HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/BEHR1.ASC

Text File | 1993-01-14 | 59KB | 1,122 lines

/* This case is reported in 249 N.J.Super 597.  This is the most
comprehensive opinion concerning the legal rights of physicians
who are HIV positive to continue to work, as well as HIV privacy
litigation. It is presented in two parts. */

Behringer Estate

v.

Princeton Medical Center



CARCHMAN, J.S.C.

Plaintiff, William H. Behringer, [footnote 1] was a patient at
defendant Medical Center at Princeton (the medical center) when
on June 17, 1987, he tested positive for the Human
Immunodeficiency Virus (HIV, and combined with Pneumocystis
Carinii Pneumonia (PCP), was diagnosed as suffering from Acquired
Immunodeficiency Syndrome (AIDS).  At the time, plaintiff, an
otolaryngologist (ENT) and plastic surgeon, was also a member of
the staff at the medical center. Within hours of his discharge
from the medical center on June 18, 1987, plaintiff received
numerous phone calls from well-wishers indicating a concern for
his welfare but also demonstrating an awareness of his illness.
Most of these callers were also members of the medical staff at
the medical center.  Other calls were received from friends in
the community.  Within days, similar calls were received from
patients. Within a few weeks of his diagnosis, plaintiff's
surgical privileges at the medical center were suspended. From
the date of his diagnosis until his death on July 2, 1989,
plaintiff did not perform any further surgery at the medical
center, his practice declined and he suffered both emotionally
and financially.

Plaintiff brings this action seeking damages for: (1) a breach of
the medical center's and named employees' duty to maintain
confidentiality of plaintiff's diagnosis and test results, and
(2) a violation of the New Jersey Law Against Discrimination,
N.J.S.A. 10:51 et seq., as a result of the imposition of condi
tions on plaintiff's continued performance of surgical procedures
at the medical center, revocation of plaintiff's surgical
privileges and breach of confidentiality. Defendant denies any
breach of confidentiality and asserts that any action by the
medical center was proper and not a violation of N.J.S.A. 10:51
et seq.

This case raises novel issues of a hospital's obligation to
protect the confidentiality of an AIDS diagnosis of a health-care
worker, as well as a hospital's right to regulate and restrict
the surgical activities of an HIV-positive doctor. This case
addresses the apparent conflict between a doctor's rights under
the New Jersey Law Against Discrimination, N.J.S.A. 10:51 et
seq., and a patient's "right to know" under the doctrine of
''informed consent.''  This case explores the competing interests
of a surgeon with AIDS, his patients, the hospital at which he
practices and the hospital's medical and dental staff.

After a bench trial and consideration of the evidence presented,
this court makes findings of fact and conclusions of law as set
forth below.

To summarize, this court holds:

1.   The medical center breached its duty of confidentiality to
plaintiff, as a patient when it failed to take reasonable
precautions regarding plaintiff's medical records to prevent
plaintiff's AIDS diagnosis from becoming a matter of public
knowledge.

2.   Plaintiff, as an AIDS-afflicted surgeon with surgical
privileges at the medical center, was protected by the law
Against Discrimination. N.J.S.A. 10:5-1 et seq.

3.   The Medical Center met its burden of establishing that its
policy of temporarily suspending and, thereafter, restricting
plaintiff's surgical privileges was substantially justified by a
reasonable probability of harm to the patient

4.   The "risk of harm" to the patient includes not only the
actual transmission of HIV from surgeon to patient but the risk
of a surgical accident i.e., a scalpel-cut or needle stick, which
may subject the patient to post-surgery HIV testing.

5.   Defendant medical center, as a condition of vacating the
temporary suspension of plaintiff's surgical privileges, properly
required plaintiff, as a physician with a positive diagnosis of
AIDS, to secure informed consent from any surgical patients.

6.   The medical center's policy of restricting surgical
privileges of health care providers who pose "any risk of HIV
transmission to the patient" was a reasonable exercise of the
medical center's authority as applied to the facts of this case,
where plaintiff was an AIDS-positive surgeon. [footnote 2]



I.

