Does HIV Testing in EDs Carry More Legal Risks Than Other Tests?

A patient treated and discharged for pneumonia several times at an ED is later diagnosed with acquired immunodeficiency syndrome (AIDS). Could the ED be successfully sued for failing to test for human immunodeficiency virus?

"Someone could make the legal argument, 'Why didn't they test this person for HIV before the disease progressed to AIDS?'" says Michael Waxman, MD, an ED physician at Albany (NY) Medical Center, a proponent of HIV testing in the ED.

With HIV testing in the ED, "there is the very real possibility that a patient who is not tested, or does not receive accurate results, could seek legal reparations for damages associated with delayed diagnosis or frank malpractice," according to Jason Leider, MD, PhD, associate professor of clinical medicine at Jacobi Medical Center in Bronx, NY.

Lack of Understanding

"Regardless of how EDs do HIV testing, there will probably be people tested without having a full understanding of what's going on," says Waxman. "That probably has some legal implications, but in my opinion, not that much."

The same is true of any other medical test, explains Waxman, and in those rare circumstances when someone is tested who doesn't wish to be, the chances of that individual testing positive is somewhere around 1 in 1000.

"If the individual tests negative, there is no harm. If the individual tests positive, the vast majority of people would find help in that, not harm," says Waxman. "In the ED, we do this all the time for things that I think carry a lot more risk. We test for pregnancy and diabetes all the time and don't get permission for it."

Jeffrey L. Greenwald, MD, SFHM, co-investigator for the inpatient clinician educator service at Massachusetts General Hospital and associate professor of medicine at Harvard Medical School, both in Boston, MA, was lead author of a study that found that routine testing of inpatients led to twice as many patients being diagnosed as HIV-positive than would have occurred had routine testing not been offered.1

However, in the ED, says Greenwald, "there have to be mechanisms in place that need to be particularly well attended to." Here are potential legal risks of this practice in the ED:

• The potential for lack of confidentiality.

"It's very difficult to give results quietly and confidentially in a loud setting without people in the next bay hearing the results. That could potentially put EDs at risk," says Greenwald. "Having said this, there are a number of examples of programs successfully doing HIV testing in EDs."

An EP who communicates the results of an HIV test to a patient does not risk exposing himself to liability simply because he or she was overheard by a patient in the next bay, according to Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH.

"Obviously, physicians want to be discrete about the communication of the results of any test," says Greenfelder. However, he says, if the physician did not actively communicate the test result to another person in breach of his duty of confidentiality, it is highly unlikely that he or she could be subject to liability.

• The potential for false-negative results.

If a patient had an exposure very recently and requests an HIV test, "the period of seroconversion is short, but not that short," Greenwald says. "It's not a morning-after phenomena."

ED staff need to be well-versed in current recommendations about advising patients of the need for retesting if they suspect the exposure was recent, adds Greenwald.

Since a discussion of the window period is part of the pre-test counseling required in New York state, notes Leider, not discussing this issue leaves the practitioner outside the standard of care.

Providers can give more attention to explaining the meaning of HIV test results in the primary care setting, Greenwald adds, whereas in the ED, the patient is presumably there for an emergency medical condition. "There is less attention that can be given to the HIV testing. There is also a sore throat or a heart attack that is demanding their attention," he says. "It can be done. It just takes planning, resources, and training — the way all high-stakes testing should be performed."

To reduce risks, be sure that whoever performs the test explains in very low health literacy language what the test results mean, advises Greenwald, and utilize translators for patients without extremely good English proficiency.

"As long as an ED physician communicates to the patient the possibility of a false-negative result and the need to return for later testing, the potential for liability is greatly decreased," says Greenfelder.

• The possibility of a false-positive.

If enough patients are tested, says Greenwald, a false-positive is eventually going to occur. "That is the nature of a not perfectly specific test," says Greenwald. "Most places aren't confirming rapid tests with other rapid tests. Serial rapid tests, as done in some overseas sites, might be one effective way to obviate the need for a [Western blot], which takes a long time to come back."

• Allegations of profiling.

The issue is how the ED selects who is tested. "Are you doing screenings or doing targeted testing? If HIV testing is not truly routine, I suppose you could run into the problem of profiling," says Greenwald.

Waxman says that reimbursement has potential legal implications for EDs. If the HIV test is offered as a routine screening to all patients, but self-pay patients are unable or unwilling to pay for it, he explains, the test may end up being done mostly for insured patients.

"No one quite knows know to handle this," he says. "Let's say a patient has no insurance. You cannot offer free HIV tests to some patients and not others, because Medicaid mandates you charge everyone regardless of whether they have insurance."

You can tell the patient they are responsible for the cost of the HIV test, says Waxman, but this would likely discourage most patients from being tested. "Ethically, it doesn't make sense to discriminate against the patients who need it the most, but then again, you need to charge people for services," says Waxman.

If a hospital has a policy of routine screening for HIV, and a low-income patient refuses the test because of its cost, the likelihood of a successful lawsuit for discrimination is not particularly high, says Greenfelder. However, if a low-income patient demands an HIV test and it is not provided because of the patient's economic status, there is greater potential for a meritorious lawsuit, he adds.

"From a legal perspective, taking economics out of the equation, the best policy for an ED is, assuming a patient wants an HIV test, to administer that test without consideration of whether the patient is capable of payment," says Greenfelder.

Indigent patients should be informed about free testing sites if free testing is not available at the medical center, advises Leider, and this should be documented in the medical record.

While some EDs offer HIV tests only if the patient requests it, or if a patient comes in with signs and symptoms suggesting HIV infection, some EDs offer it to all patients. "About a quarter of HIV-infected people don't know they are infected, and are unknowingly causing a great deal of the new cases," says Waxman. "Finding people earlier would prevent new transmissions."

A significant number of people detected with new HIV infections had been to an ED in the recent past, adds Waxman. "So it's probably true that if we did universal screening in EDs, we could have picked up these cases earlier," he says.


For more information, contact:

• Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, 4518 Fulton Drive NW, Canton, OH 44718. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail:

• Jeffrey L. Greenwald, MD, SFHM, Inpatient Clinician Educator Service, Department of Medicine, Massachusetts General Hospital, Boston, MA. Phone: (617) 643-6408. E-mail:

• Jason M. Leider, MD, PhD, Department of Medicine, Jacobi Medical Center, Bronx, NY. Phone: (718) 918-3669. Fax: (718) 918-7686. E-mail:

* Michael Waxman, MD, Emergency Department, Albany Medical Center. Phone: (401) 262-4936. E-mail: