HIV Infection and AIDS in the Public
Health and Health Care Systems
The Role of Law and Litigation
JAMA HIV/AIDS Information Center
Vol. 279, pp. 1108-1113, Apr. 8, 1998
Lawrence O. Gostin, JD; David W. Webber,
The AIDS Litigation Project has reviewed
nearly 600 reported cases involving individuals with human
immunodeficiency virus (HIV) infection and acquired
immunodeficiency syndrome (AIDS) in the federal and state
courts in the United States between 1991 and 1997. Cases were
identified through a federal and 50-state computer and library
search. An important subset of litigation relates to HIV/AIDS
in the public health and health care systems, since the law
affects health care institutions and professionals, patients,
and public health policy in America. This subset of HIV/AIDS
litigation includes testing and reporting; privacy, the duty
to warn, and the right to know; physician standards of care in
prevention and treatment; and discrimination and access to
health care. In broad terms, the review demonstrates a
reliance on voluntary testing and protection of patient
privacy through HIV-specific statutes and the common law.
Negligence with potential civil and criminal liability has
been alleged in cases of erroneous or missed diagnosis of HIV
infection. In the first AIDS case to be considered by the
Supreme Court, the Court will decide whether patients with
asymptomatic HIV infection are protected under the Americans
With Disabilities Act. Considerable progress has been made,
both socially and legally, during the first 2 decades of the
epidemic, but much still needs to be accomplished to protect
privacy, prevent discrimination, and promote tolerance.
Editor's Note: For a comprehensive report
on the AIDS Litigation Project, see 2 articles from the AIDS
& Public Policy Journal that are available in full text on
this site with the kind permission of that journal's
publisher. The articles analyze cases involving the duties of
government and individuals in preventing HIV transmission
(Part I), as well as those involving the rights of individuals
[*] Identifying Cases of HIV Infection
[*] Privacy, Duty to Warn, and the Right
[*] Prevention and Treatment
THE EPIDEMIC of human immunodeficiency
virus (HIV) infection and the acquired immunodeficiency
syndrome (AIDS) has had powerful personal, social, and
economic effects throughout America—in employment, housing,
insurance, education, prisons, and many other aspects of
life. Yet, perhaps the most profound effects of the
epidemic have been in the public health and health care
systems. Public health and medicine have responsibilities
to monitor, prevent, and treat HIV infection. At the same
time, the nation has struggled with the task of reconciling
patients' rights to privacy and nondiscrimination with
collective rights to public health protection.
Given the high degree of ongoing social
conflict caused by the epidemic, it is not surprising that,
unlike past infectious disease outbreaks, attempts to resolve
contentious issues consistently involve the courts and
legislatures at all levels. Furthermore, because of the high
level of patient activism and advocacy, as well as immediate
public access to new developments in scientific and medical
information, including that available via the Internet, law
and policymaking have not been the exclusive preserve of
medical experts or other professional specialists. The
resulting democratization of policymaking processes has
heightened the impact that legislatures and courts have had on
the public health and health care systems.
Deeply divisive questions have emerged
relating to informed consent for HIV testing, named HIV
reporting, confidentiality vs the duty to warn, and an
HIV-infected physician's right to practice. These and many
other questions have come to be decided by legislatures and
courts. The results are by no means uniform or consistent.
Court decisions in similar cases sometimes conflict, and
legislatures in different jurisdictions at times take markedly
different approaches. Nevertheless, legislation and litigation
provide a window through which the HIV epidemic's troubling
questions, arising in relation to the delivery of health care
services and the formulation of complex public health policy,
can be examined.
This article is part of the AIDS
Litigation Project,[3,4] which has reviewed nearly 600 cases
reported in the federal and state courts in the United States
between 1991 and 1997. The methods involved a federal and
50-state computer and library search of all reported cases
involving HIV infection or AIDS. This article discusses an
important subset of litigation relating to HIV/AIDS in the
public health and health care systems. (The complete AIDS
Litigation Project report can be found in the Library section
of the HIV/AIDS Information Center at http://www.ama-assn.org.)
IDENTIFYING CASES OF HIV INFECTION:
TESTING AND REPORTING
Issues of law and public policy take on
new urgency as the HIV/AIDS epidemic experiences a paradigm
shift. Combination antiviral therapies and clinical
prophylaxes provide for the first time an opportunity for a
longer, higher quality of life for persons living with HIV.
Combination therapies have markedly reduced the incidence of
AIDS, have lowered rates of perinatal transmission,[7,8]
and potentially may diminish infectiousness by decreasing
viral load. With these new treatment opportunities, it becomes
critically important to identify persons at the earliest
stages of HIV infection and to ensure full and fair access to
the health care system.
Testing, since the approval of an HIV
antibody test in early 1985, has been considered essential
for HIV prevention. With more recent advances in antiviral and
prophylactic treatments, testing has also become important as
an entree into the health care system. Public health and
medical authorities recommend that all persons at risk should
know their serologic status, and many want to see the "routinization"
of HIV testing. A broad range of testing services are
desirable, such as testing by primary care clinicians and
hospitals, public clinics, "alternative" (anonymous)
test sites, and home testing. The technological development of
"rapid" tests and analyses of saliva and urine will
make testing easier for the public.
