and those who are seropositive should not be treated unfairly or suffer from discrimination. However, in the special context of the provision of medical care, the Council believes that if a risk of transmission of an infectious disease from a physician to a patient exists, disclosure of that risk to patients is not enough; patients are entitled to expect that their physicians will not increase their exposure to the risk of contracting an infectious disease, even minimally. If no risk exists, disclosure of the physicians's medical condition to his or her patients will serve no rational purpose; if a risk does exist, the physician should not engage in the activity.

Mr. Armstrong concluded his remarks by stating that the above provided a standard with regard to HCWs with HIV seropositivity or AIDS which had not existed prior to its promulgation.

At the conclusion of the meeting on December 17, 1987, it was suggested that if the Board of Trustees was to change its policy regarding HIV-positive surgeons, the impetus for such change should come from the Medical and Dental Staff. The President of the Medical and Dental Staff agreed that the issue would be addressed at the January meeting of the staff's Executive Committee.

At its January 25, 1988 meeting, the staff's Executive Committee, after lengthy discussion, recommended that the following policy be adopted by the Board of Trustees:

1. The Medical Center at Princeton Medical and Dental Staff will continue to care for patients with AIDS without discrimination.

2. A physician or Health Care provider with known HIV seropositivity will continue to treat patients at the Medical Center at Princeton, but will not perform procedures that pose any risk of virus transmission to the patient.

This policy was proposed to the entire Medical and Dental Staff, and on February 11, 1988, a meeting of the full Medical and Dental Staff was held, at which time this new policy regarding HIV seropositive surgeons was discussed. A recommendation was forwarded to the Board of Trustees that this two-part policy be adopted.

On June 27, 1988, the Board of Trustees met and, after questions and discussions, adopted the following policy for HIV seropositive health care workers:

POLICY FOR HIV SEROPOSITIVE HEALTH CARE WORKERS

1. The Medical Center at Princeton Medical and Dental Staff shall continue to care for patients with AIDS without discrimination.

2. A physician or health care provider with known HIV seropositivity may continue to treat patients at The Medical Center at Princeton, but shall not perform procedures that pose any risk of HIV transmission to the patient.

This policy included a procedure for the recredentialling of physicians. Although the policy was adopted, the Board did not change its prior requirement that a physician obtain written informed consent from the patient prior to the performance of surgical procedures.

Plaintiff's privileges, as a "potential risk," were ultimately suspended under this policy, and no action was taken by him challenging the policy or seeking recredentialling under the policy.

Following his diagnosis of AIDS, plaintiff never again performed surgery at the Medical Center….

Plaintiff's medical chart was kept at the nurses' station on the floor on which plaintiff was an inpatient. Not only was the HIV result charted, but his AIDS diagnosis was noted at numerous places therein. No effort was made to keep knowledge of this diagnosis limited to persons involved in plaintiff's care. There was no written or verbal restriction against any HCW involved in plaintiff's care discussing plaintiff's diagnosis with other Medical Center employees. Employees not involved in his care did learn of plaintiff's diagnosis. Employees of the Medical Center who had been plaintiff's patients ceased going to him for medical services. Given the significance of a physician-patient with a diagnosis of AIDS and the lack of special procedures directed at securing confidentiality, the inevitable happened. As noted earlier, within hours of the diagnosis, word of plaintiff's illness was "on the street." Any suggestion of subsequent breaches of confidentiality are superfluous….

[Expert witnesses] based their conflicting opinions on the following common data:

1) A British study revealed that there were 112 needle-stick and scalpel cuts in 2,000 reported operations, (5%).

2) The CDC has reported nine cases of transmission of HIV from patient to CDC.

3) A risk of transmission of HIV from HCW to patient of 0.5% or less is a quantifiable risk.

4) As of June, 1989, the date of plaintiff's death, there was no reported case of transmission of HIV from HCW to patient.

5) Once contracted, AIDS is fatal usually within two years.

As to the effect of these studies and facts, the experts sharply disagree. Dr. Selwyn opined that there was no reasonable medical or scientific basis for defendant's decision restricting plaintiff's surgical privileges which, Selwyn claims, was based on unfounded fears of HIV transmission as a potential area for litigation against the hospital….

While Dr. Selwyn noted the similarities between HIV and Hepatitis B transmission, he indicated that there were no restrictions placed on Hepatitis B-positive doctors performing invasive procedures; however, the record is absent any facts indicating any cases of Hepatitis B-positive doctors performing any invasive procedure at the Medical Center. In this regard, Dr. Selwyn did note that such matters as surgeon's wound infection rates or a history of substance abuse would be critical to a patient's knowledge of the risks attendant to a surgical procedure, but no informed consent requirements have been imposed on physicians anywhere which require the physician to inform patients of such risks.

