The Dentist, HIV
and the Law: Duty to Treat, Need to Understand
David 1. Schulman, JD
Editor's note: Because. of a perceived need for continued
attention to the legal considerations governing treatment of
HIV-infected patients in the dental office, David L Schulman,
JD, author of the well-received 1993 CDA Journal article "The
Dentist, HIV and the Law.- Duty to Treat, Need to Understand"
was asked to write a new article updating changes in this area.
His response was that, except for a recent decision in a key
court case and a few changes to the references, the original
article still reflects the current law on this topic. For our
readers' benefit and understanding of this complex issue, we are
reprinting the original article with a new author's preface to
make note of that important court decision.
I am pleased to write a new author's preface to the article,
"The Dentist, HIV. and the Law: Duty to Treat, Need to
Understand," which originally appeared in the September 1993
issue of the CDA Journal as part of an issue on HIV and
original article discussed the three important areas of law that
dentists should understand in order to meet their
responsibilities to HIV-infected patients, as well as their
staffs: anti-discrimination, workplace safety, and privacy and
confidentiality. Those three areas continue to form the
framework for proper handling of HIV and AIDS issues within the
reprint the article? And why should those who read it the first
time read it again? The answer lies in the renewed attention
about dentists and AIDS discrimination generated by one of
1998's most closely watched U.S. Supreme Court cases. Bragdon v.
Abbott (note 1) concerned a dentist's claim that he had a right
to refuse to treat a person with HIV because of the infectious
risk she posed.
office filed a friend of the court brief in Bragdon , and cited
our Joumal article to the court. (note a) . So we were pleased
when the Supreme Court, in its ruling handed down last June,
held that dentists do have a duty to treat people with HIV. In
so holding, the court rejected Bragdon's claim that courts
should defer to his assessment of whether a patient with HIV
posed too much risk to him, his staff, or other patients.
Instead, the court ruled, deference should be given to the
opinion of public health authorities, because they are the ones
best trained to assess risk. Bragdon could present evidence to
rebut their conclusions, but he could he could not claim that
his opinion about the infectious risk posed by the HIV-positive
patient in the case should override that of public health
historical perspective helps explain the fears of those like Dr.
advent of the AIDS epidemic marked the end of a brief "golden
age" of infectious disease control that began with the first
polio vaccine in 1954, and ended in 1981 with the first AIDS
case reports. That brief golden age was when many professionals
were trained in their fields. It was a time when everyone -
dentists, infectious disease specialists and the public alike -
came to believe that the eternal threat of epidemics had been
vanquished forever, at least for those nations wealthy enough to
afford the latest technology.
So it was
a great shock when AIDS appeared and undermined our sense of
invulnerability. Those coming into dentistry today know about
bloodborne infectious risks. But for those who grew up or were
trained during that brief golden age, their shaken sense of
invulnerability sometimes translates into mistrust of the data,
and of those responsible for assessing it. Bragdon resoundingly
rejected those fears.
citations in the original article are to California cases and
statutes, its basic approach is useful anywhere. And while it is
written specifically for dentists, the analysis is applicable to
all health care providers' duty to treat - and, it is hoped, to
An understanding of three areas of law - anti-discrimination,
workplace safety, and privacy and confidentiality-is helpful to
dentists in meeting their responsibilities to treat HIV-infected
individuals. This understanding also will assist in establishing
a practice atmosphere in which HIV-infected patients will feel
comfortable enough to fully disclose their condition and discuss
treatment options with the care provider.
are often the first to notice the clinical changes that signal
the onset of symptomatic HIV disease, making them vital to
helping HIV-infected people maintain good health. Yet too
frequently the relationship between the dentist and the
HIV-infected patient is adversarial.
hide their status, even when they know they are withholding
information important to their care, because of discrimination
and rejection experienced with other dentists. In turn, this
mistrust and lack of candor makes caring providers feel
frustrated and abused.
the tensions in this important relationship be changed?
purpose of this article is to lessen such tensions by
acquainting dentists with HIV-related law, and the policies and
purposes behind such regulations. In doing so, we hope to assist
in establishing an atmosphere of confidence and trust - for all
dental patients, office staff and dentists.