A.

Plaintiff, a board-certified ENT surgeon, developed a successful
practice during his ten years in the Princeton area.  His
practice extended beyond the limited area of ear, nose and throat
surgery and included a practice in facial plastic surgery. He
served as an attending physician at the Medical Center since 1979
and performed surgery at the medical center since 1981.

In early June 1987, plaintiff felt ill.  He complained of various
symptoms and treated himself.  Acknowledging no improvement,
plaintiff consulted with a physician-friend (the treating
physician).  On June 16, 1987, plaintiffs companion arrived at
plaintiff's home and observed that plaintiff was in distress.  A
call was made to the treating physician, and at approximately
11:00 p.m., plaintiff and his companion proceeded to the medical
center emergency room, where plaintiff was examined initially by
a number of residents and, thereafter, by the treating physician.
The treating physician advised plaintiff that a pulmonary
consultation was necessary, and a pulmonary specialist proceeded
to examine plaintiff. A determination was made to perform a
bronchoscopy-a diagnostic procedure involving bronchial washings-
to establish the existence of PCP, a conclusive indicator of
AIDS.  The pulmonary consultant assumed that plaintiff, as a
physician, knew the implications of PCP and its relationship to
AIDS.  In addition, the treating physician ordered a blood study
including a test to determine whether plaintiff was infected with
HIV-the cause of AIDS.

Plaintiff's companion has no recollection of specific information
being transmitted to plaintiff regarding the HIV test, nor does
she recollect any specific "counselling" or explanation being
given to plaintiff about the significance, impact or confi
dentiality of a positive result of the HIV test.  While the
companion specifically denies any direct conversation between
plaintiff and his doctors regarding the HIV test, the pulmonary
consultant indicated that during his conversation with plaintiff,
the pulmonary consultant discussed PCP as one of a number of
possible diagnoses resulting from the test. Plaintiff was admit
ted to the medical center that evening.

Conforming to medical center policy, plaintiff executed a consent
form granting to the pulmonary consultant the general consent to
perform a bronchoscopy.  In addition, plaintiff executed a
special consent form granting specific consent to perform an HIV
blood test. During the morning of June 17, 1987, plaintiff
submitted to a bronchoscopy and returned to his room in the
afternoon, where he was described as "sedated" and "out of it."
Later that day, the pulmonary consultant reported to plaintiff
that the results of the tests were positive for PCP, and he
concluded that this information was new to plaintiff. Early that
evening, the treating physician returned to plaintiff's room, and
in the presence of plaintiff's companion, informed plaintiff that
the HIV test was positive.  Plaintiff was also informed that he
had AIDS.  Plaintiff's reaction, according to plaintiff's
companion, was one of shock and dismay. His emotions ranged from
concern about his health to fear of the impact of this
information on his practice. Plaintiff's companion described her
initial response as "who else knew?"  The treating physician
responded that he had told his wife; both plaintiff and his
companion, close personal friends of both the treating physician
and his wife, responded that "they understood."

It was readily apparent to all persons involved at this point
that plaintiff's presence in the medical center was cause for
concern. An infectious disease consultant and staff
epidemiologist suggested to plaintiff that he transfer to Lenox
Hill Hospital in New York or other available hospitals in the
area. After inquiry, it was determined that no other beds were
available. This concern for an immediate transfer appeared to be
twofold-to insure the best available treatment for plaintiff (the
treating physician suggested that AZT treatment be considered)
and to prevent plaintiff's diagnosis from becoming public.  It is
apparent that all parties involved to this point-plaintiff, the
treating physician, the epidemiologist and plaintiff's companion-
fully understood the implications of the AIDS diagnosis becoming
a matter of public knowledge. A determination was made that
plaintiff would leave the hospital and be treated at home.
Plaintiff was discharged from the hospital on the afternoon of
June 18, 1987. To minimize the significance of his condition,
plaintiff walked out of the hospital rather than following the
normal medical center practice of being wheeled out.

