Author ORCID Identifier
CDC, HIV transmission, Disability discrimination, Testing program legality, ADA, Risk assessment, Health care workers, Public health
The publicity surrounding the Bergalis case has created a new and powerful fear for some-the fear of contracting a fatal disease while obtaining medical or dental care. Following Bergalis' congressional testimony, Congress passed a bill requiring states to regulate HIV-infected health care workers (HCWs). Responding to constituents' fears, state legislatures had already been debating a wide range of bills designed to confront the risk of HIV transmission in health care settings. Private actors, such as hospitals and insurers, feared litigation or loss of business if the public perceived them to be ignoring the problem of HIV infection among HCWs. As a result, they also began restricting the practices of such workers or requiring disclosure of HIV status to patients.
The validity of this public and private activity must be evaluated in the context of the actual risk of transmission posed by HIV-infected HCWs. All agree that this risk is minute, even for the most intrusive and complex surgical procedures. The courts ultimately will be forced to determine which, if any, privacy invasions and practice restrictions imposed on HCWs are legally justified by this real albeit minimal risk.
Courts and legislatures considering HCW regulation must confront medical assessments of the risk. Part II of this article examines the evolution of public health policy toward HIV-infected HCWs, primarily as expressed by the federal Centers for Disease Control (the CDC). Objective assessments of the public health risk may be used to measure the legality of public and private discrimination designed to reduce that risk. Part III considers the legitimacy of public and private efforts to reduce the risk of transmission by restricting the practice of infected HCWs. Part IV analyzes the legality of HIV testing programs. Finally, Part V describes the components of a sensible state policy toward HIV-infected HCWs.
St. Louis University Law Journal
Mary Anne Bobinski, Risk and Rationality: The Centers for Disease Control and the Regulation of HIV-Infected Health Care Workers, 36 St. Louis U. L.J. 213 (1992).