Despite the manifest clinical and public
health benefits, testing may result in loss of privacy,
increased social stigma, and discrimination. As a result, many
state legislatures have enacted special requirements for HIV
testing. State legislation requires informed consent, often in
writing, as well as pretest and posttest counseling. While
counseling and consent are thought to be important to enhance
patient autonomy, ironically, they do make it more burdensome
for health care professionals to "routinize" HIV
testing and bring it into the mainstream of medicine.
Voluntary testing is almost universally
recommended, and most states have abided by an ethic of
voluntarism. Compulsory, nonconsensual testing has been
undertaken only in limited circumstances and principally for
nonmedical purposes. Thus, mandatory tests are imposed, for
example, on US military and foreign service personnel,
immigrants, and certain sex offenders.[13,14] In the
health care setting, however, compulsory testing violates
statutory and common law requirements for informed consent and
may violate nondiscrimination statutes or constitutional
prohibitions against unreasonable searches and seizures.
Although a Pennsylvania court held that HIV testing without
patient consent or knowledge did not violate state common law
doctrines of informed consent or invasion of privacy, that
ruling was subsequently overturned by statute.
Some states permit nonconsensual HIV
testing of patients in limited circumstances. An Alabama
statute, for example, allows testing without consent if (1)
the patient is at "high risk" of infection; (2)
knowledge of the patient's serologic status is necessary for
medical care; or (3) knowledge of HIV status is needed for the
protection of health care personnel. A federal district court
found the high-risk classification to be unconstitutional
because a patient could be arbitrarily classified, but upheld
the other 2 classifications. Many states allow compulsory
testing to determine the HIV status of a patient in the event
of an injury to a health care worker, emergency response
employee, or corrections officer that poses a risk of HIV
Scientific evidence that anti-HIV therapy
could significantly reduce perinatal transmission, together
with new treatment opportunities for newborns, has led
legislatures to consider mandatory testing of pregnant women
and newborn infants. Under federal law, states must at a
minimum follow Centers for Disease Control and Prevention (CDC)
guidelines recommending counseling and voluntary testing for
all pregnant women. If federally set targets for reduction of
perinatal HIV transmission are not met, mandatory measures
ensue. At the state level, several legislatures have
enacted laws that mandate counseling and make voluntary
testing available. These federal and state statutes may set a
standard of care in tort, so that failure to counsel and offer
testing to pregnant women may result in physician liability
for wrongful life or wrongful birth in the event that the
infant is born with HIV infection. New York has enacted a
law requiring mandatory testing of newborns, even though a
positive antibody test reveals the serologic status of the
mother. New York's law also requires disclosure to the mother
and protects confidentiality. That law is currently under
court challenge on constitutional grounds.
Since the earliest moments of the
epidemic, all states have required named reporting of CDC-defined
AIDS. By contrast, 28 states require HIV reporting, and 3
additional states conduct HIV surveillance for pediatric cases
only. All HIV reporting states except Maryland and Texas
are name based. The CDC recently recommended that all
states move to a system of HIV surveillance. The CDC also
recommends that states (unless otherwise required by state
law) provide alternative test sites where names of persons
with HIV infection are not reportable. Ten states proscribe
nonreportable, anonymous testing. North Carolina's closure
of publicly funded anonymous HIV test sites was upheld as a
valid exercise of the state's public health powers.
The predominantly voluntary approach to
HIV testing and the absence of a national HIV surveillance
system has resulted in concerns that HIV/AIDS has acquired a
special or "exceptional" status. In New York
State, prominent medical organizations sued to compel the
health commissioner to include HIV in the official list of
sexually transmitted diseases (STDs). By failing to classify
HIV as an STD, the commissioner declined to trigger his powers
for compulsory testing, reporting, and contact tracing. New
York's highest court held that the classification of diseases
was within the commissioner's discretion and affirmed the
reasonableness of his belief that the exercise of mandatory
powers would not serve an important public health purpose.
PRIVACY, DUTY TO WARN, AND THE RIGHT TO
Privacy of HIV data has been thought to
be necessary for both patient autonomy and public health.
Privacy safeguards against social stigma and discrimination
and allows each person to make decisions for herself
concerning disclosure. Privacy also supports trusting clinical
relationships and participation in public health services such
as testing, counseling, and partner notification. Most states
have HIV-specific statutes requiring confidentiality of HIV
data. Litigation claiming wrongful disclosure of
HIV-related information has been commenced against numerous
individual and institutional providers during the course of
the epidemic, including hospitals, physicians, and
Guided by the mandates of the
provider-patient privilege and state HIV confidentiality laws,
health care professionals are generally prohibited from
revealing a patient's HIV-related information. In fact,
some state privacy statutes specifically protect HIV
information within the health care or social service
setting. Intentional disclosure is only 1 way to breach
confidentiality. A health care facility's negligent failure to
protect a medical record from disclosure may also violate
privacy. However, not all disclosures result in liability.