Plaintiff's concern about public knowledge of the diagnosis was
not misplaced.  Upon his arrival home, plaintiff and his
companion received a series of phone calls. Calls were received
from various doctors who practiced at the medical center with
plaintiff.  All doctors, in addition to being professional
colleagues, were social friends, but none were involved with the
care and treatment of plaintiff.  All indicated in various ways
that they were aware of the diagnosis. Statements were made
either directly to plaintiff's companion or by insinuation, such
as an inquiry as to whether the companion was ''tested.'' She did
not deny references to the diagnosis but admits that she "tacitly
acknowledged the diagnosis in one instance by silence." During
the evening of June 18, she received a call from social non-
medical friends who indicated their knowledge of the diagnosis
and expressed support to her and plaintiff. She indicated that
the relationships with various neighbors and friends changed as a
result of the diagnosis.  There was less social contact and
communication and what she perceived as a significant diminution
in the popularity of plaintiff.

Plaintiff's condition and the growing awareness of that condition
in the community impacted upon not only plaintiff's social
relationships but, more significantly, on his practice as well.
In July 1987, plaintiff returned to his office practice. During
his short absence from his office and in the ensuing months,
calls were received at his practice from doctors and patients
alike who indicated an awareness of plaintiff's condition and in
many cases, requested transfer of files or indicated no further
interest in being treated by plaintiff.  At one point plaintiff's
companion instructed Jeannie Weinstein, plaintiff's receptionist,
not to confirm any information regarding AIDS, and "instruct
patients that plaintiff did not have AIDS."  Over an extended
period of time, the practice diminished as more of plaintiff's
patients became aware of his condition.

Cancellations continued at an exceedingly high rate.  The effect
of plaintiff's condition was not limited simply to patient
relationships, but affected employees as well. As early as June
18, 1987, Weinstein, a long-standing employee of plaintiff,
received an office telephone call from a local physician
inquiring as to whether plaintiff had AIDS.  Weinstein responded
that she knew nothing about it but, thereafter, met with other
employees in the office and told them of the phone call. During
the two-week period after this call, some 15 to 20 calls were
received from various patients indicating knowledge of plain
tiff's condition.  An extensive list was prepared by Weinstein
indicating cancellation of appointments and patient requests for
records.  The list, for reasons not sufficiently explained, was
kept only until September 1987, when the listing stopped. During
this period, three employees left plaintiff's employ and a
replacement employee left one day after being hired upon learning
that plaintiff had contracted AIDS.  During the two years
following his AIDS diagnosis, plaintiff suffered from an ulcer,
was hospitalized for one week for a virus, and as a result of his
AIDS condition, lost sight in one eye. Plaintiff continued in an
office practice until his death on July 2, 1989.

B.

The medical center's reaction to plaintiff's condition was swift
and initially precise. Upon learning of plaintiff's diagnosis
from the chief of nursing, the president of the medical center,
defendant Dennis Doody (Doody), immediately directed the
cancellation of plaintiff's pending surgical cases.  This initial
decision was made with little information or knowledge of
potential transmission of the disease; thereafter, the chairman
of the department of surgery, having privately researched the
issue, reached a contrary result and urged that plaintiff could
resume his surgical practice. The medical center procedure for
suspending a physician's surgical privileges provides for summary
suspension by a vote of the department chair, president of the
medical center, president of the medical and dental staff,
chairman of the board of trustees, and the physician in charge of
the service.  While Doody was defeated in a vote for summary
suspension, the surgery remained cancelled, and the matter was
ultimately brought before the board of trustees.

Doody's motivation in seeking the suspension of surgical
privileges was described as one of concern for patients but also,
and perhaps more important, concern for the medical center and
its potential liability. Little was known about the dilemma now
facing the medical center.  In any event, plaintiff's surgical
privileges were cancelled and would never, during plaintiff's
life, be reinstated.