author brings a unique perspective to this discussion: the
AIDS/HIV Discrimination Unit of the Los Angeles City Attorney's
Office is the only government agency in the country that both
enforces an AIDS civil rights law and advises a large employer,
the City of Los Angeles (an employer of 40,000), regarding it
own legal rights and duties. While the city does not have
dentists on staff, its police, firefighters, paramedics and
medical staff face similar challenges - and responsibilities.
article shares an approach that has proved useful in assisting
city staff to meet their responsibilities. This approach
requires an understanding of three legal areas -
anti-discrimination, workplace safety, and privacy and
tips to help the dentist meet legal responsibilities and
establish an atmosphere in which HIV-infected patients will feel
comfortable fully disclosing their condition also are offered.
rely on this article to answer specific legal questions. These
should be reviewed with your own attorney, though he or she may
find this a useful resource.
non-discrimination, workplace safety, and privacy and
confidentiality law form a framework for understanding AIDS
legal duties. This framework rests upon a fundamental finding
that requires discussion first -- that HIV is bloodborne. HIV
legal analysis depends upon this finding, for very different
rights and responsibilities would follow if HIV's vector of
transmission were different -- if it were airborne, for example.
is bloodborne is as solid a foundation upon which to base law
and policy as are other findings that we base decisions upon
every day. It has been examined in courtrooms across America
dozens, if not hundreds, of times. In case after emotional case
involving such highly charged issues as the right of
HIV-infected children to attend schools, courts have regularly
upheld this foundational-matter.
emphasize this finding's firmness because so many insist, when
it comes to HIV, that they receive absolute assurance -- despite
the fact that science, of course, cannot provide such assurance
for certainty is understandable, for HIV is frightening. It
helps, however, to place it in context.
tremendous breakthroughs -- the identification of microbes that
cause disease, the emergence of antisepsis and sanitation, the
discovery of antibiotics -- led many professionals and lay
people alike to believe that epidemics had now become things of
the past, at least for industrialized nations.
we thought we had forever rid ourselves of this fundamental
terror, the advent of an epidemic of a previously unknown
pathogen with a different vector of transmission revived the
ancient impulse to scapegoat and blame -- and gave it added
virulence. In America, this impulse was made worse yet, because
HIV broke out first among already stigmatized groups - gays and
IV drug users. Because of the intersection of IV drug use,
poverty and race, many were further stigmatized because they
were African American or Hispanic.
that there was a new epidemic at all combined with the fear of
those who are different, of those with disease, and of death
itself, to create the discrimination problems
anti-discrimination law combats.
AIDS ANTI-DISCRIMINATION LAWS
of Los Angeles enacted the nation's first AIDS
anti-discrimination law in August 1985, the month following the
disclosure of Rock Hudson's illness. Today, AIDS discrimination
is illegal throughout the United States under the Americans with
Disabilities Act of 1990 and the Federal Rehabilitation Act of
1973, as well as many state and local statutes. In California,
the Fair - -- Employment and Housing Act was amended to include
HIV in its definition of disability, and the Unruh Civil Rights
Act prohibits discrimination in the provision of services.
combat the impulse to scapegoat and blame by extending to people
with HIV the same protections that society has evolved for all
who are disabled. Under such laws, dentists may not refuse to
treat HIV-infected people, just as they may not refuse to treat
other disabled people - or members of other groups that have
been singled out historically for discrimination, such as
African Americans, women, or Jews.
rights laws do not require dentists to treat every black person,
woman, Jew, or disabled patient who seeks care. For instance, an
African American patient with a problem a dentist is not
qualified to treat should be refused care and referred to a
specialist, just as any patient presenting a problem beyond the
scope of a dentist's competency should be.
laws do require, however, that stereotypes, generalizations,
misapprehensions and prejudices about such groups not be applied
to individuals. For instance, dentists cannot refuse to treat
African Americans because of bigotry or prejudice.