If the health care provider can present a compelling reason
for disclosure, a court may allow it. The courts balance the
need for the disclosure against the harm done to both the
individual's privacy and the public interest and often have
little difficulty finding against the individual's privacy
right. Using such a test, a Pennsylvania court authorized a
hospital to disclose a physician's HIV status to 280 patients
who had received invasive procedures. In another case, a
court held that a public health agency's disclosure of
confidential HIV information to aid in a criminal prosecution
was permissible; the criminal activity was deemed a waiver of
confidentiality. In contrast, another court prohibited law
enforcement access to public health records.
A major tension exists between
confidentiality and the "right to know." Health care
workers and others who perceive themselves to be at risk for
HIV infection in the workplace claim the right to know the HIV
status of patients or others. Generally, because infection
control precautions in the health care setting are both the
standard of practice and highly effective, right-to-know
claims are difficult to maintain. For example, a surgeon's
lawsuit alleging emotional distress caused by learning, after
the fact, that his surgical patient was HIV positive was
rejected. Similarly, if morticians and emergency response
employees use universal infection control precautions, the
risk of HIV transmission is negligible. Nevertheless, federal
law authorizes, under certain circumstances, disclosure of HIV
information to morticians and emergency response workers upon
their request. But whether right-to-know claims will be
successful in generating damage awards seems questionable. In
a West Virginia case, a mortician filed a tort action against
a hospital for failing to inform him that a corpse he had
handled was contaminated with HIV. The court found no
liability in the absence of actual exposure.
Fear of HIV Exposure in the Health Care
Many cases have been filed by patients
claiming that individual or institutional health care
providers are liable for exposing them to the risk of HIV
transmission without their knowledge. Patients argue that
health care professionals negligently caused them emotional
distress by failing to warn or failing to prevent some contact
that is perceived to pose a risk of transmission. These
plaintiffs seek compensation for their mental distress and
anguish. Recognizing the litigious nature of American society,
many courts limit fear of HIV claims by requiring proof that
the plaintiff's mental distress is a result of circumstances
posing an actual risk of HIV transmission. Plaintiffs who fear
an objectively nonexistent or unprovable risk generally will
not be compensated.[45,46] Furthermore, many courts limit
compensation to distress occurring during the "window of
anxiety," the period between learning of possible
exposure and obtaining a reliable HIV-negative test
result. In 1 case, a surgical patient provided her own
blood for transfusion, but the surgeon transfused another
donor's blood. This negligence caused emotional distress that,
in light of plaintiff's precautions, was in the court's view
both reasonable and foreseeable.
HIV-Infected Health Care Professional's
Duty to Disclose
Several courts have held that health care
professionals have a duty to disclose their HIV status to
patients or health authorities, assuming that their
professional activities pose a risk of transmission to
patients. The Maryland Court of Appeals ruled that a surgeon
has a duty to inform his patients of his infection; even if
the patient has not actually been exposed and tests HIV
negative, the contact with the surgeon may subsequently give
rise to a claim for the infliction of mental distress due to
fear of transmission. Courts justify orders to disclose
based on a duty to protect patients and on the doctrine of
informed consent. Requiring disclosure to patients, of
course, can severely jeopardize a health care professional's
career. To avoid this result, some states allow the
professional to continue practicing, with appropriate
restrictions and supervision, but without disclosing his or
her HIV status.
The Duty to Warn Third Parties at Risk
Many state laws permit, but do not
require, disclosure by physicians to third parties known to be
at significant future risk of HIV transmission from patients
known to be infected. Thus, if a physician reasonably
believes that a patient will share drug injection equipment or
have unprotected sex without informing a partner of the risk,
the physician has discretion to inform the partner. Under some
disclosure laws, the physician is required to first counsel
the patient to refrain from the risk behavior, and, in
providing the third-party warning, the physician is prohibited
from disclosing the patient's identity. In the absence of
state laws permitting such disclosure, physicians may be held
liable for breach of confidentiality for disclosing patient
information to sex partners.
The "duty to warn" may extend
to nonpatient third parties in other contexts, based on the
provider's primary duty to the patient. Thus, health care
professionals have a duty to inform patients that they have
been transfused with HIV-contaminated blood, and this duty may
extend to third parties. A physician in 1 case failed to
inform a teenager or her parents that she had been transfused
with HIV-contaminated blood. When the young woman's sexual
partner tested positive for HIV, the court upheld his claim
against the physician based on the physician's failure to
inform the patient. Similarly, courts have held that a
health care professional's duty to inform a patient of his or
her HIV infection may extend to those the patient foreseeably
puts at risk such as a spouse or family member
caregiver. On the other hand, courts have ruled that
disclosure is wrongful in cases in which the third party, such
as a family member, is not at actual risk of infection, or the
physician has no knowledge that the patient has failed to
disclose to the partner.
