The Dentist, HIV and the Law: Duty to Treat, Need to Understand
David 1. Schulman, JD

http://www.hivdent.org/DTC/dtcblaa082001.htm

Editor's note: Because. of a perceived need for continued attention to the legal considerations governing treatment of HIV-infected patients in the dental office, David L Schulman, JD, author of the well-received 1993 CDA Journal article "The Dentist, HIV and the Law.- Duty to Treat, Need to Understand" was asked to write a new article updating changes in this area. His response was that, except for a recent decision in a key court case and a few changes to the references, the original article still reflects the current law on this topic. For our readers' benefit and understanding of this complex issue, we are reprinting the original article with a new author's preface to make note of that important court decision.

Author's preface
I am pleased to write a new author's preface to the article, "The Dentist, HIV. and the Law: Duty to Treat, Need to Understand," which originally appeared in the September 1993 issue of the CDA Journal as part of an issue on HIV and dentistry.

The original article discussed the three important areas of law that dentists should understand in order to meet their responsibilities to HIV-infected patients, as well as their staffs: anti-discrimination, workplace safety, and privacy and confidentiality. Those three areas continue to form the framework for proper handling of HIV and AIDS issues within the dental office.

So, why reprint the article? And why should those who read it the first time read it again? The answer lies in the renewed attention about dentists and AIDS discrimination generated by one of 1998's most closely watched U.S. Supreme Court cases. Bragdon v. Abbott (note 1) concerned a dentist's claim that he had a right to refuse to treat a person with HIV because of the infectious risk she posed.

Our office filed a friend of the court brief in Bragdon , and cited our Joumal article to the court. (note a) . So we were pleased when the Supreme Court, in its ruling handed down last June, held that dentists do have a duty to treat people with HIV. In so holding, the court rejected Bragdon's claim that courts should defer to his assessment of whether a patient with HIV posed too much risk to him, his staff, or other patients. Instead, the court ruled, deference should be given to the opinion of public health authorities, because they are the ones best trained to assess risk. Bragdon could present evidence to rebut their conclusions, but he could he could not claim that his opinion about the infectious risk posed by the HIV-positive patient in the case should override that of public health authorities.

Some historical perspective helps explain the fears of those like Dr. Bragdon.

The advent of the AIDS epidemic marked the end of a brief "golden age" of infectious disease control that began with the first polio vaccine in 1954, and ended in 1981 with the first AIDS case reports. That brief golden age was when many professionals were trained in their fields. It was a time when everyone - dentists, infectious disease specialists and the public alike - came to believe that the eternal threat of epidemics had been vanquished forever, at least for those nations wealthy enough to afford the latest technology.

So it was a great shock when AIDS appeared and undermined our sense of invulnerability. Those coming into dentistry today know about bloodborne infectious risks. But for those who grew up or were trained during that brief golden age, their shaken sense of invulnerability sometimes translates into mistrust of the data, and of those responsible for assessing it. Bragdon resoundingly rejected those fears.

While the citations in the original article are to California cases and statutes, its basic approach is useful anywhere. And while it is written specifically for dentists, the analysis is applicable to all health care providers' duty to treat - and, it is hoped, to care.

Abstract: An understanding of three areas of law - anti-discrimination, workplace safety, and privacy and confidentiality-is helpful to dentists in meeting their responsibilities to treat HIV-infected individuals. This understanding also will assist in establishing a practice atmosphere in which HIV-infected patients will feel comfortable enough to fully disclose their condition and discuss treatment options with the care provider.

ARTICLE

Dentists are often the first to notice the clinical changes that signal the onset of symptomatic HIV disease, making them vital to helping HIV-infected people maintain good health. Yet too frequently the relationship between the dentist and the HIV-infected patient is adversarial.

Patients hide their status, even when they know they are withholding information important to their care, because of discrimination and rejection experienced with other dentists. In turn, this mistrust and lack of candor makes caring providers feel frustrated and abused.

How can the tensions in this important relationship be changed?