Dr. Selwyn observed that even assuming that an HIV-positive physician nicked a finger during surgery and a drop of the physician's blood fell into the patient, the risk of that patient contracting HIV is less than one-half of one percent. Dr. Selwyn explained that the actual risk of ultimate transmission is diluted by the probability of a series of events happening, all of which would be necessary before exposure occurs. Whether an injury occurs, whether it occurs within range of the patient's blood, whether the surgeon's blood makes its way out from beneath two layers of gloves, and whether there is then a transmission of the surgeon's blood into the patient's blood, are all independent events that geometrically reduce the chance of blood-to-blood contact. This reduces the less than one-half of one percent chance of infection associated with contact. Dr. Day conceded that the chance of all these events occuring in a procedure was .0025%. Dr. Selwyn added that the risk factor was affected by the nature of the surgery performed, e.g., orthopedic surgeons or gynecological surgeons operating in some areas by "feel" bear a higher risk of accident than do surgeons such as ENT specialists….

Dr. Selwyn felt that an informed consent requirement was inappropriate. He testified that while a patient might "want" to know the health status of the physician, the risk was not so significant that a patient would "need" to know the information. He did not feel this was a "risk within a reasonable medical opinion." Dr. Selwyn concluded that only risks "within a reasonable medical opinion" were necessarily divulged to a patient. Although internal review by doctors' clinical supervisors has been used satisfactorily in other instances where doctors have medical problems, the Medical Center took no such steps in this case….

Plaintiff asserts that the Medical Center, Doody and Lee breached a duty of confidentiality in failing to restrict access to plaintiff's medical records, thus causing widespread and improper dissemination of information about plaintiff's medical condition. Plaintiff argues that as a result of this breach of confidentiality, his ability to practice was impaired so significantly that his medical practice was damaged, if not destroyed. Plaintiff's confidentiality-based claims arise out of his status as a patient. While plaintiff was unable to identify specifically the actual sources of the disclosure of his diagnosis, he argues that the Medical Center's failure to implement meaningful restrictions on access to his medical records is sufficient to establish liability. In sum, he urges that the failure of the Medical Center to take reasonable precautions regarding access to his records establishes liability. Defendants argue that any disclosure by its employees or others outside of its control is beyond its responsibility and cannot be the basis of liability.

The physician-patient privilege has a strong tradition in New Jersey. The privilege imposes an obligation on the physician to maintain the confidentiality of a patient's communications. Stempler v. Speidell, (1985). This obligation of confidentiality applies to patient records and information and applies not only to physicians but to hospitals as well. Unick v. Kessler Memorial Hosp., (1969). This duty of confidentiality has been the subject of legislative codification which reflects the public policy of this State. The patient must be able "to secure medical services without fear of betrayal and unwarranted embarrassing and detrimental disclosure. . . ." Piller v. Kovarsky. The privacy right on which the privilege is based has been held to a level warranting constitutional protection. See United States v. Westinghouse; Doe v. Barrington.

Notwithstanding the strong policy in favor of the physician-patient privilege and the ensuing obligation of confidentiality, exceptions to the privilege have been widely recognized. In Hague v. Williams (1962), which predates N.J.S.A. 2A:84A-22.1 et. seq., plaintiff claimed damages as a result of the disclosure of a child's condition to an insurance carrier. The Supreme Court noted both a "public interest" and a "private interest of the patient" exception to the privilege. In McIntosh v. Milano (1979) Judge Petrella discussed the concept of the "duty to warn" third parties as an exception to the general rule of confidentiality. McIntosh noted that the Principles of Medical Ethics recognizes the non-absolute nature of the obligation of confidentiality.

A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare or the individual or of the community….

An additional exception to the concept of confidentiality is a physician's or hospital's statutory obligation to report contagious diseases to health authorities. N.J.S.A. 26:4-15 requires that "every physician shall, within 12 hours after his diagnosis that a person is ill or infected with a communicable disease . . . report such diagnosis and such related information as may be required by the State Department of Health." N.J.S.A. 26:4-19 similarly requires that the supervisor of a public or private institution report to the local health board any diagnosis of a contagious disease made within the institution. N.J.A.C. 8:57-1.3 sets forth a list of communicable diseases reportable by physicians. The list was amended in 1983, effective March 7, 1982, to require that patients diagnosed with PCP -- plaintiff's diagnosed condition -- be reported to the New Jersey Department of Health.

