by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the June 1995 issue of the Journal
Question: My colleagues and I are confused and concerned about what a referring dentist may tell another dentist about a patient's HIV status. I have always assumed that a patient's HIV status is absolutely confidential, both under the dentist-patient privilege and the AIDS/HIV laws, and cannot be disclosed without a specific written consent from the patient.
Answer: You are correct that all reports and records pertaining to the HIV status of a patient are confidential and subject to the dentist-patient privilege. There are some limited, but specific, exceptions.
Confidentiality does not apply when information regarding the HIV status of a patient is provided to another dentist or health care provider for one of the following purposes:
- To protect the health care of an individual.
- To prevent further transmission of HIV; or
- To diagnose and care for a patient.
In addition, before identifying the patient, the referring dentist making the disclosure must determine that it is reasonably necessary to prevent a foreseeable risk of HIV transmission. This latter requirement could present a difficult legal issue.
It is therefore clear that the HIV status of a patient may be disclosed without the patient's consent to another dentist to whom the patient may be referred, but only if the criteria for the specific exemption applies. First, one of the three purposes must be met. This requires the application of sound professional judgment. The referring dentist should determine whether the information will be necessary to the other practitioner in accomplishing one of three purposes. If so, the second requirement must be considered: the referring dentist must determine that it is reasonably necessary to prevent a foreseeable risk of HIV transmission. This determination may present legal difficulties for the reason that all dentists are required to use proper infection control techniques with all patients. It could therefore be argued that this obligation is neither changed nor affected by the fact that a particular patient has HIV. It is suggested that a court would liberally interpret this requirement so as to facilitate the transmission of patient HIV information between dentists. On the other hand, no appellate courts have determined how the specific exception to the confidentiality requirement will be interpreted and applied.
Question: What should a dentist do in referring an HIV patient when the dentist is not certain that the criteria for the confidentiality exception is met?
Answer: The best approach in all instances is for the dentist to attempt to obtain a written consent signed by the patient authorizing the disclosure of the patient's HIV status to the dentist to whom the patient is to be referred. If the patient objects to the written authorization, the dentist should obviously be on guard. Only if the dentist is certain that the criteria for the exception without authorization is met should the disclosure be made without the patient's written authorization.
The written authorization must be specific to HIV. It must be signed by the patient, dated, specify as to whom the information will be given, and document that the information will include the HIV status of the patient. In other words, a general authorization without reference to HIV is legally insufficient.
If the individual is a minor or incapacitated, the authorization may be executed by the parent or legal guardian of the individual.
Question: What if the referring dentist discloses the HIV status of the patient to the other dentist, but the criteria for the exception is not met and no signed authorization was obtained?
Answer: A violation of this law is a misdemeanor, punishable by imprisonment for not more than one year or a fine of not more than $5,000, or both. The violator is also liable in a civil action for actual damages or $1,000, whichever is greater, plus costs and reasonable attorney fees. On the other hand, a person who releases the information in compliance with the specific requirements is immune from civil or criminal liability and administrative penalties including, but not limited to, licensure sanctions, for the release of the information.