The purpose of this article is to lessen such tensions by acquainting dentists with HIV-related law, and the policies and purposes behind such regulations. In doing so, we hope to assist in establishing an atmosphere of confidence and trust - for all dental patients, office staff and dentists.

The author brings a unique perspective to this discussion: the AIDS/HIV Discrimination Unit of the Los Angeles City Attorney's Office is the only government agency in the country that both enforces an AIDS civil rights law and advises a large employer, the City of Los Angeles (an employer of 40,000), regarding it own legal rights and duties. While the city does not have dentists on staff, its police, firefighters, paramedics and medical staff face similar challenges - and responsibilities.

This article shares an approach that has proved useful in assisting city staff to meet their responsibilities. This approach requires an understanding of three legal areas - anti-discrimination, workplace safety, and privacy and confidentiality law.

Practice tips to help the dentist meet legal responsibilities and establish an atmosphere in which HIV-infected patients will feel comfortable fully disclosing their condition also are offered.

Do not rely on this article to answer specific legal questions. These should be reviewed with your own attorney, though he or she may find this a useful resource.

HIV IS BLOODBORNE

Together, non-discrimination, workplace safety, and privacy and confidentiality law form a framework for understanding AIDS legal duties. This framework rests upon a fundamental finding that requires discussion first -- that HIV is bloodborne. HIV legal analysis depends upon this finding, for very different rights and responsibilities would follow if HIV's vector of transmission were different -- if it were airborne, for example.

That HIV is bloodborne is as solid a foundation upon which to base law and policy as are other findings that we base decisions upon every day. It has been examined in courtrooms across America dozens, if not hundreds, of times. In case after emotional case involving such highly charged issues as the right of HIV-infected children to attend schools, courts have regularly upheld this foundational-matter.

We emphasize this finding's firmness because so many insist, when it comes to HIV, that they receive absolute assurance -- despite the fact that science, of course, cannot provide such assurance about anything.

This wish for certainty is understandable, for HIV is frightening. It helps, however, to place it in context.

Science's tremendous breakthroughs -- the identification of microbes that cause disease, the emergence of antisepsis and sanitation, the discovery of antibiotics -- led many professionals and lay people alike to believe that epidemics had now become things of the past, at least for industrialized nations.

Because we thought we had forever rid ourselves of this fundamental terror, the advent of an epidemic of a previously unknown pathogen with a different vector of transmission revived the ancient impulse to scapegoat and blame -- and gave it added virulence. In America, this impulse was made worse yet, because HIV broke out first among already stigmatized groups - gays and IV drug users. Because of the intersection of IV drug use, poverty and race, many were further stigmatized because they were African American or Hispanic.

Our shock that there was a new epidemic at all combined with the fear of those who are different, of those with disease, and of death itself, to create the discrimination problems anti-discrimination law combats.

AIDS ANTI-DISCRIMINATION LAWS

The City of Los Angeles enacted the nation's first AIDS anti-discrimination law in August 1985, the month following the disclosure of Rock Hudson's illness. Today, AIDS discrimination is illegal throughout the United States under the Americans with Disabilities Act of 1990 and the Federal Rehabilitation Act of 1973, as well as many state and local statutes. In California, the Fair - -- Employment and Housing Act was amended to include HIV in its definition of disability, and the Unruh Civil Rights Act prohibits discrimination in the provision of services.

Such laws combat the impulse to scapegoat and blame by extending to people with HIV the same protections that society has evolved for all who are disabled. Under such laws, dentists may not refuse to treat HIV-infected people, just as they may not refuse to treat other disabled people - or members of other groups that have been singled out historically for discrimination, such as African Americans, women, or Jews.

Civil rights laws do not require dentists to treat every black person, woman, Jew, or disabled patient who seeks care. For instance, an African American patient with a problem a dentist is not qualified to treat should be refused care and referred to a specialist, just as any patient presenting a problem beyond the scope of a dentist's competency should be.