Certainly, a most apparent exception to the general rule of confidentiality is the implied right to make available to others involved in the patient's care information necessary to that care. Plaintiff does not argue that the legitimate disclosure of his medical information under this patient care exception is a basis of his cause of action. Both N.J.S.A. 2A:84A-22.2 and the recently enacted provisions of N.J.S.A. 26:5C-8 (which postdate the events in this matter) allow for the dissemination of a patient's records and information….

The present day public perception of AIDS was an important consideration in the adoption and implementation of procedures established by the Department of Health and the Medical Center. The impact of the public perception has been widely recognized.

Individuals infected with HIV, whether HCP [health care professional] or patient, are concerned with maintaining the confidentiality of their health status. HIV infection is associated with sexual practice and drug use, universally regarded as personal and sensitive activities. In addition, the majority of people infected with HIV in the United States are members of groups that are traditionally disfavored. Even before the AIDS epidemic, gays and intravenous (IV) drug users were subject to persistent prejudice and discrimination. AIDS brings with it a special stigma. Attitude surveys show that even though most Americans understand the modes through which HIV is spread, a significant minority still would exclude those who are HIV-positive from schools, public accommodations, and the workplace. Unauthorized disclosure of a person's serologic status can lead to social opprobrium among family and friends, as well as loss of mployment, housing and insurance….

Insuring confidentiality even by Medical Center employees required more, in the present case, than simply instructing employees that medical records are confidential. The charts are kept under the control of the Medical Center with full knowledge of the accessibility of such charts to virtually all Medical Center personnel whether authorized or not. Little, if any, action was taken to establish any policy or procedure for dealing with a chart such as plaintiff's….

The sensitive nature of medical information about AIDS makes a compelling argument for keeping this information confidential. Society's moral judgments about the high-risk activities associated with the disease, including sexual relations and drug use, make the information of the most personal kind. Also, the privacy interest in one's exposure to the AIDS virus is even greater than one's privacy interest in ordinary medical records because of the stigma that attaches with the disease. The potential for harm in the event of a nonconsensual disclosure is substantial; ...

Because the stakes are so high in the case of a physician being treated at his own hospital, it is imperative that the hospital take reasonable steps to insure the confidentiality of not only an HIV test result, but a diagnosis which is conclusive of AIDS, such as PCP. These precautions may include a securing of the chart, with access only to those HCWs demonstrating to designated record-keepers a bona-fide need to know, or utilizing sequestration procedures for those portions of the record containing such information….

This Court holds that the failure of the Medical Center and Lee as Director of the Department of Laboratories, who were together responsible for developing the misstated Informed Consent form, the counselling procedure and implementation of the charting protocol, to take reasonable steps to maintain the confidentiality of plaintiff's medical records, while plaintiff was a patient, was a breach of the Medical Center's duty and obligation to keep such records confidential. The Medical Center is liable for damages caused by this breach….

The Supreme Court has set forth several standards which must be considered by a court reviewing hospital actions and policies. In Desai v. St. Barnabas Medical Center, the Supreme Court noted that if a hospital policy decision reasonably serves an "evident public health purpose," it will be sustained notwithstanding that the ultimate effect of the policy may be discriminatory. Id. at 91. Notwithstanding the narrow standard of review articulated in Desai, the Supreme Court in Nanavati v. Burdette Tomlin Mem. Hosp., emphasized the importance of scrutinizing such policy when its effect is the revocation of staff privileges….

The ultimate resolution reached by the Medical Center restricting invasive procedures where there is "any risk to the patient," coupled with informed consent, implicates serious policy considerations which must be explored. It is axiomatic that physicians performing invasive procedures should not knowingly place a patient at risk because of the physician's physical condition. Gostin, HIV-Infected Physicians, supra p. 46, at 34. The policy adopted by the Medical Center barring "any procedures that pose any risk of virus transmission to the patient" appears to preclude, on its face, the necessity of an informed consent form; if there is "any risk" the procedure cannot be performed. The problem created by the "any risk" standard is best evidenced by the facts of this case. When Doody made his initial decision to cancel plaintiff's scheduled surgical procedures, he did so over the objection of both the President of the Medical and Dental Staff as well as the Chairman of the Department of Surgery. In fact, the Chairman went so far as to write:
. . . I have done some reading, research into this the past several months. From all I can find a doctor, surgeon, with AIDS cannot give this to his patient as long as usual precautions are taken . . . while operating. I believe he should be allowed to carry on as long as his general health status allows. I will admit him in surgery when possible if he desires.

Reasonable persons professing knowledge of the subject matter may differ as to whether there is "any" risk involved in an invasive surgical procedure by a surgeon carrying a disease that will lead to his death and, if transmitted during the surgical procedure, to the death of the patient….