PREVENTION AND TREATMENT: PHYSICIAN
STANDARDS OF CARE
Negligent Diagnosis of HIV/AIDS
Patients who have been erroneously
informed that they are HIV-infected, when in fact they are
not, have filed suit against their health care providers for
negligent infliction of emotional distress. Some of these
plaintiffs have argued that an HIV-positive diagnosis is a
"death sentence" that inflicts extreme psychological
harm. To limit recovery to only those cases involving a
significant claim for compensation, some courts have refused
to award damages unless the mental distress arose from or led
to physical injury. For example, courts have held that
increased blood pressure is not an adequate injury, but that
adverse effects of AIDS treatments or a patient's attempt at
suicide would suffice to justify liability. Other courts
have not imposed a physical injury requirement.
Providers may also be liable for
negligently failing to diagnose HIV infection. In 1 case, a
jury awarded more than $1 million in a case in which an
earlier diagnosis would have delayed by 1 year the onset of
symptoms, disability, and death. A physician may also be
liable for unnecessary delay in notifying a patient of
exposure to HIV and may be liable to the patient's sexual
partner who is subsequently infected. However, providers
have not been held liable for failure to diagnose and
effectively treat HIV unless the plaintiff has shown a causal
connection between their failure and the injury suffered.
In the early years of the epidemic, failure to diagnose HIV
infection did not expose the provider to significant
liability, since treatment options and likelihood of success
in treatment were limited. But as treatments for HIV illness
develop to higher levels of efficacy, failure to render a
prompt diagnosis or failure to initiate prompt and appropriate
treatment may expose providers to increasing liability.
Distribution of Drug Injection Equipment
Public health and medical
authorities recommend that physicians counsel drug users to
use a new syringe and needle for every injection. Syringe
exchanges have been established at the state and local levels
to prevent transmission of HIV and other blood-borne
pathogens. Nevertheless, a web of state statutes create
criminal offenses for the sale, distribution, or possession of
syringes and needles.[64,65] These laws pose the threat of
prosecution to public health officials and community activists
who distribute sterile needles and syringes, and, in some
cases, prosecutions have resulted. The Washington Supreme
Court, however, upheld syringe exchange as a valid public
health measure. The court reasoned that the health department
had acted in pursuance of an AIDS statute that granted the
department the general power to implement prevention
strategies. Federal law prohibits use of federal funds for
syringe exchange until the secretary of health and human
services certifies that exchanges are effective in preventing
HIV infection and do not encourage drug use.
DISCRIMINATION AND ACCESS TO CARE
The HIV epidemic has been characterized
by a high level of social opprobrium against those infected or
suspected of being infected. As a result, individuals with HIV
infection routinely encounter discrimination in many aspects
of their lives. Discrimination in the health care setting,
however, is especially pernicious, depriving patients of
necessary services and undermining their trust in the system's
commitment to provide them with the care they need. If
individuals fear discrimination in health care, they may forgo
testing or fail to discuss their health and risk behaviors.
Furthermore, because health care professionals are viewed by
the general public as being well informed, their actions set a
poor example for others attempting to respond to the epidemic
in a nondiscriminatory fashion.
Institutional health care providers and
other employers have a duty to provide a reasonably safe
workplace. The use of barrier techniques on a universal basis
has been the officially sanctioned approach to workplace
safety. As a result, discrimination against patients is
rarely, if ever, justified by a provider's fear of
transmission. The Occupational Safety and Health
Administration's (OSHA's) blood-borne pathogen safety
standard has been challenged as overly broad, but
remains the primary safety standard. Although employer
noncompliance with infection control standards may give rise
to a justifiable refusal to work, the underlying fear must
have an objective basis. Employee claims of occupational
transmission (or fear of occupational transmission) are
generally covered by worker compensation statutes, which
provide exclusive remedies for work-related claims against
Definition of "Disability"
Under the ADA: The Supreme Court's First AIDS Case
An array of laws at the federal, state,
and local levels prohibit discrimination on the basis of a
person's disability or health status. The primary federal
nondiscrimination statute is the Americans With Disabilities
Act (ADA) of 1990,[73,74] although the laws of many states and
localities also specifically prohibit discrimination against
individuals living with HIV/AIDS.
The ADA provides that no individual
"shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public accommodation."
The ADA's definition of "public accommodation"
specifically includes hospitals and professional offices of
health care providers. Similarly, New York's highest court
ruled that the offices of private dentists are considered
places of public accommodation under New York law.
A critically important issue under the
ADA is whether persons with asymptomatic HIV infection have a
"disability" and thus are protected under the
ADA. Disability is defined as a physical or mental
impairment that substantially limits 1 or more of the major
life activities of the individual, a record of such
impairment, or being regarded as having such an
impairment. In the past, many courts have ruled or assumed
as undisputed that HIV infection, as the underlying cause of a
life-threatening illness, is a disability. However, several
recent court decisions have held that HIV does not
automatically qualify as a disability, and in each case there
must be an individualized determination as to whether the
infection actually limits, in a substantial way, a major life
activity. Given the advent of new combination therapies that
significantly delay the onset of disabling symptoms, this
judicial view could markedly undermine legal protection
against discrimination for persons with asymptomatic or mildly
symptomatic HIV infection. The ADA's legislative history,
however, indicates that Congress intended to include HIV
infection within the definition of disability, and the Equal
Employment Opportunity Commission's regulations embody that
view. In its first AIDS case ever, the Supreme Court will
decide whether and to what extent persons with HIV infection
are protected under the ADA.
