When can staff divulge patient's HIV status?
Is there a duty to warn others?
A man with chest pain tells your ED physician that he uses cocaine and is HIV-positive, then asks the physician not to tell his girlfriend who is about to enter the room. What is the most likely basis for a lawsuit: Disclosure of the patient's status, or if the physician doesn't tell and his partner gets infected?
A patient's status as HIV-positive is protected by federal and state law, says Erin McAlpin Eiselein, a health care attorney with Davis Graham & Stubbs in Denver. Your staff may disclose this confidential and protected health information only if there is an exception to the federal or state law, says Eiselein.
However, in light of the California Supreme Court's 1974 decision in Tarasoff v. Regents of the University of California,1 involving a patient who killed a specific individual after informing his psychologist that he intended to do so, physicians also have an obligation to warn a party in clear or imminent danger. "The intersection between the physician/patient privilege and the physician's duty to warn raises a number of legal and ethical considerations," says Eiselein. "If an ED physician encounters this situation, he or she should immediately contact the hospital's legal counsel, as controlling laws vary widely by state."
Many states allow, but do not require, notification to third parties, while a few states require the notification. "In those states, the disclosure would be permissible," says Eiselein. Michigan, for example, has enacted a statute requiring physicians to notify the contacts of an HIV-positive patient, if this disclosure is necessary to prevent further transmission of HIV. "The ED physician can also discharge this duty by notifying a local health officer," adds Eiselein.
However, the Michigan statute is unusual. In the vast majority of states, such notification isn't mandated and might not be allowed at all. "State statutes are all very different," says Eiselein. "Some allow disclosure to spouses. Others allow disclosure to sexual partners but not needle-sharing partners, and others permit disclosure to anyone who may have been exposed to the virus."
In states in which notification is permitted, the ED physician will have to make a decision as to whether to notify a contact directly, or make a report to the local health agency, based upon the particular state law involved and the set of facts presented, says Eiselein. She cautions that physicians who are statutorily authorized to notify a third party about a possible exposure to HIV should take care to strictly comply with such laws. "In many cases, this means providing the contact's name to a local health agency so that the agency can conduct the notification," says Eiselein. "Any questions about such a notification should be brought to the immediate attention of legal counsel."
If you divulge a patient's HIV status, the patient could sue you for breach of physician-patient privilege, breach of confidential physician-patient relationship, invasion of privacy, and intentional or negligent infliction of emotional distress. If you fail to disclose this information, however, a third party could sue you for failure to warn, or intentional or negligent infliction of emotional distress.
There also may be claims for breach of a particular statute imposing a duty of confidentiality on HIV-related information. For example, a New York appellate court held that a plaintiff could seek punitive damages from a physician for breach of the physician's duty of confidentiality and violation of a New York law prohibiting disclosure of HIV-related information.2 "The failure-to-warn cases will be most successful in states such as Michigan, that have placed an affirmative duty on the physician to notify a sexual partner or a local health organization of the patient's status as HIV-positive," says Eiselein.
Physicians have been sued for disclosing HIV status in violation of a confidentiality statute, and failing to warn a third party about possible HIV infection.3,4
The American Medical Association's policy on HIV testing states that "Physicians must honor their obligation to promote the public's health by working to prevent HIV-positive individuals from infecting third parties within the constraints of the law. If an HIV-positive individual poses a significant threat of infecting an identifiable third party, the physician should: a) notify the public health authorities, if required by law; b) attempt to persuade the infected patient to cease endangering the third party; and c) if permitted by state law, notify the endangered third party without revealing the identity of the source person."
"Another idea is to inform the patient about the criminal liability he or she will face for willful or even negligent exposure," says Eiselein.
The majority of states have some type of statute criminalizing unprotected sexual activity of a person who is HIV-positive. "Some states even criminalize a person's failure to notify a sexual partner of his or her status as HIV-positive," says Eiselein.
Otherwise, says Eiselein, ED physicians generally are legally able to divulge a patient's medical information only when the patient consents or there is a court order compelling such disclosure. "Other than those two categories, the exceptions are very limited, and again, are heavily state law dependent," she says.
In addition, there are many state laws expressly prohibiting disclosure of a patient's status as HIV-positive. "This is an additional layer of patient confidentiality protection," says Eiselein.
- Tarasoff v. Regents of the Univ. of Cal., 118 Cal. Rptr. 129 (Cal. 1974) (Tarasoff I), modified by Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976) (Tarasoff II).
- Doe v. Roe, 190 A.D.2d 463 (N.Y. App. Div. 1993)
- Urbaniak v. Newton, 226 Cal. App. 3d 1128 (Cal. App. 1991)
- N.O.L. v. District of Columbia, 674 A.2d 498, (D.C. App. 1996).