Similarly, disability right laws require that overly broad
generalizations about disease be set aside in favor of
individually based evaluation. For instance, dentists may not
refuse to treat all heart patients. However, those who have just
had open-heart surgery who are too medically fragile to be
treated in a private operatory should be referred to care in a
more sterile environment.
the same way, dentists can't refuse to treat all HIV-infected
patients. For instance, asymptomatic HIV patients should never
be refused care merely because they have HIV, because
asymptomatic patients, by definition, present no clinical
symptoms that might be beyond the scope of a dentist's
competency and training.
other hand, an HIV-infected patient with a tooth in the middle
of a Kaposi's sarcoma lesion that needs to be extracted should
be referred to an oral surgeon, just like other patients
requiring complex extractions.
in all cases is an individualized approach based on each
person's particular condition. Dentists may not plead ignorance
as a reason for refusing to treat HIV-infected patients. As
professional codes of conduct and community standards of
practice make clear, dentists must know about H IV just as they
must know about other common medical conditions.
dentists refuse to treat HIV-infected patients because they are
The U. S.
Supreme Court in 1987 established a two-part test for
determining when an infectious risk was so great that it
justified discrimination. In School Board v. Arline , (note 2)
the court held that, before discrimination was justified, (1)
the risk to others must be reasonably accommodated and (2) the
remaining risk must still be significant.
have shown (note 3) that HIV poses nothing remotely approaching
a significant risk of transmission in dental or health care
settings even without reasonable accommodation. With reasonable
accommodation - that is, proper infection control, which is
discussed in the next section - HIV's already remote risk is
reduced even more.
and others who encounter blood in the workplace used to maintain
a two-tier approach to workplace safety to protect against
exposure to bloodborne disease. For patients showing clinical
signs of disease, heightened precautions involving barriers,
disinfection and waste disposal were used. For all others, blood
was handled more casually.
the discovery of slow-acting viruses in the mid-I 970s, the
dangers of this approach became apparent. People infected with
slow-acting viruses (called lentiviruses, from the Latin word
for "slow") are always infectious even though they might not
become ill for years. A workplace safety system, then, that
required precautions only when someone appeared ill protected
staff from only a small portion of those who actually posed
risk. The result was a substantial rise in hepatitis B infection
rates among dentists and other health care workers. (notes 4, b)
response experts proposed that this two-tier approach to
workplace safety be abandoned in favor of one that treated all
blood, at all times, from all sources, as if it were infectious
-- a strategy called universal precautions.
precautions were developed because of the threat posed by
hepatitis S. By 1985, however, the Centers for Disease Control
and Prevention recommended them to prevent transmission of HIV,
another lentivirus, though one far less infectious than
hepatitis B. (note 5)
federal law now require the use of universal precautions, (notes
4, 6, 7) and the failure to maintain them is deemed to be
unprofessional conduct by the California Patient Protection Act
of 1991. (note 7) CDC has issued dental infection control
recommendations that discuss universal precautions in detail.
universal precautions require the same high standard of
infection control for all patients, it is discriminatory to
impose a surcharge for such measures for HIV-infected patients.
another interesting policy consequence of the "universal" nature
of universal precautions. Not only is disclosure not necessary
for staff safety, it can actually increase risk. This conclusion
seems counterintuitive initially. It seems obvious that
disclosure would lead dentists to be more careful with infected
patients, even if they followed universal precautions properly
-- that is, for everyone. Studies by occupational safety
specialist Dr. Julie Gerberding at San Francisco General
Hospital suggest, however, that such hypervigilance may actually
Dr. Gerberding's research suggests that hyper-vigilance may
increase exposure rates because staff, self-conscious about
their patients' status, become awkward in their surgical
procedures and techniques. (notes 9, c)
Disclosure can also actually increase risk by leading staff to
assume it's OK to revert to more casual precautions for patients
who aren't known to be infected -- but may be.
Angeles City Attorney's Office recommended that the city's fire
department not broadcast the HIV status of rescue victims to
paramedics because of these staff safety disclosure concerns, a
recommendation the department has adopted. (note 10)
PRIVACY AND CONFIDENTIALITY
anti-discrimination and workplace safety principles are
understood, HIV privacy and confidentiality protections-make
do not have the right to require disclosure of HIV test results
so they can refuse to treat because disability rights law
prohibits refusing to treat solely on the basis that a patient
Similarly, dentists have no right to require disclosure so they
can decide when to take proper safety precautions because state
law requires that such precautions be in place at all times,
with all patients.
arguably have the right to require disclosure when it is
relevant to proper patient care and treatment, just as all
relevant medical information should be disclosed.