These laws do require, however, that stereotypes, generalizations, misapprehensions and prejudices about such groups not be applied to individuals. For instance, dentists cannot refuse to treat African Americans because of bigotry or prejudice.

Similarly, disability right laws require that overly broad generalizations about disease be set aside in favor of individually based evaluation. For instance, dentists may not refuse to treat all heart patients. However, those who have just had open-heart surgery who are too medically fragile to be treated in a private operatory should be referred to care in a more sterile environment.

In just the same way, dentists can't refuse to treat all HIV-infected patients. For instance, asymptomatic HIV patients should never be refused care merely because they have HIV, because asymptomatic patients, by definition, present no clinical symptoms that might be beyond the scope of a dentist's competency and training.

On the other hand, an HIV-infected patient with a tooth in the middle of a Kaposi's sarcoma lesion that needs to be extracted should be referred to an oral surgeon, just like other patients requiring complex extractions.

The key in all cases is an individualized approach based on each person's particular condition. Dentists may not plead ignorance as a reason for refusing to treat HIV-infected patients. As professional codes of conduct and community standards of practice make clear, dentists must know about H IV just as they must know about other common medical conditions.

Nor may dentists refuse to treat HIV-infected patients because they are infectious.

The U. S. Supreme Court in 1987 established a two-part test for determining when an infectious risk was so great that it justified discrimination. In School Board v. Arline , (note 2) the court held that, before discrimination was justified, (1) the risk to others must be reasonably accommodated and (2) the remaining risk must still be significant.

Studies have shown (note 3) that HIV poses nothing remotely approaching a significant risk of transmission in dental or health care settings even without reasonable accommodation. With reasonable accommodation - that is, proper infection control, which is discussed in the next section - HIV's already remote risk is reduced even more.

WORKPLACE SAFETY

Dentists and others who encounter blood in the workplace used to maintain a two-tier approach to workplace safety to protect against exposure to bloodborne disease. For patients showing clinical signs of disease, heightened precautions involving barriers, disinfection and waste disposal were used. For all others, blood was handled more casually.

Following the discovery of slow-acting viruses in the mid-I 970s, the dangers of this approach became apparent. People infected with slow-acting viruses (called lentiviruses, from the Latin word for "slow") are always infectious even though they might not become ill for years. A workplace safety system, then, that required precautions only when someone appeared ill protected staff from only a small portion of those who actually posed risk. The result was a substantial rise in hepatitis B infection rates among dentists and other health care workers. (notes 4, b)

In response experts proposed that this two-tier approach to workplace safety be abandoned in favor of one that treated all blood, at all times, from all sources, as if it were infectious -- a strategy called universal precautions.

Universal precautions were developed because of the threat posed by hepatitis S. By 1985, however, the Centers for Disease Control and Prevention recommended them to prevent transmission of HIV, another lentivirus, though one far less infectious than hepatitis B. (note 5)

State and federal law now require the use of universal precautions, (notes 4, 6, 7) and the failure to maintain them is deemed to be unprofessional conduct by the California Patient Protection Act of 1991. (note 7) CDC has issued dental infection control recommendations that discuss universal precautions in detail. (note 8)

Since universal precautions require the same high standard of infection control for all patients, it is discriminatory to impose a surcharge for such measures for HIV-infected patients.

There is another interesting policy consequence of the "universal" nature of universal precautions. Not only is disclosure not necessary for staff safety, it can actually increase risk. This conclusion seems counterintuitive initially. It seems obvious that disclosure would lead dentists to be more careful with infected patients, even if they followed universal precautions properly -- that is, for everyone. Studies by occupational safety specialist Dr. Julie Gerberding at San Francisco General Hospital suggest, however, that such hypervigilance may actually be counterproductive.

In fact, Dr. Gerberding's research suggests that hyper-vigilance may increase exposure rates because staff, self-conscious about their patients' status, become awkward in their surgical procedures and techniques. (notes 9, c)

Disclosure can also actually increase risk by leading staff to assume it's OK to revert to more casual precautions for patients who aren't known to be infected -- but may be.