Before a physician may perform a surgical or invasive procedure upon a patient, he must obtain the patient's informed consent.

[Informed consent] is essentially a negligence concept, predicated on the duty of a physician to disclose to a patient such information as will enable the patient to make an evaluation of the nature of the treatment and of any attendant substantial risks, as well as of available options in the form of alternative therapies….

The physician exposing the patient to a course of treatment has a duty to explain, in terms understandable to the patient, what the physician proposes to do. The purpose of this legal requirement is to protect each person's right to self-determination in matters of medical treatment. See In re Farrell (1987). The physician's duty is to explain, in words the patient can understand, that medical information and those risks which are material. Medical information or a risk of a medical procedure is material when a reasonable patient would be likely to attach significance to it in deciding whether or not to submit to the treatment.

Taking into account what the physician knows or should know to be the patient's informational needs, the physician must make reasonable disclosure of the information and those risks which a reasonably prudent patient would consider material or significant in making the decision about what course of treatment, if any, to accept. Such information would generally include a description of the patient's physical condition, the purposes and advantages of the proposed surgery, the material risks of the proposed surgery, and the material risks if such surgery is not provided. In addition, the physician should discuss all available options or alternatives and their advantages and risks.

Plaintiff argues: 1) the risk of transmission of HIV from surgeon to patient is too remote to require informed consent, and 2) the law of informed consent does not require disclosure of the condition of the surgeon.

Both parties focus on the risk of transmission and results therefrom in applying the two standards raised in plaintiff's claim under the LAD. The Jansen standard states that the risk must be one which will create a "reasonable probability of substantial ham," and the Largey standard requires disclosure of a "material risk" or one to which a reasonable patient would likely attach significance in determining whether to proceed with the proposed procedure. It is the court's view that the risk of transmission is not the sole risk involved. The risk of a surgical accident, i.e., a needlestick or scalpel cut, during surgery performed by an HIV-positive surgeon, may subject a previously uninfected patient to months or even years of continual HIV testing. Both of these risks are sufficient to meet the Jansen standard of "probability of harm" and the Largey standard requiring disclosure….

Physicians performing seriously invasive procedures, such as surgeons, have a potential to cut or puncture their skin with sharp surgical instruments, needles, or bone fragments. Studies indicate that a surgeon will cut a glove in approximately one out of every four cases, and probably sustain a significant skin cut in one out of every forty cases. Given these data, it has been calculated that the risk of contracting HIV in a single surgical operation on an HIV-infected patient is remote -- in the range of 1/130,000 to 1/4,500.

It is impossible accurately to calculate the level of risk of HIV transmission from surgeon to patient. Surgeons who cut or puncture themselves do not necessarily expose the patient to their blood, and even if they do the volume is extremely small. A small inoculum of contaminated blood is unlikely to transmit the virus. This suggests that the risk of infection from surgeon to patient is much lower than in the opposite direction. Nonetheless, the fact that the surgeon is in significant contact with the patient's blood and organs, together with the high rate of torn gloves, makes it reasonable to assume that the risk runs in both directions, as is the case with the hepatitis B virus. The cumulative risk to surgical patients, arguably, is higher. While an HIV-infected patient is likely to have relatively few seriously invasive procedures, the infected surgeon, even if the virus drastically shortens his surgical career, can be expected to perform numerous operations. Assuming that the surgical patient's risk is exceedingly low (1/130,000), the risk that one of his patients will contract HIV becomes more realistic the more operations he performs -- 1/1,300 (assuming 100 operations) or 1/126 (assuming 500 operations). Patients, of course, cannot expect a wholly risk-free environment in a hospital. But there does come a point where the risk of a detrimental outcome becomes sufficiently real that it is prudent for the profession to establish guidelines.

While the debate will rage long into the future as to the quantifiable risk of HIV transmission from doctor to patient, there is little disagreement that a risk of transmission, however small, does exist. This risk may be reduced by the use of universal precautions, such as double gloving and the use of goggles and other similar devices….

In balancing quantifiable risk with the necessity of informed consent, one must recognize the strong commitment of the New Jersey courts to the concept of a fully informed patient. Niemiera v. Schneider (1989); Largey v. Rothman. Plaintiff argues that the use of the informed consent form is tantamount to a de facto termination of surgical privileges. Plaintiff further urges that patient reaction is likely to be based more on public hysteria than on a studied assessment of the actual risk involved. The answer to these arguments is two-fold. First, it is the duty of the surgeon utilizing the informed consent procedure to explain to the patient the real risk involved. If the patient's fear is without basis, it is likewise the duty of the surgeon to allay that fear. This court recognizes that the burden imposed on the surgeon may not be surmountable absent further education of both the public and the medical community about the realities of HIV and AIDS. Second, the difficulties created by the public reaction to AIDS cannot deprive the patient of making the ultimate decision where the ultimate risk is so significant. The last word has not been spoken on the issue of transmission of HIV and AIDS. Facts accepted at one point in time are no longer accurate as more is learned about this disease and its transmission.