During the ensuing months, the medical center embarked on a
torturous journey which shifted course as views were explored
and, ultimately, a consensus reached between the medical and
dental staff, hospital administration and the board of trustees.

On July 2, 1987, plaintiff privately informed the chairman of the
department of surgery at the medical center of his medical
condition.  Plaintiff felt that the chairman of his department
should know of his health status and informed the chair that
plaintiff wished to continue to practice, including performing
surgery.

Doody called a special meeting of the executive committee of the
medical and dental staff which took place on July 13,1987. The
medical and dental staff is a body of physicians and dentists
operating under the aegis of the board of trustees of the
hospital.  The board approves the staff's by-laws and retains
ultimate decision-making authority.  At this meeting, the
executive committee passed a motion holding that "HIV positivity
alone is not a reason for restricting a Health Care Worker from
[the performance of] invasive procedures on the basis of data
currently available." Defendant Doody, the lone dissenter,
admittedly presented no scientific or medical basis for
disagreeing with the committee's recommendation.  Both the
medical literature from the centers for disease control (CDC) and
other authorities that were discussed, as well as defendant
medical center's staff epidemiologist noted that there were no
known cases of transmission of HIV from a health care worker
(HCW) to a patient. Later, however, the epidemiologist
recommended to defendant Doody that an HIV-infected surgeon
should not operate.  Defendant Doody acknowledged at trial, and
believed at the time of the special meeting, that the CDC was
"the number one resource on infectious disease in the United
States."

A second meeting of the executive committee of the medical and
dental staff was held on July 16,1987 to continue discussing the
issues raised by plaintiff's medical condition.  The committee
maintained its recommendations that, based on all available,
current scientific information, a surgeon with AIDS or one who is
HIV-positive should retain all of his privileges, be subject to
careful monitoring for competence and follow CDC recommended
precautions for invasive procedures.  At this meeting, the
physicians who were present concluded that there was no risk of
transmission that would require an HIV-positive surgeon to
disclose that fact to a patient as part of informed consent.
However, Doody and the medical center's legal counsel offered the
opinion that despite the absence of reported cases of
transmission from HCW to patient, a physician's HIV positive
status should be divulged in any informed consent form because of
"legal and social considerations."  The committee concluded that
a full meeting of the board of trustees was necessary to resolve
the issue.

A special meeting of the board of trustees was held on July 20,
1987. At this meeting the board of trustees was addressed by the
chairman of the department of surgery, the medical center's staff
epidemiologist, as well as physicians comprising the executive
committee of the medical and dental staff, who reiterated that no
cases of HIV transmission from HCW to patient had ever been
reported.  At the meeting, the issue of informed consent was
discussed at length. All members of the board of trustees were
provided with a packet of information that included current CDC
statements regarding performance of invasive procedures by HCWs
and copies of the minutes of the medical and dental staff
executive committee meetings, including a letter from the staff
to the board setting forth the staff's position. Doody and the
board were also informed that CDC recommended operating room
precautions were expected to prevent HIV transmission. The board
of trustees was told that the CDC recommended individualized
decision-making for HIV-positive HCWs, suggesting that decisions
regarding continued practice by an HIV-positive physician should
be made on a case-by-case basis. Doody expressed concern about
the hospital's reputation as well as potential litigation given
public fear of AIDS. After consideration of all of the
information presented, the board voted to require the use of a
special "informed consent form" to be presented to patients about
to undergo surgery by HIV-positive surgeons. The form read as
follows:

THE MEDICAL CENTER AT PRINCETON, NEW JERSEY  SUPPLEMENTAL
CONSENT FOR OPERATIVE AND/OR INVASIVE PROCEDURE

I have on this date executed a consent, which is attached hereto,
for (Procedure) ____________________________________ to  be
performed by Dr. ______________________.  In addition, I have
also been informed by Dr. ________________ that he has a positive
blood test indicative of infection with HIV (Human Im
munodeficiency Virus) which is the cause of AIDS. I have also
been informed of the potential risk of transmission of the virus.