The Los Angeles City Attorney's Office recommended that the city's fire department not broadcast the HIV status of rescue victims to paramedics because of these staff safety disclosure concerns, a recommendation the department has adopted. (note 10)

PRIVACY AND CONFIDENTIALITY

Once HIV anti-discrimination and workplace safety principles are understood, HIV privacy and confidentiality protections-make sense.

Dentists do not have the right to require disclosure of HIV test results so they can refuse to treat because disability rights law prohibits refusing to treat solely on the basis that a patient is HIV-infected.

Similarly, dentists have no right to require disclosure so they can decide when to take proper safety precautions because state law requires that such precautions be in place at all times, with all patients.

Dentists arguably have the right to require disclosure when it is relevant to proper patient care and treatment, just as all relevant medical information should be disclosed.

Many HIV-infected patients, however, admit lying on medical questionnaires for fear, often based on many painful experiences, that they'll be refused care if they disclose truthfully. Such behavior is not in the patient's own best interest, nor does it foster trust and goodwill with his or her dentist.

Dentists, then, face two privacy challenges - establishing an office environment in which HIV-infected patients trust they can be candid about their condition and properly protecting such information when it is disclosed.

At the end of this article there are suggestions to help make patients feel safe enough to make full disclosures. In this section, though, we discuss your duty to protect such information when you receive it.

The law has long extended special privacy protection to information, such as a diagnosis of mental illness, that is especially likely to lead to stigma and ' discrimination if disclosed.

The law has begun to extend such special protection to HIV information, but since this area of law is still evolving, dentists must consult their own attorneys to determine its precise impact on their practice.

Three levels of protection have emerged so far: general statutory and common- law privacy protections, special HIV laboratory test result protections, and state and federal constitutional privacy protections.

1. General Statutory and Common-Law Duties

The first level of HIV privacy protection is the dentist's general statutory and common-law duty to protect all medical information in his or her possession because such information is disclosed only for the purpose of the patient's care.

Not so long ago, dentists, physicians and other care providers were more aware of the need to protect patients' privacy because the stigma caused by fear and ignorance about many medical conditions was common. More recently, however, sensitivity to patient privacy has decreased as scientific knowledge replaced myth and ignorance about so many conditions. It has decreased, as well, as disclosure to third parties -- insurance companies and utilization review committees, for example -- has become so common.

As the damaging consequences of disclosure have diminished, care providers have had little incentive to remain vigilant about protecting privacy since lawsuits would only be filed when damages could be proved.

Fear and ignorance about HIV has dramatically reversed this trend. Wrongful disclosure of HIV information can result in substantial injury, including loss of employment, cancellation of insurance, eviction, even abandonment by family and friends. To protect against the substantial liability for consequential and punitive damages they can face under general statutory anc[ common-law privacy provisions, dentists should re-educate themselves about their general duties to protect patient privacy.

2. Health and Safety Code Provisions

The second level of HIV privacy protection specially protects HIV laboratory test results. These provisions, codified as Chapter 7, Part 4, Division 105 of the California Health and Safety Code, (note d) impose special statutory duties regarding HIV testing and disclosure.

Since Chapter 7 imposes special duties and burdens, it helps to understand its background. It was originally enacted in 1985, at the time the HIV test was first licensed to protect the state's blood supply, in response to public health concerns that arose with the HIV tests first commercial availability.

One concern was that if the test were not available elsewhere, people wishing to learn their HIV status would donate blood for that purpose. This caused concern since no screening test could be 1 00 percent reliable: More high-risk individuals donating blood could mean more false-negative blood entering the blood supply. In response, legislation was enacted to create special alternative, anonymous test sites.

The second concern was to create an incentive for people to get tested despite the fear they might become victims of discrimination. Chapter 7 was enacted in response.

Chapter 7 (beginning at Section 120975 (note e) of the Health and Safety Code) requires special patient consent before an HIV test may be conducted, imposes special civil and criminal penalties for unauthorized test result disclosures, requires specific written authorization for each disclosure, prohibits use of the test for health insurance or employment purposes, and forbids unauthorized test result disclosure, even in response to a subpoena.