In Abbott v Bragdon, a dentist
refused to fill a dental cavity of an HIV-infected patient.
The patient then brought suit alleging that the refusal
violated the ADA. The dentist conceded that his professional
office was covered by the ADA, but argued that providing
services to the infected patient, because of the risk of HIV
transmission, would pose a direct threat to his health.
Additionally, he argued that the plaintiff, who did not have
symptoms of HIV illness, was not an individual with a
disability under the ADA. The lower courts rejected the
dentist's defenses, concluding that the dentist was unable to
show that in 1994, when the case arose, there was evidence
that treating an infected patient posed a significant risk.
The plaintiff's infection, which she testified resulted in her
decision against becoming pregnant, was viewed as
substantially limiting the major life activity of
reproduction. The Supreme Court has agreed to consider 3
questions presented by the case: (1) whether reproduction is a
major life activity; (2) whether asymptomatic HIV infection is
a per se disability under the ADA; and (3) whether the courts
should defer to a health care provider's reasonable
The ADA's coverage also extends to
individuals merely regarded as having a disability. Thus, it
is unlawful to discriminate against an individual based on the
misperception that the person is infected with HIV under the
ADA as well as under the laws of many states. Persons
discriminated against because of their association with a
person with HIV infection are also protected, as are
persons retaliated against because of their opposition to
The Health Care Professional's Duty to
Courts have consistently held that health
care professionals have a legal duty to treat patients living
with HIV/AIDS. Health care professionals must, of course,
exercise appropriate clinical judgment. If a professional
lacks the skill appropriate to render competent care, she may
legally refuse to treat the person and may lawfully refer him
elsewhere. A clinician cannot, however, simply reject or
refer an HIV-infected patient solely because of his or her HIV
The courts have had to decide the
difficult question whether and to what degree a health care
professional can treat HIV-infected persons differently from
other patients. Although CDC and OSHA standards require use of
"universal" precautions applicable to all patients
without regard to infection status, imposition of special
precautions for HIV-infected patients has been upheld. One
court, finding that special precautions may be necessary for
certain procedures, ruled that a dentist may lawfully refuse
to treat a patient who refuses to reveal HIV-related
information. But another court ruled that the use of
special precautions, which resulted in delay of services,
beyond those recommended by the CDC constituted unlawful
Nondiscrimination in Health Insurance
Access to health care is often contingent
on the ability to pay or the availability of insurance
coverage. Federal and state law provides little or no
protection from adverse coverage decisions provided the
insurance company uses sound actuarial data. However, an
employer's decision to place severe limits on coverage for
HIV/AIDS, but not on comparable diseases, may be unlawful
under the ADA.[90,91] A central question in determining the
extent of health insurance coverage is whether certain
services are "medically necessary." In an important
case, the Eleventh Circuit Court of Appeals held that skilled
nursing care was "medically necessary" and should be
reimbursed under an employer's self-funded health benefits
HIV-Infected Health Care Professionals
Federal law requires states to comply
with CDC guidance that recommends an individualized
determination of whether HIV-infected physicians engaging in
"exposure-prone" procedures can safely practice. At
present the CDC and the American Medical Association are
reevaluating their policies in light of epidemiologic evidence
showing that the risk to patients, even from invasive
procedures, is negligible. The judiciary has had to decide
whether HIV-infected health care professionals pose a
significant risk to their patients, and thus are not qualified
to continue to practice. Several courts have upheld decisions
to prohibit HIV-infected health care professionals who perform
invasive procedures.[95,96] These courts have reasoned that
the severity of harm if HIV infection were transmitted
justifies practice restrictions. However, the Ninth Circuit
Court of Appeals held that a physician's practice could not be
restricted if he did not primarily perform invasive
procedures. The physician, a general internist, was employed
by the Federal Bureau of Investigation (FBI). The agency
refused to refer patients to the physician after suspecting
that he was HIV positive. The court ruled that the FBI had
failed to make adequate inquiries about the physician's
infection control procedures: "The record shows that Dr.
Doe and the hospital were entirely forthcoming about these
procedures, but that their explanations fell on deaf
Prisoner Health Care
Access to adequate health care for prison
inmates living with HIV/AIDS has been a long-term problem.
Gross inadequacies in state prison health care systems may
rise to a constitutional violation. In New York, inmates
living with HIV/AIDS challenged the state's delivery of
medical, mental health, educational, and prevention services.
The court ordered the state to release records enumerating the
inmates, both living and deceased, who had been diagnosed as
having AIDS or AIDS-related illnesses, in order to aid in the
court's determination as to whether the prison authorities
deliberately neglected the inmates' health care needs.
Inadequate medical care and lack of HIV education services
resulted in a court-imposed remedial plan in another
case. But when a showing of deliberate indifference is
lacking, federal constitutional claims against prison
officials will fail.
