Saturday, January 01, 2005
by Daniel J. Schulte, J.D.
MDA Legal Counsel
Published in the January 2005 issue of the Journal
Question: I recently referred a patient to a specialist. The specialist tells me that this patient is HIV-positive. The patient never told me she was HIV-positive. Can I ask patients if they are HIV positive? Do I have to continue treating my existing patients who become HIV-positive, and/or accept new patients who are HIV-positive?
Answer: The answer is generally “yes” to both of these questions. It is not considered discriminatory to ask about the disease status of a patient if the information obtained is used to determine the proper treatment of the patient. To guard against claims of discrimination you should ask all patients to indicate on a health history form if they are HIV-positive and/or have other diseases. Patients should be asked to update all of the information contained on any previous health history form upon each visit to your office.
Whether the law requires you to continue treating patients who become HIV-positive and/or to not refuse to accept new patients based solely on the fact they are HIV-positive depends on whether: (i) being HIV-positive is considered a disability by the Americans with Disabilities Act (the “AwDA”); and (ii) providing the particular treatment to the patient creates a direct threat of transmission of the disease to you. The AwDA generally prohibits you from discriminating in who you decide to treat based upon a person’s disability.
The AwDA states that any “physical or mental impairment that substantially limits a major life activity” is considered such a disability. The U.S. Supreme Court has held that being HIV-positive will usually lead to the determination that a person has a “disability” as defined by the AwDA. Most lawsuits involving dentists and other health care providers who have refused to provide treatment to a patient because the patient was HIV-positive have been decided in favor of the patient. In some rather high-profile cases involving dentists who have refused to treat, the courts have found that the risk of the dentist becoming infected is not significant enough to constitute a “direct threat” to the dentist or others in the dentist’s office.
These cases have all involved relatively simple procedures (e.g., filling cavities, prophies, etc.). What has yet to be decided is whether cases involving bloodier treatment, such as periodontal surgery, would be decided similarly or if the direct threat of HIV transmission would then be present. The determination in such a case would depend on the amount of the increased risk of transmission inherent in the procedure to be performed on the patient and the reasonableness of the measures that would have to be taken by the dentist to reduce the risk of transmission to an acceptable level.
Given the pro-patient decisions that have been made in all of the cases to be decided so far, dentists should not refuse to continue to treat their patients who become HIV-positive, nor should they refuse to accept new patients based solely on the fact that they are HIV positive.