Workers' comp changes sought for infected HCWs
Managing HIV-positive Health Care Workers
Workers' comp changes sought for infected HCWs
Occupationally infected workers face legal obstacles
Health care workers who have been occupationally infected with HIV often encounter frustrating legal obstacles to collecting workers' compensation benefits, but advocates are seeking to change workers' comp laws nationwide and to pressure hospitals into purchasing devices that can prevent HIV-contaminated needlesticks.
Many HCWs who sustain needlestick injuries that result in HIV seroconversions, as well as other occupational diseases, "are unaware of the limitations of the workers' compensation system until they apply for benefits," says Patti Miller Tereskerz, JD, PhD, MS, director of health law and safety for the Health Care Worker Safety Research and Resource Center at the University of Virginia in Charlottesville.
Tereskerz recently co-wrote an article calling for legislation to reform the workers' comp system.1 By bringing the issue to the forefront, she hopes hospitals will feel the pressure of legal incentives to purchase safer needle devices.
Presently, the "exclusive remedy provision" of workers' compensation laws precludes employees from suing employers to recover damages for an occupational illness or injury. State laws allow disabled employees to receive benefits for qualifying occupational injuries and illnesses, while shielding employers from liability. What Tereskerz proposes is "more equitable remedies" that, among other things, would allow HCWs who have seroconverted from HIV-infected needlesticks from conventional devices to file civil suits against their hospital employers.
"The pitfalls of the exclusive remedy provision have been debated in the legal literature, but have not been looked at before exclusively from a bloodborne pathogens perspective," Tereskerz says. "Many legal scholars in the past have argued for removing exclusive remedy provisions because they are a disincentive for instituting safety."
Safety devices are more expensive than conventional ones, and many hospitals choose not to purchase them for financial reasons.
Late last year, U.S. Rep. Pete Stark (D-CA) introduced the Health Care Worker Protection Act of 1997. The legislation would require hospitals to use needles that meet certain safety standards for preventing needlesticks or face losing Medicare funds. If the bill is enacted into law, it could minimize the need for changes in workers' comp laws to pressure hospitals.
In addition, Tereskerz points out that workers occupationally infected with HIV often have significant problems collecting workers' compensation due to the law's restrictive definition of an occupational disease. Using hepatitis B as a legal liability model for HIV, she notes that conflicting court decisions have been handed down regarding whether HBV meets the definition of an occupational disease under workers' comp laws.
Another problem of the workers' comp system is the amount claimants can expect to collect, which Tereskerz says is often inadequate. While civil suit claimants, if successful, may collect damages for pain and suffering in addition to lost income and medical expenses, workers' comp laws do not provide full restitution.
Reference1. Tereskerz PM, Jagger J. Occupationally acquired HIV: The vulnerability of health care workers under workers' compensation laws. Am J Public Health 1997; 87:1,558-1,562.
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