Considerable progress has been
made—socially and legally—during the first 2 decades of
the HIV/AIDS epidemic. Reductions in social stigma and new
statutes to protect privacy and proscribe discrimination have
emerged. The serious consequences of the epidemic, however,
are not over. While instances of gross abuse are less
frequent, intolerance and animus stubbornly persist. Even
legal advances have been eroded with some courts denying
antidiscrimination protection for persons with asymptomatic
HIV infection, and upholding discrimination against
HIV-infected health care professionals despite the extremely
Systematic efforts to confront the
HIV/AIDS epidemic are needed: (1) expanded and
nondiscriminatory access to health care; (2) expansion of
counseling, testing, and other prevention services; (3)
educational campaigns to promote tolerance and reduce social
stigma; and (4) better laws to protect privacy and prohibit
discrimination. The health care and public health systems need
these and other kinds of new strategies to reduce the deep
personal and social burdens of HIV disease in the United
From the Georgetown/Johns Hopkins Program
on Law and Public Health, Washington, DC, and Baltimore, Md (Mr
Gostin). Mr Webber is in private practice in Philadelphia, Pa.
Reprints: Lawrence O. Gostin, JD,
Georgetown University Law Center, 600 New Jersey Ave NW,
Washington, DC 20001 (e-mail: firstname.lastname@example.org).
Health Law and Ethics section editors:
Lawrence O. Gostin, JD, the Georgetown/Johns Hopkins
University Program on Law and Public Health, Washington, DC,
and Baltimore, Md; Helene M. Cole, MD, Contributing Editor,
1. Webber DW, ed. AIDS and the Law. 3rd
ed. New York, NY: John Wiley & Sons Inc; 1997.
2. Gostin LO, ed. AIDS and the Health
Care System. New Haven, Conn: Yale University Press; 1990.
3. Gostin LO. The AIDS Litigation
Project: a national review of court and Human Rights
Commission decisions, I: the social impact of AIDS. JAMA.
4. Gostin LO. The AIDS Litigation
Project: a national review of court and Human Rights
Commission decisions, II: discrimination in education,
employment, housing, insurance, and health care. JAMA.
5. Carpenter CCJ, Fischl MA, Hammer SM,
et al. Antiretroviral therapy for HIV infection in 1997. JAMA.
6. Centers for Disease Control and
Prevention. Update: trends in AIDS incidence—United States,
1996. MMWR Morb Mortal Wkly Rep. 1997;46:861-867.
7. Peckham C, Gibb D. Mother-to-child
transmission of the human immunodeficiency virus. N Engl J
8. Fiscus SA, Adimora AA, Schoenbach VJ,
et al. Perinatal HIV infection and the effect of zidovudine
therapy on transmission in rural and urban counties. JAMA.
9. Centers for Disease Control.
Provisional Public Health Service interagency recommendations
for screening donated blood and plasma for antibody to the
virus causing acquired immunodeficiency syndrome. MMWR Morb
Mortal Wkly Rep. 1985;34:1-5.
10. 32 CFR §§58.1-58.6 (1997).
11. American Fed'n of Gov't Employees,
Local 1812 v US Dep't of State, 662 F Supp 50 (DDC 1987).
12. Gostin LO, Cleary PD, Mayer K, Brandt
A, Chittenden E. Screening and exclusion of international
travelers and immigrants for public health purposes: an
evaluation of United States policy. N Engl J Med.
13. US v Ward, 131 F3d 335 (3d Cir 1997).
14. Gostin LO, Lazzarini Z, Alexander DD,
et al. HIV testing, counseling, and prophylaxis after sexual
assault. JAMA. 1994;271:1436-1444.
15. T.E.P. v Leavitt, 840 F Supp 110 (D
16. Glover v Eastern Neb Community Office
of Retardation, 686 F Supp 243 (D Neb 1988), aff'd, 867 F2d
461 (8th Cir), cert denied, 493 US 932 (1989).
17. Doe v Dyer-Goode, 566 A2d 889 (Pa
Super Ct 1989).
18. Pa Stat Ann tit 35, §7607.
19. Hill v Evans, No. 91-A-626-N, 1993 WL
595676 (MD Ala Oct 7, 1993).
20. 42 USC §300ff-34.
21. Anastosopoulos v Perakis, 644 A2d 480
22. New York Department of Health,
Maternal-Pediatric HIV Prevention and Care Program. HIV
Counseling and Testing of Newborns as Part of the
Comprehensive Newborn Testing Program. Albany: New York Dept
of Health Maternal-Pediatric HIV Prevention and Care Program;
1997. Memorandum 97-2.
23. R.Z. v Pataki, Index No. 97-112960
(Sup Ct NY County, complaint filed July 18, 1997).
24. Alabama, Arizona, Arkansas, Colorado,
Florida, Idaho, Indiana, Louisiana, Michigan, Minnesota,
Mississippi, Missouri, Nebraska, Nevada, New Jersey, New
Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South
Carolina, South Dakota, Tennessee, Utah, Virginia, West
Virginia, Wisconsin, Wyoming.