     (witness) (signature of patient)

All parties recognized that in the absence of patients willing to
undergo invasive procedures by HIV-positive surgeons, this was  a
"de facto prohibition" from surgical practice.  Subsequent to the
July   20,  1987  meeting  of  the  board  of  trustees,  various
committees met as the issues concerning HIV-positivity  and  HCWs
continued  to  be  discussed at the medical  center.  To  further
explore  the  issues,  three meetings  of  the  joint  conference
committee  of  the board of trustees and the medical  and  dental
staff  were  held and are especially noteworthy.  These  meetings
occurred on October 29, 1987, November 19, 1987 and December  17,
1987.   At the first meeting, the epidemiologist spoke about  the
medical  information available concerning the issue  of  an  HIV-
positive  surgeon performing invasive procedures.  At the  second
meeting, Robert Cassidy, Ph.D., an ethicist and a member  of  the
faculty of the Robert Wood Johnson Medical School, discussed  the
legal  requirements for informed consent in New  Jersey.  At  the
third  meeting, Paul Armstrong, Esquire, presented the report  of
the  Council  on  Ethical and Judicial Affairs  of  the  American
Medical  Association, which deals with the issue of AIDS  in  the
health care environment.  The American Medical Association report
contains among its recommendations the following:

The  Council's new opinion on PHYSICIANS AND INFECTIOUS  DISEASES
is:  A  physician  who  knows that he or she  has  an  infectious
disease should not engage in any activity that creates a risk  of
transmission of the disease to others.

In the context of the AIDS crisis, the application of the
Council's opinion depends on the activity in which the physician
wishes to engage.

The  Council  on  Ethical  and Judicial  Affairs  reiterates  and
reaffirms the AMA's strong belief that AIDS victims and those who
are  seropositive should not be treated unfairly or  suffer  from
discrimination. However, in the special context of the  provision
of  medical  care, the Council believes that if a risk  of  trans
mission  of an infectious disease from a physician to  a  patient
exists,  disclosure  of  that risk to  patients  is  not  enough;
patients  are entitled to expect that their physicians  will  not
increase  their exposure to the risk of contracting an infectious
disease,  even  minimally. If no risk exists, disclosure  of  the
physician's medical condition to his or her patients  will  serve
no  rational purpose; if a risk does exist, the physician  should
not engage in the activity.

Armstrong  concluded  his  remarks  by  stating  that  the  above
provided  a  standard with regard to HCWs with HIV seropositivity
or AIDS which had not existed prior to its promulgation.

At the conclusion of the meeting on December 17, 1987, it was
suggested that if the board of trustees was to change its policy
regarding HIV-positive surgeons, the impetus for such change
should come from the medical and dental staff.  The president of
the medical and dental staff agreed that the issue would be
addressed at the January meeting of the staff's executive
committee.

At its January 25, 1988 meeting, the staff's executive committee,
after lengthy discussion, recommended that the following policy
be adopted by the board of trustees:

1.   The Medical Center at Princeton Medical and Dental Staff
will continue to care for patients with AIDS without
discrimination.

2.   A physician or Health Care provider with known HIV
seropositivity will continue to treat patients at the Medical
Center at Princeton, but will not perform procedures that pose
any risk of virus transmission to the patient.

This policy was proposed to the entire medical and dental staff,
and on February 11, 1988, a meeting of the full medical and
dental staff was held, at which time this new policy regarding
HIV seropositive surgeons was discussed. A recommendation was
forwarded to the board of trustees that this two-part policy be
adopted.

On June 27, 1988, the board of trustees met and, after questions
and discussions, adopted the following policy for HIV
seropositive health care workers:

POLICY FOR HIV SEROPOSITIVE HEALTH CARE WORKERS

1.   The Medical Center at Princeton Medical and Dental Staff
shall continue to care for patients with AIDS without
discrimination.

