LEGAL GUIDANCE

HIV-INFECTED HEALTH CARE
WORKERS

The scope of protection for HIV-infected
healthcare workers under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101
et seq., and Section 504 of the Rehabilitiation
Act of 1973, 29 U.S.C.§ 794 continues to be
a major concern with hospitals and the courts.
Hospital officials often find themselves in a
very difficult position. They must not
discriminate against seropositive healthcare
workers and many states have laws that
require information as to a person's HIV status
to be held in strict confidence. At the same
time, they need to safeguard both co-workers
and patients from harm and, of course, they
need to minimize the potential for institutional
liability that would result if an infected
healthcare worker transmitted the infection to
others while on duty. Briefly summarized here
is a case involving the termination of a HIV-
positive physician from a_ neurosurgical
residency program at the University of
Maryland. John Doe v. Univ. of Maryland
Medical System Corporation, 50 F.3d 1261
(4th Cir. 1995).

The Federal Fourth Circuit Court of Appeals
has held that a university hospital did not
violate Section 504 of the Rehabilitation Act
or Title II of the Americans with Disabilities
Act (ADA) (covering public entities) when it
removed the HIV-positive physician from a
neurosurgical residency program based upon
the risk of transmission of the disease during
performance of exposure-prone _ surgical
procedures, i.e., those posing risk of
percutaneous (skin-piercing) injury.

The university had offered the physician

alternative residencies in non-surgical fields.
Arguing that the university had discriminated

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against him by refusing to recognize that any
risk that he posed to the health or safety of
patients could be eliminated by reasonable
accommodations, the physician brought legal
action under a variety of state and federal
laws, including the ADA and Section 504 of
the Rehabilitation Act.

The Court acknowledged that the risk of HIV
transmission to patients by the doctor might be
very low. However, it deferred to the
university's determination that almost all of
the neurosurgical procedures that would have
been performed by Dr. Doe were within the
Centers for Disease Control (CDC) definition
as “exposure prone." The CDC recommends
that HIV-positive physicians be prevented
from performing them. While the Court
observed that there is, to date, no documented
case of an HIV-positive surgeon transmitting
the virus to a patient, it also noted that such
transmission clearly is a possibility and the
results are invariably fatal. It found that the
doctor posed "a significant risk to the health
and safety of his patients that cannot be
eliminated by reasonable accommodation."
Accordingly, this physician was not an
otherwise qualified individual with a disability
under these statutes.

Of particular interest to the Court, and
significant for healthcare facilities confronting
similar problems, was the fact that the
university's decision for termination of Dr. Doe
had been "thoroughly deliberated". The
university made their decision based on the
best interests of protecting its patients.

NMLC point of contact is Mr. John R. Osing,
Jr., Office of the Counsel, who may be reached
at (301) 619-2157 or by DSN at 343-2157.