Plaintiff further argues that there is no requirement under the doctrine of informed consent that a surgeon's physical condition be revealed as a risk of the surgery itself. The informed consent cases are not so narrow as to support that argument. In Largey v. Rothman, the court spoke of not only an evaluation of the nature of the treatment, but of "any attendant substantial risks." See also Kaplan v. Haines. As noted earlier, the risks can foreseeably include a needlestick or scalpel cut and, even with universal precautions can result in an exchange of the surgeon's blood.

Plaintiff urges that these issues should be dealt with on a case-by-case basis, wherein the hospital or medical staff monitors an HIV-positive surgeon and makes a determination as to the surgeon's ability to perform a particular invasive procedure. While this approach may be an appropriate starting point, it can not be dispositive of the issue. Plaintiff's position fails to account for "any risk" and, more importantly, fails to consider the patient's input into the decision-making process. The position plaintiff seeks to implement is replete with the "anacronistic paternalism" rejected in both , and by the Supreme Court in Largey v. Rothman….

Health-care providers and institutions should consider ethical aspects of the doctor-patient relationship in examining the risk posed by health-care providers infected with HIV. The patient and doctor occupy unequal positions in the relationship. The doctor is trained to recognize, diagnose, and avoid contracting the patient's disease. The doctor stands in a position of trust -- a fiduciary position -- in relation to the patient. A small but palpable risk of transmitting a lethal disease to the patient gives the doctor an ethical responsibility to perform only procedures that pose no risk of transmission.

The patient, on the other hand, has no corresponding ethical duty to the doctor. The patient is neither trained nor expected to ascertain the provider's health status. While secretive patients may transmit their diseases to unwary doctors, doctors are responsible for both their own health and the health of their patients….

Gostin notes:
Courts, therefore, require the physician to provide all information that a reasonable patient would find relevant to make an informed decision on whether to undergo a medical procedure. Risks that are relevant or "material" depend upon their severity, the probability that they would occur, and the circumstances under which they would be endured. As the severity of a potential harm becomes greater the need to disclose improbable risks grows, though courts have yet to assign a threshold for the probability of a grave harm beyond which it must be disclosed.

A reasonably prudent patient would find information that his physician is infected with HIV material to his decision to consent to a seriously invasive procedure because the potential ham is severe and the risk, while low, is not negligible. Moreover, he can avoid the risk entirely without any adverse consequences for his health: By choosing another equally competent physician (where available) he can obtain all the therapeutic benefit without the risk of contracting HIV from his physician. The patient, then, can demonstrate not only that the information is material to his decision, but that he would have made a different decision had he been given the facts.

The obligation of a surgeon performing invasive procedures, such as plaintiff, to reveal his AIDS condition, is one which requires 9 a weighing of the plaintiff's rights against the patient's rights. New Jersey's strong policy supporting patient rights, weighed against plaintiff's individual right to perform an invasive procedure as a part of the practice of his profession, requires the conclusion that the patient's rights must prevail. At a minimum, the physician must withdraw from performing any invasive procedure which would pose a risk to the patient. Where the ultimate harm is death, even the presence of a low risk of transmission justifies the adoption of a policy which precludes invasive procedures when there is "any" risk of transmission. In the present case, the debate raged as to whether there was "any" risk of transmission, and the informed consent procedure was left in place. If there is to be an ultimate arbiter of whether the patient is to be treated invasively by an AIDS-positive surgeon, the arbiter will be the fully informed patient. The ultimate risk to the patient is so absolute -- so devastating -- that it is untenable to argue against informed consent combined with a restriction on procedures which present "any risk" to the patient. In assessing the Medical Center's obligation under the LAD, it is the Court's view that the burden under Jansen has been met, and there was a "reasonable probability of substantial harm" if plaintiff continued to perform invasive procedures. Plaintiff is not entitled to recovery under this statute.

The Medical Center acted properly in initially suspending plaintiff's surgical privileges, thereafter imposing a requirement of informed consent and ultimately barring him from performing surgery. These decisions were not made spontaneously or without thought…. The result, while harsh to plaintiff, represents a reasoned and informed response to the problem….

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