To guard against unauthorized disclosure, many dental and health care providers chart test results in a separate portion of the patient's chart on a different color of paper, and train their records staff never to include them in filing insurance claims or in response to other record requests.

Despite the important public policy purposes of Chapter 7, its provisions have been the source of some confusion and concern. As originally enacted, many believed it prohibited a member of the test subject's health care team who was authorized to receive the test result from disclosing it to another member of the team who was not specifically authorized to receive it. A subsequent amendment remedied this problem so that now a single authorization permits all care providers access to the test result for the purpose of patient care.

Another problem was Chapter 7's scope. Since its purpose was to halt discrimination by protecting privacy, many thought that it prohibited disclosure of such statements as"I'm HIV positive" as well as the actual laboratory test results, since such statements derive solely from the test. Some even thought it included such statements as "I have AIDS," since they, too, usually are based in part upon a positive test.

A 1991 California appellate court case, Urbaniak v. Newton , (note II) rejected these more expansive interpretations. In Urbaniak , the plaintiff claimed he disclosed he was HIV-positive to a nurse for the sole purpose of protecting her and others from her unsafe handling of instruments contaminated with his blood, and asked her not to make further disclosures. When she did, he claimed she and those who made subsequent disclosures violated Chapter 7.
The Urbaniak court rejected the plaintiff s claim and ruled, instead, that Chapter 7's scope was limited only to actual laboratory test results. Dentists should consult their own attorneys to determine the impact of Urbaniak on their practice, especially in light of the court's ruling discussed in the section that follows.

3. The Constitutional Right to Privacy

Though the Urbaniak court ruled that the nurse's alleged disclosure did not violate Chapter 7, it did rule that her alleged actions violated California's constitutional right to privacy. Unlike the federal right, which is limited to government action, California's constitutional right to privacy regulates private actions as well -- such as the activities of dentists.

"There can be no doubt that disclosure of HIV-positive status may under appropriate circumstances be entitled to protection under [the state's constitutional right to privacy]. The condition is ordinarily associated either with sexual preference or intravenous drug uses. It ought not to be, but quite commonly is, viewed with mistrust or opprobrium.... [I]t is clearly a 'private fact' of which the disclosure may 'be offensive and objectionable to a reasonable [person] of ordinary sensibilities. "' (note 12)

It is likely that other courts will conclude that this ruling should be applied to all HIV information -- an AIDS diagnosis, a patient's T-cell count or information about HIV-related drugs, for example -- since such disclosures are all likely to result in the stigma and discrimination which concerned the court in Urbaniak . A line of federal cases also extends federal constitutional protection to such information. (notes 13 - 17)

You must review with your own counsel the impact the imposition of a constitutional duty to protect patient privacy would have on your own practice. We have advised Los Angeles' fire department that we do not believe such protections prohibit further disclosures that are essential to the purpose for which an initial disclosure was made, such as the care and treatment of a patient, for example. (note 10) It does mean, in our opinion, that courts will, under this standard, strictly scrutinize the reasons for each disclosure, impose heightened duties to protect such sensitive information against improper disclosure, and impose more severe penalties for wrongful disclosures.

PRACTICE HINTS

How, then, can the well-intentioned dentist in private practice make his or her way through this still evolving array of privacy requirements and protections?

It helps, first, to remember that HIV privacy laws are emerging in response to a real problem -wrongful disclosure of patients' HIV information can hurt and injure by leading to discrimination. As a federal court observed in one of the earliest HIV privacy rulings,
"[T]here are few matters of a more personal nature, and there are few decisions over which a person could have a greater desire to exercise control, than the manner in which he reveals [an AIDS] diagnosis to others. " (note 18)

Dentists, like others in society to whom such volatile information is entrusted, must learn to protect it properly. That does not mean, as some have concluded, that such information cannot be used. Indeed, dentists may be under a duty to disclose a patient's HIV information when relevant to proper patient care, such as when making a referral to a specialist. Even HIV laboratory test results may need to be disclosed, with proper authorization pursuant to Chapter 7.