HIV-infected patients, however, admit lying on medical
questionnaires for fear, often based on many painful
experiences, that they'll be refused care if they disclose
truthfully. Such behavior is not in the patient's own best
interest, nor does it foster trust and goodwill with his or her
then, face two privacy challenges - establishing an office
environment in which HIV-infected patients trust they can be
candid about their condition and properly protecting such
information when it is disclosed.
end of this article there are suggestions to help make patients
feel safe enough to make full disclosures. In this section,
though, we discuss your duty to protect such information when
you receive it.
has long extended special privacy protection to information,
such as a diagnosis of mental illness, that is especially likely
to lead to stigma and ' discrimination if disclosed.
has begun to extend such special protection to HIV information,
but since this area of law is still evolving, dentists must
consult their own attorneys to determine its precise impact on
levels of protection have emerged so far: general statutory and
common- law privacy protections, special HIV laboratory test
result protections, and state and federal constitutional privacy
General Statutory and Common-Law Duties
level of HIV privacy protection is the dentist's general
statutory and common-law duty to protect all medical information
in his or her possession because such information is disclosed
only for the purpose of the patient's care.
long ago, dentists, physicians and other care providers were
more aware of the need to protect patients' privacy because the
stigma caused by fear and ignorance about many medical
conditions was common. More recently, however, sensitivity to
patient privacy has decreased as scientific knowledge replaced
myth and ignorance about so many conditions. It has decreased,
as well, as disclosure to third parties -- insurance companies
and utilization review committees, for example -- has become so
damaging consequences of disclosure have diminished, care
providers have had little incentive to remain vigilant about
protecting privacy since lawsuits would only be filed when
damages could be proved.
ignorance about HIV has dramatically reversed this trend.
Wrongful disclosure of HIV information can result in substantial
injury, including loss of employment, cancellation of insurance,
eviction, even abandonment by family and friends. To protect
against the substantial liability for consequential and punitive
damages they can face under general statutory anc[ common-law
privacy provisions, dentists should re-educate themselves about
their general duties to protect patient privacy.
and Safety Code Provisions
second level of HIV privacy protection specially protects HIV
laboratory test results. These provisions, codified as Chapter
7, Part 4, Division 105 of the California Health and Safety
Code, (note d) impose special statutory duties regarding HIV
testing and disclosure.
Chapter 7 imposes special duties and burdens, it helps to
understand its background. It was originally enacted in 1985, at
the time the HIV test was first licensed to protect the state's
blood supply, in response to public health concerns that arose
with the HIV tests first commercial availability.
concern was that if the test were not available elsewhere,
people wishing to learn their HIV status would donate blood for
that purpose. This caused concern since no screening test could
be 1 00 percent reliable: More high-risk individuals donating
blood could mean more false-negative blood entering the blood
supply. In response, legislation was enacted to create special
alternative, anonymous test sites.
second concern was to create an incentive for people to get
tested despite the fear they might become victims of
discrimination. Chapter 7 was enacted in response.
(beginning at Section 120975 (note e) of the Health and Safety
Code) requires special patient consent before an HIV test may be
conducted, imposes special civil and criminal penalties for
unauthorized test result disclosures, requires specific written
authorization for each disclosure, prohibits use of the test for
health insurance or employment purposes, and forbids
unauthorized test result disclosure, even in response to a
against unauthorized disclosure, many dental and health care
providers chart test results in a separate portion of the
patient's chart on a different color of paper, and train their
records staff never to include them in filing insurance claims
or in response to other record requests.
the important public policy purposes of Chapter 7, its
provisions have been the source of some confusion and concern.
As originally enacted, many believed it prohibited a member of
the test subject's health care team who was authorized to
receive the test result from disclosing it to another member of
the team who was not specifically authorized to receive it. A
subsequent amendment remedied this problem so that now a single
authorization permits all care providers access to the test
result for the purpose of patient care.
problem was Chapter 7's scope. Since its purpose was to halt
discrimination by protecting privacy, many thought that it
prohibited disclosure of such statements as"I'm HIV positive" as
well as the actual laboratory test results, since such
statements derive solely from the test. Some even thought it
included such statements as "I have AIDS," since they, too,
usually are based in part upon a positive test.
