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The HIV-Positive Patient and Confidentiality

¹ Department of Radiology, Massachusetts General Hospital, Harvard University School of Medicine, Boston, MA 02114.
² Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL, 60612.

Received September 13, 2000; accepted after revision September 29, 2000.

 
Case summaries are based on actual events and lawsuits, although certain facts have been omitted or modified by the authors. All opinions expressed herein are those of the authors and do not necessarily reflect those of the American Journal of Roentgenology or the American Roentgen Ray Society.

Address correspondence to L. Berlin.

Introduction

Top Introduction The Case Medical-Legal Issues Discussion Summary and Risk Management References

 

I swear...that.... [a]ll that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal. If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot.

Hippocratic Oath [1]

The Case

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A 42-year-old male dentist was referred to the radiology department of a hospital for a CT-guided needle biopsy of a 1.5-cm lung nodule. Although the nodule was thought to be probably benign because of its appearance on CT scans, both the patient's family physician and a consulting radiologist believed that biopsy was indicated because the nodule contained eccentric calcification. On the day the biopsy was to be performed, the radiologist and the radiology nurse met with the patient to explain the procedure and obtain informed consent. The patient was told of the risk of bleeding, infection, and pneumothorax that sometimes requires treatment with a chest tube.

Before signing the consent form, the dentist patient asked to speak privately with the radiologist. The patient then revealed to the radiologist that he was HIV-positive and was worried that his dental practice might suffer "dire financial consequences" if knowledge of his HIV status were to become public. The patient emphasized that he wanted his HIV status to be held in the strictest confidence. The radiologist, though somewhat startled by the patient's intensity, assured him that all medical records were confidential and that every precaution was routinely taken to maintain privacy of such information. After this discussion, the patient signed the consent form, and the biopsy procedure was begun.

The radiologist performed a fine-needle aspiration of the lesion, but a cytopathologist present in the CT scanning suite found the sample insufficient to establish a diagnosis. Accordingly, the radiologist elected to obtain a small core biopsy using a spring-loaded device. A diagnostic specimen was obtained, but the patient complained of chest pain toward the end of the procedure. Chest radiographs taken immediately after the procedure disclosed a small pneumothorax.

The patient was immediately informed of the complication and admitted to the radiology holding area for observation. Two hours later, the patient began to complain of shortness of breath, and a follow-up chest radiograph showed an increased degree of pneumothorax. The radiologist recommended that a chest tube be inserted, and the patient agreed. Within the hour, a small-bore chest tube was successfully placed in the patient, and he was admitted to the hospital for observation under the service of his family physician. As part of the admission process, an intern obtained a history and performed a physical examination, during which the dentist patient reluctantly revealed his HIV status. This information was duly noted in the patient's medical record.

The patient spent an uneventful night in the hospital, and chest radiographs obtained the following morning revealed resolution of the pneumothorax. The patient's chest tube was clamped, and a follow-up radiograph showed no recurrence of the pneumothorax. Later that day, the chest tube was removed, and the patient was discharged. On the next day, a pathologist reported the needle biopsy had revealed benign granuloma.

The radiologist, pleased that the patient's lung nodule was benign and that the pneumothorax had resolved uneventfully, quickly put the episode behind him. However, 6 weeks after the incident, the radiologist was contacted by the hospital risk manager, who informed the radiologist that the patient had complained to the hospital that his HIV status had become common knowledge in the community. The patient was charging that "somebody at the hospital leaked" this information. The radiologist responded that he had not discussed the patient's HIV status with anyone and had no personal knowledge of how that information may have become known. The risk manager stated that she would investigate further and expressed the hope that the matter would be inconsequential. However, 8 months later, the radiologist, the hospital, and the patient's family physician were sued for malpractice.

Medical-Legal Issues

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The lawsuit contained two sets of allegations—one rather routine, the other quite unusual. The first set of allegations consisted of typical professional negligence charges: the patient charged that the family physician and the radiologist as well as the hospital violated the standard of medical care by undertaking a biopsy procedure that had not been indicated, thereby causing the complication of pneumothorax, "which never would have occurred in the absence of an unnecessary biopsy." The second set of allegations was not at all typical: the patient alleged that the two physicians and the hospital had breached patient confidentiality by violating not only the well-recognized physician—patient privilege but also a state statute that mandated confidentiality for HIV-AIDS information. The lawsuit sought $100,000 in compensatory damages for the biopsy procedure and resulting complications, $750,000 in lost wages, and $1 million in punitive damages for the breach of confidentiality.

The three defendants immediately notified their professional liability insurance companies of the litigation. The radiologist's company appointed a defense counsel, who in conjunction with the attorneys for the other defendants, undertook an investigation of the incident, including a review by an outside expert radiologist.

