Infected Provider Update

HIV-infected OR nurse sues hospital after dismissal

Even with ADA, infected HCWs face uphill battle

An HIV-positive operating room nurse fired by a Virginia hospital to "protect patients" has filed a lawsuit under the federal Americans with Disabilities Act (ADA).

Plaintiff "John Doe" seeks back pay and $300,000 in damages from Riverside Regional Medical Center in Newport News, VA, according to a lawsuit filed there December 5, 1996, in U.S. District Court for the Eastern District of Virginia.

According to the lawsuit, Doe is a registered nurse who was hired as an operating room nurse by the hospital on July 27, 1995 (effective Aug. 7, 1995). He was diagnosed with HIV infection in July 1994. Shortly after he began his employment, the hospital learned about his infection and fired him, the suit claims. In doing so, hospital officials made no effort to accommodate him with another job and without any regard to his disability — an infection that "may substantially limit major life activities as defined by the ADA," the suit charges. An attorney for the plaintiff could not be reached for comment, and the hospital would not offer any comment beyond a written release.

Hospital says it followed ADA rules

"A registered nurse applied for a job as an operating room nurse," the release says. "During orientation, it was disclosed that the individual was HIV positive. As a result, the individual was released after the seventh day of orientation, prior to assignment to patient care. The action taken was designed to protect our patients from exposure to transmittable disease, was in conformity with the Americans with Disabilities Act, and has taken into account guidelines established by the Centers for Disease Control and Prevention. Since this person has filed suit, we, on advice of counsel, will make no further comment."

The federal Equal Employment Opportunity Commission reports that HIV-infected people filed 1,276 claims under the ADA from July 1992 through September 1996 (no breakdown was available regarding health care workers). That total represents 1.8% of the total impairments cited by claimants. Most of the claims involve discharge from work or failure to find reasonable accommodation.

It appears generally that courts have viewed discrimination claims in other professions more sympathetically than those filed by HIV-infected heath care workers, says Larry Gostin, JD, LLD, professor of law at Georgetown University Law Center in Washington, DC, and director of the Law and Public Health program at Georgetown and Johns Hopkins University in Baltimore.

Health care is the exception

"With just about any kind of normal employment, the courts have been very sympathetic to persons with HIV/AIDS and have pretty much failed to tolerate any kind of discrimination in employment, public accommodations, or public services," he says. "The area where it has become much more difficult is in the health care setting. The courts have been very reluctant to defend health care professionals with HIV under the ADA."

ADA claims by infected workers have not been consistently upheld because there is still the perception that they pose "significant risk" to patients, he says.

A nurse has never been linked to occupational transmission of HIV, and the 1991 CDC guidelines cited by the hospital have been generally viewed in infection control circles to primarily apply to the surgeons and dentists who actually perform "exposure-prone" invasive procedures. Though the recent surgeon-to-patient transmission in France was only the second documented report of such transmission from a health care worker during the AIDS epidemic, the courts have not been particularly convinced by epidemiologic data underscoring minuscule risk.

"They still believe that it makes common sense that HIV could be transmitted because it is a bloodborne disease and heath care is an industry that deals with blood," Gostin says. "Therefore, courts have really not listened to the epidemiologic data showing that it is a very remote risk."