California appellate court case, Urbaniak v. Newton , (note II)
rejected these more expansive interpretations. In Urbaniak , the
plaintiff claimed he disclosed he was HIV-positive to a nurse
for the sole purpose of protecting her and others from her
unsafe handling of instruments contaminated with his blood, and
asked her not to make further disclosures. When she did, he
claimed she and those who made subsequent disclosures violated
The Urbaniak court rejected the plaintiff s claim and ruled,
instead, that Chapter 7's scope was limited only to actual
laboratory test results. Dentists should consult their own
attorneys to determine the impact of Urbaniak on their practice,
especially in light of the court's ruling discussed in the
section that follows.
Constitutional Right to Privacy
the Urbaniak court ruled that the nurse's alleged disclosure did
not violate Chapter 7, it did rule that her alleged actions
violated California's constitutional right to privacy. Unlike
the federal right, which is limited to government action,
California's constitutional right to privacy regulates private
actions as well -- such as the activities of dentists.
can be no doubt that disclosure of HIV-positive status may under
appropriate circumstances be entitled to protection under [the
state's constitutional right to privacy]. The condition is
ordinarily associated either with sexual preference or
intravenous drug uses. It ought not to be, but quite commonly
is, viewed with mistrust or opprobrium.... [I]t is clearly a
'private fact' of which the disclosure may 'be offensive and
objectionable to a reasonable [person] of ordinary
sensibilities. "' (note 12)
likely that other courts will conclude that this ruling should
be applied to all HIV information -- an AIDS diagnosis, a
patient's T-cell count or information about HIV-related drugs,
for example -- since such disclosures are all likely to result
in the stigma and discrimination which concerned the court in
Urbaniak . A line of federal cases also extends federal
constitutional protection to such information. (notes 13 - 17)
review with your own counsel the impact the imposition of a
constitutional duty to protect patient privacy would have on
your own practice. We have advised Los Angeles' fire department
that we do not believe such protections prohibit further
disclosures that are essential to the purpose for which an
initial disclosure was made, such as the care and treatment of a
patient, for example. (note 10) It does mean, in our opinion,
that courts will, under this standard, strictly scrutinize the
reasons for each disclosure, impose heightened duties to protect
such sensitive information against improper disclosure, and
impose more severe penalties for wrongful disclosures.
then, can the well-intentioned dentist in private practice make
his or her way through this still evolving array of privacy
requirements and protections?
first, to remember that HIV privacy laws are emerging in
response to a real problem -wrongful disclosure of patients' HIV
information can hurt and injure by leading to discrimination. As
a federal court observed in one of the earliest HIV privacy
"[T]here are few matters of a more personal nature, and there
are few decisions over which a person could have a greater
desire to exercise control, than the manner in which he reveals
[an AIDS] diagnosis to others. " (note 18)
like others in society to whom such volatile information is
entrusted, must learn to protect it properly. That does not
mean, as some have concluded, that such information cannot be
used. Indeed, dentists may be under a duty to disclose a
patient's HIV information when relevant to proper patient care,
such as when making a referral to a specialist. Even HIV
laboratory test results may need to be disclosed, with proper
authorization pursuant to Chapter 7.
of a solution to these issues is to develop record-keeping
systems and staff training that ensure that HIV information is
properly used, but not abused. This is difficult in an era in
which our sensitivity to the need for medical privacy has
generally weakened. It is made more difficult still by the fact
that patient records are used for many more purposes than when
they were kept primarily for the care of the patient.
when this should be done, and with what kind of consent from the
patient, should be carefully considered and reviewed with your
developing an approach to protect privacy, it helps to take the
tirne to educate staff well, and to review who has access to all
records and why. Review all office record-keeping policies.
office policies with an attorneys When the need to disclose HIV
information arises, such as when you refer patients to a
specialist, determine whether special waiver forms should be
developed for patients to sign that
why you need to disclose such information. These efforts will
help establish that you were aware of the importance of patient
privacy, and took steps to safeguard it. Should a mishap occur
and a patient's information be wrongfully disclosed a court is
far more likely to look favorably upon a practice that sought to
protect patient privacy, but failed, than on one that never took
steps to address such important issues at all.
a range of other steps dentists can take once they have learned
about their duties to treat, maintain a safe work environment,
and protect patient privacy.
first and foremost is repeated, effective staff training. Staff
should learn why compliance with anti-discrimination,
occupational safety and health, and patient privacy protection
requirements makes sense so that these fundamentals are not
perceived as unreasonable burdens and demands.