The expert radiologist reviewed the patient's original chest radiographs, CT scan, and medical records. The radiology expert concluded that although the lung nodule had characteristics suggesting that it was benign, biopsy was not unreasonable given the presence of eccentric calcification. In regard to the pneumothorax, the expert radiologist told the defense attorney that pneumothorax was a recognized risk of the procedure and that the patient's complication had been managed well within the standard of care. The opinion of the radiology expert was that no negligence had been committed.

The issue of the alleged breach of patient confidentiality proved more problematic for the defense. Investigation disclosed that shortly after his discharge from the hospital, the dentist patient had been approached by a colleague who had expressed sympathy at the news of the patient's HIV status. The patient was shocked by this comment, for he had never informed any colleagues of his condition. However, the patient knew that this particular colleague was on the staff of the hospital at which the biopsy had been obtained.

Over the next 6 weeks, the patient noticed an increasing number of cancellations in his dental practice. Frustrated, the dentist personally contacted several long-time patients who had recently cancelled their appointments to inquire why they had done so. Those patients who would provide a reason apologetically indicated that although they were sympathetic to the dentist's condition, they no longer felt safe in his care. The cancellations mounted, and within 2 months the patient's dental practice had deteriorated to the point of virtual collapse.

The dentist's colleague who had surprised the dentist with knowledge of his HIV status had signed an affidavit stating that a friend who was a nurse's aide in the hospital's radiology holding area had called him on the day of the patient's biopsy to inform him that the patient was HIV-positive. When confronted with this allegation, the nurse's aide at first denied revealing the information but later admitted that she had.

The defense attorneys representing the three defendants were confident that the allegations of medical negligence related to the biopsy procedure had no basis in fact and that the defendants would almost certainly prevail in a jury trial on that issue. The defense attorneys defending the radiologist and the hospital, however, were quite concerned about the charge that their clients had violated patient confidentiality regarding HIV status. The patient had specifically admonished the radiologist about the necessity of keeping his HIV status confidential, and the radiologist had assured the patient that secrecy would be maintained. Not only did the medical record fail to indicate that the defendant radiologist had made any effort to effect confidentiality, but the plaintiff's attorney produced an affidavit signed by a radiology expert witness that charged that the defendant radiologist had exhibited "blatant disregard" for the welfare of the patient.

The plaintiff's attorney had retained another expert witness who was prepared to testify that the hospital management had also been "reckless" because management had failed to instruct the intern and nursing personnel about the need to keep a patient's HIV status confidential. To make matters worse, the plaintiff's attorney had accumulated ample evidence that the patient's dental practice had indeed suffered financially, with annual potential losses in the hundreds of thousands of dollars.

After much negotiation, the parties finally reached a settlement. A total of $750,000 was paid to the plaintiff, two thirds of which was borne by the hospital and the remainder by the defendant radiologist. No indemnification was paid on behalf of the family physician.

Discussion

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Medical information that people give to their doctors and hospital staff undoubtedly constitutes the most sensitive knowledge they share with anyone outside their immediate families. The sacrosanctity of the confidentiality in the physician-patient relationship dates back to the 4th century B.C., originating with the Hippocratic Oath [1] and remaining an inviolable precept through the ages to the present day. The importance to which the medical profession holds confidentiality of the patient-physician relationship is recognized in the current Code of Medical Ethics of the American Medical Association [2]:

In most states, either by statute or case law, disclosure of medical information is prohibited without consent of the patient [3,4]. One state court, after observing that the privacy right of patients warrants constitutional protection, ruled that patients must be able to secure medical services without fear of betrayal and unwarranted embarrassing and detrimental disclosure of private information [5]. The same court added that the obligation of medical confidentiality relative to patient records and information applies not only to physicians but to hospitals as well.

State laws addressing the confidentiality of HIV-related information are a direct result of the social environment that surrounded the early stages of the AIDS epidemic [6]. As the disease gained widespread attention in the late 1980s and early 1990s, most cases of AIDS involved homosexual men and IV drug users, historically groups subjected to discrimination. In addition, there was widespread public fear of what was perceived as an untreatable, universally fatal illness. The result was discrimination against HIV-positive patients, but at the same time public health officials and HIV patients-rights advocates voiced concern that easy access to HIV-status information would discourage those at risk from being tested. The need to protect information was crystallized in an opinion rendered by the New Jersey Superior Court in 1991 [5]:

Individuals infected with HIV are concerned with maintaining the confidentiality of their health status. HIV infection is associated with sexual practice and drug use, universally regarded as personal and sensitive activities. In addition, the majority of people infected with HIV in the United States are members of groups that are traditionally disfavored. Even before the AIDS epidemic, gays and intravenous drug users were subject to persistent prejudice and discrimination. AIDS brings with it a special stigma. Attitude surveys show that even though most Americans understand the modes through which HIV is spread, a significant minority still would exclude those who are HIV positive from schools, public accommodations and the work place. Unauthorized disclosure of a person's serologic status can lead to social opprobrium among family and friends, as well as loss of employment, housing and insurance.