One part of a solution to these issues is to develop record-keeping systems and staff training that ensure that HIV information is properly used, but not abused. This is difficult in an era in which our sensitivity to the need for medical privacy has generally weakened. It is made more difficult still by the fact that patient records are used for many more purposes than when they were kept primarily for the care of the patient.

How and when this should be done, and with what kind of consent from the patient, should be carefully considered and reviewed with your attorney.

In developing an approach to protect privacy, it helps to take the tirne to educate staff well, and to review who has access to all records and why. Review all office record-keeping policies.

Discuss office policies with an attorneys When the need to disclose HIV information arises, such as when you refer patients to a specialist, determine whether special waiver forms should be developed for patients to sign that

Explain why you need to disclose such information. These efforts will help establish that you were aware of the importance of patient privacy, and took steps to safeguard it. Should a mishap occur and a patient's information be wrongfully disclosed a court is far more likely to look favorably upon a practice that sought to protect patient privacy, but failed, than on one that never took steps to address such important issues at all.

There is a range of other steps dentists can take once they have learned about their duties to treat, maintain a safe work environment, and protect patient privacy.

1. The first and foremost is repeated, effective staff training. Staff should learn why compliance with anti-discrimination, occupational safety and health, and patient privacy protection requirements makes sense so that these fundamentals are not perceived as unreasonable burdens and demands.

2. To protect patient privacy, staff should learn not to post charts where others can see them, and not to talk about patients' conditions in areas of the office where they might be overheard by other patients.

3. An atmosphere should be established in which HIV-infected patients feel free to be candid about disclosing their status. Most don't want to withhold such information because they know it's important to their own optimum, sound treatment. Three statements at the top of your medical intake questionnaire can signal your patients that they can be candid with you:

• This office does not discriminate on the basis of race, sex, sexual orientation, national origin, age, or disability.
• This office is in compliance with the latest state and federal infection control requirements.
• This office protects the privacy of all patients.

Your other patients won't notice the first and last statements, and will be reassured to read the second. Your HIV-infected patients, however, will read between the lines and know that you understand -- and care.

CONCLUSION

Our purpose has been to acquaint dentists with the ways HIV law is evolving a balance between fears and the duty to treat others as we would want to be treated ourselves.

In past epidemics, law often served to justify the scape-goating and blame that so often was a substitute for knowledge and understanding. Today, law serves as a bridge, connecting those who are ill with those who care.

The law cannot mandate understanding. But with understanding, the law's requirements can make sense, allowing us to see ourselves in the other, and our humanity in ourselves.

Acknowledgement. The author thanks Brad Sears, director of the HIV Legal Check-up project of HALSA, the HIV & AIDS Legal Services Alliance for Los Angeles County, for research assistance in the preparation of the author's preface.

Author. David 1. Schulman, JD, is supervising attorney of the Los Angeles City Attorney's AIDSIHIV Discrimination Unit, and a member of the dental steering committee of the Pacific AIDS Education and Training Center, a federally funded regional HIV clinical training program for health care providers.

Notes and References

1. The brief can be found on the Los Angeles City Attorney's website at www.cityofia.org/ATTY/bragdon.htm.
2. The Hepatitis Branch of CDC estimated that, in the 1980s, there were approximately 200 health care worker deaths each year from occupationally acquired hepatitis B, along with 2,100 cases of clinical acute hepatitis and 8,700 infections overall. (note 4)
3. Dr. Gerberding's colleagues at San Francisco General learned something else that does not at first seem obvious: that surgical gloves may provide protection against needlestick transmission, even when punctured, by reducing the amount of innoculum injected into the skin by at least 50 percent.
4. Note that while this citation is different from the one in the original article, the statutes discussed remain the same; they merely have been renumbered.
5. Section 120975 was originally numbered Section 199. 20.