2.   A physician or health care provider with known HIV
seropositivity may continue to treat patients at The Medical
Center at Princeton, but shall not perform procedures that pose
any risk of HIV transmission to the patient. [Emphasis supplied]

This policy included a procedure for the recredentialling of
physicians. [footnote 3]  Although the policy was adopted, the
board did not change its prior requirement that a physician
obtain written informed consent from the patient prior to the
performance of surgical procedures.

Plaintiff's  privileges, as a "potential risk,"  were  ultimately
suspended  under  this policy, and no action  was  taken  by  him
challenging  the  policy  or seeking recredentialling  under  the
policy.

Following  his diagnosis of AIDS, plaintiff never again performed
surgery at the medical center.

C.

The  administration  of plaintiff's blood test,  resulting  in  a
finding of HIV positivity, warrants a critical examination of the
testing  procedures and efforts made by medical center to  insure
confidentiality of results.

In   1985,  the  medical  center  began  testing  blood  for  HIV
seropositivity  for its blood bank. Since HIV testing  was  avail
able  for  blood donors, HIV testing was also made  available  to
staff physicians, both for inpatients and outpatients. Initially,
the  reporting  procedures  for both inpatients  and  outpatients
required the physician to submit the blood to the laboratory with
only  a  code  number. After the test was completed, the  results
were returned to the physician under the code number, without the
patient's  name. This procedure was approved by  the  New  Jersey
Department  of Health. The testing procedure was administered  by
the  department of laboratories under the direction of  defendant
Leung   Lee,  M.D.  (Lee)  and  the  actual  responsibility   for
implementation  of the procedure was delegated to Ilana  Pachter,
M.D., at that time an employee of medical center.



II.

By 1986, many hospitals began to realize that the established
procedures were unworkable for inpatients. In 1986, a meeting was
held by the New Jersey Department of Health, which was attended
by representatives of many New Jersey hospitals, including
Pachter of the medical center. The consensus at the meeting was
that inpatient testing could not be conducted under a code number
system for a variety of reasons including lack of cooperation by
members of the medical staff.  In addition, it was felt that HIV
positive status was an important medical fact that should be
included within a patient's medical chart.

In response to this meeting, the department of health issued new
guidelines in October 1986 dealing with the reporting of HIV
results for hospital inpatients. The new guidelines included the
following:

1)   Testing facilities must make reasonable efforts to maintain
confidentiality. 2) For in-patients and clinic out patients,
specimens may be received with the patient's name on them. These
specimens must be encoded, (e.g., assignment of lab I.D. numbers)
in the laboratory before testing occurs, so that test results do
not appear with the patient's name in the laboratory's work
records. The results of these assays may be placed on the patient
chart in the same manner as other routine tests.

These stated procedures were designed to recognize and deal
appropriately with the issue of confidentiality.  While health
care facilities recognized the need for confidentiality, an addi
tional, yet critical, element of HIV-test protocol required com
munication with the patient. This communication took the form of
pretest counselling of patients prior to the administration of
the HIV test.

[1] Pretest counselling for HIV blood tests has been the standard
of practice since the beginning of HIV testing. Such counselling
includes discussion about the disclosure of test results and an
identification of those having access to test results. Before HIV
tests are given, patients are counselled as to the privacy and
confidentiality implications of being identified as HIV-infected.
These implications are explained to symptomatic and asymptomatic
patients alike. Members of the medical center's department of
laboratories attended New Jersey Department of Health seminars
prior to June 1987, at which pretest counselling was addressed.

Pretest counselling was not a procedure limited to New Jersey.
It was recommended by public health authorities, including the
CDC prior to June 1987.  In 1987, accepted medical practice
called for patient counselling concerning, inter alia, privacy
and confidentiality prior to obtaining consent for an HIV test.