Laws enacted to protect the confidentiality of HIV-related information vary widely from state to state [7]. Typically, these laws require informed consent for HIV testing and provide for strict confidentiality of test results. Provisions are usually made for gaining access to HIV-related information in limited circumstances, usually involving threats to the public health [6, 8].

The courts have played a crucial role in the interpretation of these laws and the applicability of physician confidentiality concepts in the setting of HIV-AIDS. An example of a court holding a medical facility liable for breaching patient-physician confidentiality regarding HIV status even before any state legislation was enacted is the case of a New Jersey otolaryngologist. After being ill for several weeks, the otolaryngologist was admitted to a local hospital at which he held staff privileges. Bronchoscopy established a diagnosis of Pneumocystis carinii pneumonia, and the result of a blood test was positive for HIV, findings previously unsuspected by the patient or his treating physician. Despite actions taken by the treating physician to maintain confidentiality, the otolaryngologist patient returned home to a series of telephone calls from fellow physicians, none involved in his care, all indicating knowledge of his condition. Soon thereafter, a number of individuals in the broader community also indicated that they knew of the otolaryngologist's HIV status, and in a short period of time, the otolaryngologist became socially ostracized and his medical practice substantially contracted.

The otolaryngologist sued the medical center and his treating physicians for breaching their duty of confidentiality. Although unable to positively identify the exact source of HIV-status disclosure, the otolaryngologist alleged that dissemination of his health information showed that the defendants had failed to take reasonable action to restrict access to test results. The defendants countered that they should not be liable for any disclosure by employees or other individuals outside of their control.

The New Jersey Superior Court ruled in favor of the otolaryngologist by holding the defendants negligent in their disclosure of the HIV status, stating in part [5]:

The medical center's disregard for the importance of preserving the confidentiality of plaintiff's patient medical records was evident.... A review of plaintiff's hospital chart revealed not only the HIV test results but the results of the bronchoscopy which all concede was a definitive diagnosis of AIDS. While the medical center argues that the decision regarding the charting is one for the physicians to make, the medical center cannot avoid liability on that basis. It is not the charting per se that generates the issue; it is the easy accessibility to the charts and of the lack of any meaningful medical center policy or procedure to limit access that causes the breach to occur. Where the impact of such accessibility is so clearly foreseeable, it is incumbent on the medical center, as the custodian of the charts, to take such reasonable measures as are necessary to ensure that confidentiality.

The confidentiality breached in the present case is simply grist for a gossip mill with little concern for the impact of disclosure on the patient. While one can legitimately question the good judgment of a practicing physician choosing to undergo HIV testing or a bronchoscopy procedure at the same hospital where he practices, this apparent error in judgment does not relieve the medical center of its underlying obligation—to protect its patients against the dissemination of confidential information. It makes little difference to identify those who "spread the news." The information was too easily available, too titillating to disregard. All that was required was a glance at a chart, and the written words became whispers and the whispers became roars. Common sense told all that this would happen.... Failure to ensure confidentiality is negligence.

The New Jersey court held not only the hospital liable but the physicians caring for the otolaryngologist as well.

In certain circumstances, the needs of society may supersede an individual patient's right of confidentiality. Such a circumstance is illustrated by a Pennsylvania case in which a blood test obtained after an obstetrics—gynecology resident was inadvertently cut during a surgical procedure revealed that the resident was HIV-positive. The medical center at which the resident worked reviewed the resident's surgical case logs to locate patients who potentially could have been infected with the HIV virus. Believing that there was a genuine need to disclose the resident's HIV status to patients potentially exposed as well as to certain medical center staff, the hospital petitioned the court to allow disclosure. The trial court permitted the disclosure, and the resident appealed.

A Pennsylvania appellate court ruled in favor of the hospital, allowing the resident to be identified by name to physicians of patients who had been treated by the resident during either a surgical procedure or obstetric care. The court explained [8]:

In determining whether or not there is a compelling need for testing [of potentially exposed persons], the court must measure the need for disclosure against not only the privacy interest of the individual, but also the general public interests that will be harmed by breach of privacy for involuntary testing. In accord with general law on testing, and the specific intention of the legislature to encourage voluntary testing, a "compelling need" should be understood to be a concrete medical need. A mere desire to know should not be enough. Instead, the person seeking the test must require the result in order to make an important medical decision....

Surely, when individuals visit their doctors, they do not expect to confront a risk of illness different from that which they already suffer. The hospital, which invites the sick and infirm, implicitly assures its patients that they will receive safe and adequate medical care. Thus, there is instilled public confidence in the health care system. It is understandable that the medical center was concerned about its obligations to its patients. At the same time, [state legislation] affords confidentiality to those carrying the HIV virus.