25. Connecticut, Texas, and Oregon.
26. Gostin LO, Ward JW, Baker, AC.
National HIV case reporting for the United States. N Engl J
27. Alabama, Idaho, Michigan, Nevada,
North Carolina, Ohio, South Carolina, South Dakota, Tennessee,
28. ACT-UP Triangle v Comm'n for Health
Servs, 483 SE2d 388 (NC 1997), rev'g 472 SE2d 605 (NC Ct App
29. Bayer R. Public health policy and the
AIDS epidemic: an end to HIV exceptionalism. N Engl J Med.
30. New York State Soc'y of Surgeons v
Axelrod, 572 NE2d 605 (NY 1991).
31. Report of the Presidential Commission
on the Human Immunodeficiency Virus Epidemic. Washington, DC:
US Government Printing Office; 1988.
32. Gostin LO, Lazzarini Z, Neslund VS,
et al. The public health information infrastructure: a
national review of the law on health information privacy. JAMA.
33. Doe v Methodist Hosp, 639 NE2d 683 (Ind
Ct App 1994).
34. Doe v Marselle, 675 A2d 835 (Conn
1996), rev'g 660 A2d 871(Conn App Ct 1995).
35. Estate of Benson v Minnesota Bd of
Medical Practice, 526 NW2d 634 (Minn Ct App 1995).
36. Doe v Roe, 588 NYS2d 236 (Sup Ct
Onondaga County 1992), rev'd in part, 599 NYS2d 350 (App Div
1993), subsequent opinion, 620 NYS2d 666 (App Div 1994).
37. NY Pub Health Law §2782.
38. Estate of Behringer v Medical Ctr,
592 A2d 1251 (NJ Super Ct Law Div 1991).
39. In re Milton S. Hershey Medical Ctr,
634 A2d 159 (Pa 1993), aff'g 595 A2d 1290 (Pa Super Ct 1991).
40. State v Stark, 832 P2d 109 (Wash Ct
41. State v J. E., 606 A2d 1160 (NJ Super
Ct Law Div 1992).
42. Ordway v County of Suffolk, 583 NYS2d
1014 (Sup Ct Suffolk County 1992).
43. 42 USC §300ff-76(4).
44. Funeral Servs by Gregory, Inc v
Bluefield Community Hosp, 413 SE2d 79 (WVa 1991), overruled in
part by Courtney v Courtney, 437 SE2d 436 (WVa 1993).
45. Kaufman v Physical Measurements, Inc,
615 NYS2d 508 (App Div 1994).
46. Barrett v Danbury Hosp, 654 A2d 748 (Conn
47. Madrid v Lincoln County Medical Ctr,
923 P2d 1154 (NM 1996), aff'g 909 P2d 14 (NM Ct App 1995).
48. Hoffman v Brandywine Hosp, 661 A2d
397 (Pa Super Ct 1995).
49. Faya v Almaraz, 620 A2d 327 (Md
50. Gostin LO, Hodge J. Piercing the veil
of secrecy in HIV/AIDS and other sexually transmitted
diseases: theories of privacy and disclosure in partner
notification: contact tracing, the "right to know,"
and the "duty to warn." Duke J Gender Law &
Policy. In press.
51. N. O. L. v District of Columbia, 674
A2d 498 (DC 1996).
52. Reisner v Regents of Univ of Cal, 37
Cal Rptr 2d 518 (Ct App 1995).
53. Garcia v Santa Rosa Health Care Corp,
No. 13-94-482-CV, 1996 Tex App LEXIS 824 (Tex App 13 Dist
1996), substituted opinion upon reh'g, 1996 Tex App LEXIS 2513
(Tex App 13 Dist June 20, 1996).
54. J. B. v Sacred Heart Hosp, 635 So2d
945 (Fla 1994), certified question at 996 F2d 276 (11th Cir
55. Diaz Reyes v US, 770 F Supp 58 (DPR
1991), aff'd without opinion, 971 F2d 744 (1st Cir), cert
denied, 504 US 957 (1992).
56. R. J. v Humana of Fla, Inc, 652 So2d
360 (Fla 1995).
57. Bramer v Dotson, 437 SE2d 773 (WVa
58. Doe v McNulty, 630 So2d 825 (La Ct
App 1993), cert denied, 631 So2d 1167 (La 1994).
59. Mixon v Cason, 622 So2d 825 (Ala
60. Baker v English, 894 P2d 505 (Ore Ct
App 1995), aff'd in part & rev'd in part, 932 P2d 57 (Ore
61. Centers for Disease Control and
Prevention. HIV Prevention Bulletin: Medical Advice for
Persons Who Inject Illicit Drugs. Atlanta, Ga: Centers for
Disease Control and Prevention; May 9, 1997.
62. Normand J, Vlahov D, Moses LE, eds.
Preventing HIV Transmission: The Role of Sterile Needles and
Bleach. Washington, DC: National Academy Press; 1995.
63. Burris S, Finucane D, Gallagher H,
Grace J. The legal strategies used in operating syringe
exchange programs in the United States. Am J Public Health.
64. Gostin LO, Lazzarini Z, Jones TS, et
al. Prevention of HIV/AIDS and other blood-borne diseases
among injection drug users: a national survey on the
regulation of syringes and needles . JAMA. 1997; 277:53-62.