protect patient privacy, staff should learn not to post charts
where others can see them, and not to talk about patients'
conditions in areas of the office where they might be overheard
by other patients.
atmosphere should be established in which HIV-infected patients
feel free to be candid about disclosing their status. Most don't
want to withhold such information because they know it's
important to their own optimum, sound treatment. Three
statements at the top of your medical intake questionnaire can
signal your patients that they can be candid with you:
office does not discriminate on the basis of race, sex,
sexual orientation, national origin, age, or disability.
office is in compliance with the latest state and federal
infection control requirements.
office protects the privacy of all patients.
patients won't notice the first and last statements, and will be
reassured to read the second. Your HIV-infected patients,
however, will read between the lines and know that you
understand -- and care.
has been to acquaint dentists with the ways HIV law is evolving
a balance between fears and the duty to treat others as we would
want to be treated ourselves.
epidemics, law often served to justify the scape-goating and
blame that so often was a substitute for knowledge and
understanding. Today, law serves as a bridge, connecting those
who are ill with those who care.
cannot mandate understanding. But with understanding, the law's
requirements can make sense, allowing us to see ourselves in the
other, and our humanity in ourselves.
Acknowledgement. The author thanks Brad Sears, director of the
HIV Legal Check-up project of HALSA, the HIV & AIDS Legal
Services Alliance for Los Angeles County, for research
assistance in the preparation of the author's preface.
David 1. Schulman, JD, is supervising attorney of the Los
Angeles City Attorney's AIDSIHIV Discrimination Unit, and a
member of the dental steering committee of the Pacific AIDS
Education and Training Center, a federally funded regional HIV
clinical training program for health care providers.
brief can be found on the Los Angeles City Attorney's
Hepatitis Branch of CDC estimated that, in the 1980s, there
were approximately 200 health care worker deaths each year
from occupationally acquired hepatitis B, along with 2,100
cases of clinical acute hepatitis and 8,700 infections
overall. (note 4)
Gerberding's colleagues at San Francisco General learned
something else that does not at first seem obvious: that
surgical gloves may provide protection against needlestick
transmission, even when punctured, by reducing the amount of
innoculum injected into the skin by at least 50 percent.
that while this citation is different from the one in the
original article, the statutes discussed remain the same;
they merely have been renumbered.
120975 was originally numbered Section 199. 20.
S. 624 (1998)
S. 273 (1987).
E, Occupational Risk of Acquired Immunodeficiency Syndrome
Among Healthcare Workers. New Eng J Med , 314:1127-32, 1986.
Dept. of Labor, Occupational Safety and Health
Administration, 29 CFR Part 1910. 1030, Occupational
Exposure to Bloodborne Pathogens; Final Rule 56 Federal
Register 64,009, Dec. 6, 1991.
Recommendations for Preventing Transmission of Infection
with Human T-Lymphotropic Virus Type
III/Lymphadenopathy-Associated Virus in the Workplace. 34
MMWR 681, 683,1985.
California Occupational Safety and Health Standards Board,
Title 8, Calif. Code of Reg. , Section 5193 (adopted Jan. 6,
California Patient Protection Act of 1991 (SB 1070) B & P
Code Section 1680 (dd).
Recommended Infection Control Practices for Dentistry, 1993.
42 MMWR , No. RR-8, 1993.
Gerberding JL, Liftell C, et al, Risk of exposure of
surgical personnel to patients' blood during surgery at SF
General Hospital. New Eng J Med , 332:1788-93, 1990.
from Los Angeles Deputy City Attorney David 1. Schulman to
Los Angeles Fire Battalion Chief Dennis R. Keane re:
Disclosure of HIV or AIDS information regarding patients
receiving emergency medical services (Dec. 21, 1992).
App. 3d 1128 (1991). Please note that the statutes discussed
in the case have since been renumbered by the Legislature.
See note d , above.
, p 1140.
v. Thigpen, 941 F. 2d 1495 (11th Cir. 1991)
v. County of Erie , 776 F. Supp. 715 (E. D. NY 199 1).
Borough of Barrington , 729 F. Supp. 376 (D. NJ 1990).
Coughlin , 697 F. Supp. 1234 (N. D. NY 1988).
White, 689 F. Supp. 874 (W. D. WI 1988).
Coughlin , p 1237.