Is CDC policy forcing HIV+ workers out of medicine?

Legal scholar levels charge, others skeptical

National public health policy should be changed to end professional practice restrictions and informed consent requirements that are driving HIV-infected health care workers underground or out of the profession, a legal/medical expert urges.

Larry Gostin, JD, LLD, director of the Center for Law & the Public’s Health at Johns Hopkins Univer-sity in Baltimore and professor at Georgetown University Law Center in Washington, DC, says it is time to revise a discriminatory policy by the Centers for Disease Control and Prevention.¹

The CDC guidelines were forged in the national heat of the 1990 Florida HIV dental case, which involved six patients apparently infected by their HIV-positive dentist. Erring on the side of caution in a debate that became heavily politicized, the CDC concluded that providers who have HIV or hepatitis B virus e antigen should go before confidential expert review panels to determine whether they should continue practicing and under what conditions. Most troublesome, infected providers who perform "exposure-prone procedures" (i.e., surgeons) are to inform patients of their status if they continue practice. Though not all states have adopted such disclosure, informed consent is certainly a concept that has been honored more in its breach than in its observance.

"People would rather not practice than to disclose it so publicly," Gostin tells Hospital Infection Control. "That is one of the reasons it has been a restrictive and, in some ways, punitive policy. Basically, hospitals are afraid of being sued, so they have taken a highly restrictive approach. As a result, health care workers with HIV and other bloodborne infections have been hounded out of the profession. There is a long history now of human rights abuses."

Though the CDC has been reluctant to reopen this can of worms, the agency has discussed revising its policies for infected workers. But the guidelines are not strictly voluntary like typical CDC policy. In 1991, Congress mandated states to adopt the recommendations or face loss of federal public health funding. Since Congress simply requires enforcement of CDC guidelines, the agency could theoretically change the policy without reopening a national debate.

As a practical matter, however, revisiting the controversial issue in an era of patient safety could well lead to the kind of polarizing debate that marked the original policy. But it is not the first time the CDC has been called to account on the policy, with even one of its own advisory panels questioning whether hepatitis C virus should at least be added to the guidelines. (See HIC, February 1997, pp. 17-21.)

Gostin reiterates that point as well, saying little was known about HCV at the time, but there is "no principled reason" to leave it out of the policy now. While HCV is generally more infectious per exposure than HIV, no special restrictions are currently recommended for HCV-infected providers. But comparing HCV and HIV in terms of public reaction is roughly the difference of shouting "barracuda" or "shark" to swimmers. While the public understanding of HCV is gradually increasing, the stigma of HIV is so well steeped that some have argued that reopening the whole issue could actually lead to more restrictive policies toward infected workers.

"If we have another formal national debate and try to revise this, the downside risk is large and the benefit is negligible," says William Schaffner, MD, chairman of the department of preventive medicine at the Vanderbilt University Medical School in Nashville, TN. "I think wise people at the local level have figured out the best way to implement these recommendations."

While commending Gostin for taking a stand for infected health care workers, Schaffner is skeptical that such a level of discrimination is occurring nationally. While some workers have been subjected to discrimination, he reasons that most hospitals are "quietly" dealing fairly with infected workers at the local level. "I applaud his empathy [with workers], but the solution to this is to struggle with the single case [of discrimination] rather than try to change the ground rules," he says. "Hospitals, I think, have been dealing with this in a responsible fashion. If it ain’t broke, don’t fix it. I think if you went out and surveyed folks, they would say this is not broke. It’s not perfect, but it is not broken."

The CDC’s lack of action on the issue may mirror that sentiment as well. In a footnote to the article, Gostin credited the "assistance and insights" of Julie Gerberding, MD, MPH, director of the CDC division of healthcare quality promotion.

Gerberding declined to comment on the article, but in previous writings of her own, she has emphasized that provider-to-patient HIV transmission is exceedingly rare. She called for adoption of "rational prevention policies . . . [that] not only protect patients from infection but also protect their health care providers from unwarranted discrimination."²

Gostin argues that the current recommendations actually pose greater risks for patients because health care workers have more legal protection by not knowing their HIV status. He recommends an approach that emphasizes management of the workplace environment and injury prevention to achieve patient safety without discrimination or invasion of privacy.

"I have suggested something that would increase patient safety, not decrease it," he argues. "Under the present system, doctors and others are afraid to come forward. Some won’t get tested; some won’t be treated [in order not to] disclose their infection status to their hospital. Therefore, they are probably more contagious and less subject to monitoring. Under my proposal, I focus on safety in the work place and not on restrictions on the doctor."

Gostin points out that current national policy has resulted in discrimination against heath care workers despite passage of the Americans with Disabilities Act (ADA). "The courts have said, even though the risk is low, because HIV is potentially fatal that there is a significant risk," he says. "As a result, the courts have not used the ADA to protect the rights of health care workers. It’s a big gaping hole in ADA enforcement."

Few episodes of provider-to-patient HIV transmission have been documented. Look-back studies in the United States have not found another case linked to an infected provider, though the literature has ample evidence of transmission by HBV e antigen-positive clinicians. In what some saw as a validation of the mysterious Florida dental cluster, another HIV transmission case was finally reported in 1997 in France after a patient underwent prolonged orthopedic surgery by an infected surgeon.³ Another possible case of nurse-to-patient transmission in France was reported this year.⁴

However, there are available methods to keep the risk miniscule, including new diagnostics and therapies to measure and reduce HIV viral load in plasma to very low levels, Gostin argues. Consequently, if HIV-infected workers are in treatment, it should be possible to monitor their health status and ensure low viral loads, thus reducing even further risks to patients, he reasons.

Indeed, Schaffner theorizes that is already occurring. "We have now highly active antiviral therapy for HIV," he says. "That has changed the whole approach to HIV. I suspect that some [HIV-infected] health care workers — indeed some that perform surgery or invasive procedures — are seeing their physicians being treated, and their viral loads are very low. In most people’s minds, that changes the risk."

But Gostin says the ethical approach would be to now change the policy that was somewhat understandably conservatively drawn a decade ago.

"I think the policy has been a failure, but I don’t criticize the CDC," he says. "I was one of the strongest advocates in favor of a highly restrictive policy. I believed at the time, since we didn’t have good data, that we should err on the side of caution and patient safety. Now with a decade of experience showing very low levels of risk and very higher numbers of individuals who have been subjected to discrimination and loss of privacy, I have changed my mind."

References

1. Gostin LO. A proposed national policy on health care workers living with HIV/AIDS and other blood-borne pathogens. JAMA 2000; 284:1,965-1,970

2. Gerberding J. Provider-to-patient HIV transmission: How to keep it exceedingly rare. Editorial. Ann Intern Med 1999; 30:64-65.

3. Lot F, Seguier JC, Fegueux S, et al. Probable transmission from an orthopedic surgeon to a patient in France. Ann Intern Med 1999; 130:1-6

4. Goujon CP, Schneider VM, Grofti J, et al. Phylogenetic analyses indicate an atypical nurse-to-patient transmission of human immunodeficiency virus type I. J Virol 2000; 74:2,525-2,532.

---