65. Gostin LO, Lazzarini Z. Prevention of
HIV/AIDS among injection drug users: the theory and science of
public health and criminal justice approaches to disease
prevention. Emory Law J. 1997;46:587-696.
66. Spokane County Health Dist v Brockett,
839 P2d 324 (Wash 1992).
67. Pub L No. 105-78, Title V, §§505-506,
1997 USCCAN (111 Stat) 1467, 1515.
68. Occupational Safety and Health
Administration. Blood borne pathogens. 29 CFR §1910.1030
69. American Dental Ass'n v Martin, 984
F2d 823 (7th Cir 1993).
70. Armstrong v Flowers Hosp, 33 F3d 1308
(11th Cir 1994), aff'g 812 F Supp 1183 (MD Ala 1993).
71. Miller P, Tereskerz D, Jagger J.
Occupationally acquired HIV. Am J Public Health.
72. Elliott v Dugger, 579 So2d 827 (Fla
Dist Ct App 1991), prior opinion, 542 So2d 392 (Fla Dist Ct
73. 42 USC §§12101 et seq.
74. Gostin L, Beyer H, eds. The Americans
With Disabilities Act: What It Means for All Americans.
Baltimore, Md: Brookes Publishing Co; 1993.
75. 42 USC §12182(a).
76. 42 USC §12181(7).
77. Cahill v Rosa, 674 NE2d 274 (NY
1996), rev'g 632 NYS2d 614 (App Div 1995).
78. Parmet WE, Jackson DH. No longer
disabled: the legal impact of the new social construction of
HIV. Am J Law Med. 1997;23:7-44.
79. 42 USC §12102(2).
80. 29 CFR §1630, appendix at 339
81. Abbott v Bragdon, 107 F3d 934 (1st
Cir 1997), aff'g 912 F Supp 580 (D Me 1995), cert granted, 118
SCt 554 (1997).
82. Sanchez v Lagoudakis, 486 NW2d 657 (Mich
1992), subsequent opinion, 552 NW2d 472 (Mich Ct App 1996).
83. Finley v Giacobbe, 827 F Supp 215 (SD
84. Sherer v Foodmaker, Inc, 921 F Supp
651 (ED Mo 1996).
85. Howe v Hull, 873 F Supp 72 (ND Ohio
86. Schulman v State Div of Human Rights,
641 NYS2d 134 (App Div 1996), rev'd, 677 NE2d 284 (NY 1997),
on remand, 658 NYS2d 70 (App Div 1997).
87. North Shore Univ Hosp v Rosa, 657
NE2d 483 (NY 1995), aff'g 600 NYS2d 90 (App Div 1993).
88. Doe v Kahala Dental Group, 808 P2d
1276 (Haw), reconsideration denied, 841 P2d 1074 (Haw 1991).
89. Sharrow v Bailey, 910 F Supp 187 (MD
90. EEOC Interim Guidance on Application
of the ADA to Health Insurance. Washington, DC: Equal
Employment Opportunities Commission; June 8, 1993.
91. Carparts Distrib Ctr, Inc v
Automotive Wholesalers Ass'n, 37 F3d 12 (1st Cir 1994), rev'g
826 F Supp 583 (D NH 1993).
92. Florence Nightingale Nursing Serv v
Blue Cross & Blue Shield, 832 F Supp 1456 (ND Ala 1993),
aff'd, 41 F3d 1476 (11th Cir), cert denied, 115 S Ct 2002
93. Pub L No. 102-141, Title VI, §633,
1991 USCCAN (105 Stat) 834, 876-77, reprinted in note to 42
94. Centers for Disease Control and
Prevention. Recommendations for preventing transmission of
human immunodeficiency virus and hepatitis B virus to patients
during exposure-prone invasive procedures. MMWR Morb Mortal
Wkly Rep. 1991;40(RR-8):1-9.
95. Bradley v Univ of Tex M. D. Anderson
Cancer Ctr, 3 F3d 922 (5th Cir 1993) (per curiam), cert
denied, 114 SCt 1071 (1994).
96. Mauro v Borgess Medical Ctr, 886 F
Supp 1349 (WD Mich 1995).
97. Doe by Lavery v Attorney Gen'l, 44
F3d 715 (9th Cir 1995), superseded without opinion, 62 F3d
1424 (9th Cir), vacated and remanded sub nom Reno v Doe by
Lavery, 116 SCt 2543 (1996).
98. Burris S. Prisons, law and public
health: the case for a coordinated response to epidemic
diseases behind bars. Univ Miami Law Rev. 1992;47:291-329.
99. Hetzel v Swartz, 917 F Supp 344 (MD
100. Inmates of NY State With HIV v Cuomo,
No. 90-CV-252, 1991 US Dist LEXIS 1488 (ND NY Feb 7, 1991).
101. Madrid v Gomez, 889 F Supp 1146 (ND
102. State ex rel Peeples v Anderson, 653
NE2d 371 (Ohio 1995).
Read the full text of the AIDS Litigation
Project, Part I and Part II published by the AIDS and Public