Discretion to Warn: Balancing Privacy Rights with the Need to Warn Unaware Partners of Likely Hiv/aids Exposure

Abstract: HIV/AIDS, an epidemic that continues to claim thousands of lives annually, disproportionately affects homosexual males, racial minorities, and low-income individuals. When HIV/AIDS first emerged in the 1980s, the virus was clouded by great fear, misinformation, and stigma. Although stigma persists, research and treatment of HIV have so advanced that the virus may be managed and treated with medicine so long as it is caught early. HIV/AIDS prevention and testing strategies must balance competing concerns of both patients' rights to confidential test results with the public health good of notifying individuals who are unaware of likely HIV exposure. The current HIV law in Massachusetts fails to account for the public health good of notifying individuals who are likely infected and unaware of their status. In response to this public health need, the Massachusetts Legislature should amend its current HIV law to grant physicians discretion to notify partners who have likely been exposed to HIV. Maryland's law on HIV testing and partner notification provides a sound model for the legislature's consideration.INTRODUCTIONJaylah was a beautiful two-day-old newborn lying in a crib at Boston Medical Center and her father, Anthony, could not have loved her more.1 Anthony and his girlfriend, Elisa, had been anxious about Jaylah's health, but Jaylah was born full-term and by all outward appearances was healthy.2 While Elisa was still an inpatient on the labor and delivery floor of the hospital, Anthony would go alone to visit Jaylah and check on her.3 During one of these visits, Anthony watched as a nurse put an intravenous (IV) into Jaylah's arm, prompting him to ask what medications his daughter was receiving.4 Rather than answer the question, the nurse said she would go and get the doctor.5Anthony was unaware that under Massachusetts state law, the nurse was legally restricted from disclosing the truth to him: his daughter was receiving azidothymidine (AZT) to treat the Human Immunodeficiency Virus (HIV) that she had been exposed to in utero.6 Anthony did not know that that Elisa was HIV positive, that his daughter had been exposed, that HIV can be transmitted in utero from mother to baby, or that there was a significant likelihood that he himself could be HIV positive.7 Because of the current Massachusetts law, however, the nurse was not legally permitted to tell Anthony anything about his daughter's exposure or his girlfriend's diagnosis.8 The nurse also could not suggest that Anthony be tested or alert him to the likelihood of his own infection.9 Although a social worker counseled Elisa as to HIV's effect on Jaylah, disclosing the information to Anthony remained solely Elisa's decision.10When the doctor returned, he told Anthony that Jaylah was receiving antibiotics.11 Taking the doctor's word, Anthony had no reason to question that Jaylah was receiving only antibiotics.12 Approximately one week later, Anthony left the hospital with Jaylah, unaware that his daughter needed to continue to take AZT via syrup in order to prevent her from becoming HIV positive, and also unaware that he too may be in need of similar medications.13Unfortunately, Anthony's story is not unique.14 Many individuals in committed relationships trust their partner and assume they have no reason to be tested, all the while being unaware of their partner's HIV status.15 HIV testing is crucial to executing effective prevention strategies and enabling individ uals to seek proper medical care.16 Unfortunately, however, the stigma surrounding HIV often causes people to hesitate to disclose their status to their partners or stifles their initiative to seek out testing on their own.17 State laws, such as the Massachusetts law prohibiting disclosure of HIV test results to a partner, were promulgated at the height of the societal stigma. 18 These laws seek to balance the needs of patient privacy and testing incentives with the public health objective of notifying persons who are likely infected. …