[The resident] strenuously argues that to allow future disclosures will be counter-productive and will discourage health professionals from seeking voluntary HIV testing.... Certainly, it is unfortunate that [the resident] will be made to suffer personally and/or professionally as a result of his illness and this case. At the same time, however, we must consider societal implications.... Secrecy in its purest form exacerbates fear and aggravates misconceptions. Case law acknowledges that individual privacy interests in medical information and records are not absolute. At times, the societal interest in disclosure outweighs the individual's interest in privacy. To avoid a constitutional violation, the state must show a compelling interest for breaching the privacy right. Here, the risk of transmission of a fatal disease and the prevention of the spread of AIDS are both appropriate state interests.

[The resident's] medical problem was not merely his. It became a public concern the moment he picked up a surgical instrument and became a part of a team involved in invasive procedures.

Many other states have balanced state and individual interests concerning HIV information and have concurred that the individual's privacy interest can be overcome by an interest in disclosure [9]. The conclusion that may be drawn from these cases is that information concerning HIV status must be kept reasonably confidential by physicians with legitimate access to medical records, including an affirmative duty to prevent those without a medical need from obtaining the information. However, when there is a demonstrated threat to the public health, this confidentiality can be overridden.

Summary and Risk Management

Top Introduction The Case Medical-Legal Issues Discussion Summary and Risk Management References

 
With cases of newly diagnosed HIV infection continuing and improvement in treatment allowing longer life for those living with the disease, HIV-positive patients are increasingly commonplace in all aspects of medical practice, including radiology. Although the near hysteria that HIV-positive patients faced at the outset of the epidemic has largely subsided, HIV is still perceived differently than other illnesses, and attention to confidentiality is still ethically and legally required. Disclosure of HIV-related information by a health care professional may subject that professional to a malpractice lawsuit or other civil litigation. Many courts have found that unauthorized disclosure of medical information by a physician may violate the physician's duty of confidentiality or the implied contract of confidentiality between the physician and the patient [6].

Risk management in radiology can lessen the likelihood of incurring a medical malpractice lawsuit, maximize the chances for a successful defense if a lawsuit is filed, and enhance the quality of patient care. The following risk management pointers will help radiologists meet all of these objectives when confronted with the issue of maintaining the confidentiality of information regarding a patient's HIV status.

• Radiologists should take reasonable care to keep HIV status confidential, with access provided only to those health care professionals involved in the patient's care. Reasonable care requires, at a minimum, adherence to all applicable laws and institutional guidelines, as well as observance of commonsense precautions such as limiting medical record access in potentially sensitive cases.
  
• All professional and support staff should be made aware of the confidentiality required for HIV-related information and warned of the serious consequences that may accompany such disclosure. A patient may well allege that the physician has violated the patient's privacy; many courts have upheld such charges and have found physicians liable [6].
  
• Should a radiologist believe that there is the need to broaden access to HIV-related information, such action should be taken only in consultation with his or her medical facility's risk manager or legal counsel and in accordance with applicable local law and institutional policy.
  
• If unauthorized disclosure is suspected or discovered, every effort must be made to identify the source of that disclosure and discuss the incident with appropriate administrative or risk management personnel.
  

References

Top Introduction The Case Medical-Legal Issues Discussion Summary and Risk Management References

 

1. Dorland's illustrated medical dictionary, 28th ed. Philadelphia: Saunders, 1994:767 -768
2. American Medical Association Council on Ethical and Judicial Affairs. Code of medical ethics: 5.05, Confidentiality. Chicago: American Medical Association, 1997: 77
3. Savkar S, Waters RJ. Telemedicine: implications for patient confidentiality and privacy. In: Telemedicine sourcebook, 1996-1997. New York: Faulkner & Gray, 1996: 351-360
4. Berlin L. Teleradiology. AJR 1998;170:1417 -1422[Free Full Text]
5. Behringer v Medical Center at Princeton. 592 A2d 1251 (NJ Super Ct 1991)
6. Doughty R. The confidentiality of HIV-related information: responding to the resurgence of aggressive public health interventions in the AIDS epidemic. 82 Calif L Rev 111:1994
7. Taylor J. Sex, lies, and lawsuits: a New Mexico physician's duty to warn third parties who unknowingly may be at risk of contracting HIV from a patient. 26 NM L Rev 481:1996
8. In re: Application of the Milton S. Hershey Medical Center of the PA State University, Appeal of John Doe, MD. 595 A2d 1290 (Pa Super Court 1991)
9. Taub S. Doctors, AIDS and confidentiality in the 1990s. 27 J Marshall L Rev 331:1994

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