While no question was raised at trial that the responsibility for
pretest counselling appropriately rested with the treating
physician, the record is devoid of any suggestion that any pre
test counselling of plaintiff, either in oral or written form,
took place during the period June 16 to June 18, 1987.  While
plaintiff was, by profession, a physician, he was, during this
period, a patient at the medical center. No one in this
litigation suggests that plaintiff was not entitled to all of the
protections afforded any other patient. The informed consent form
promulgated by the department of laboratories at the medical
center and signed by plaintiff, does little to correct this
apparent deficiency.  The form provides as follows:

CONSENT FORM . .

I William Behringer hereby give my consent to the Medical Center
at Princeton to have my blood tested for antibodies to HTLV III
Virus as ordered by my physician.  The results of the test will
be reported only to the ordering physician.

Date 6/17/87   Patient signature   William Behringer

                         Witness (illegible)

                         PATIENT CODE NO. 865353

The test was ordered by the treating physician on admission and
administered sometime on June 17, 1987.  The informed consent
form indicated a time of 1:00 p.m.  At approximately 2:00 p.m.,
the infectious disease specialist went to the department of
laboratories at the medical center to determine the status of
plaintiff's HIV blood test.  Upon learning that the test had not
been conducted, the infectious disease specialist asked lee to
conduct the test on an expedited basis.  Lee agreed and
instructed the blood bank supervisor to conduct the test as soon
as possible. Plaintiff's name was identified to the supervisor by
the infectious disease consultant and Lee. Since plaintiff's
blood sample was already in the lab, the sample had been given a
code number, and plaintiff's name was removed from the sample.
Plaintiff's name and code number had been placed in a locked
filing cabinet pursuant to laboratory procedures. The supervisor
went to the locked file cabinet, looked up plaintiff's name and
obtained the code number for his blood sample.  The blood sample
was then located by reference to the code number and was given to
a laboratory technician with instructions to conduct the HIV
test. This occurred sometime between 2:30 and 3:30 p.m.  The
technician was not provided with the name of the patient for whom
the HIV test was being conducted.

Since the technician left work at 3:30 p.m. each day and since
the test takes approximately four hours, she did not conclude the
test and thus did not learn the results.  The test was concluded
by the supervisor at approximately 6:00 p.m., at which time the
results, which were positive, were relinked to plaintiff's name
in the record maintained in the locked file cabinet pursuant to
the standard procedures followed by the department of
laboratories.

Prior to the test, the infectious disease specialist who had
requested the test be conducted asked Lee to telephone him with
the results as soon as they became available. Accordingly, Lee
instructed the supervisor to telephone him at home with the
results as soon as they were available.

Early that evening, the supervisor called Lee at home and
informed him that plaintiff's HIV test was positive. As he had
been instructed, Lee called the infectious disease specialist and
advised him of the results.

During the late afternoon or early evening of June 17, 1987,
after receiving the positive HIV results, the infectious disease
specialist spoke with plaintiff and suggested he might want to
seek treatment at another hospital to protect his
confidentiality. Later, the infectious disease specialist
attempted without success to arrange for the transfer of
plaintiff to either Lenox Hill Hospital or Columbia Presbyterian
Hospital in New York City.

On June 18, 1987, pursuant to normal procedures, the department
of laboratories ran a follow-up confirmation HIV test. The result
was again positive and a preprinted form was prepared indicating
a positive result. The preprinted form was taken by the
supervisor and presented to Pachter, who signed it.

Normal procedures within the department of laboratories called
for the test result to be taken by a blood-bank technician and
handcarried to the patient's chart and placed in the section of
the chart designated for laboratory results. All other laboratory
test results are placed in the patient's medical chart by
clerical personnel. This special procedure for HIV test results
was implemented by the department of laboratories as an
additional safeguard for patient confidentiality.

The above procedure was not immediately carried out but was
delayed in an effort to protect plaintiff's confidentiality. In a
telephone conversation during the afternoon of June 18, the
treating physician and Pachter agreed that since plaintiff was to
be discharged from the medical center late that afternoon, the
HIV test results should be held back and charted as late in the
day as possible.  Therefore, consistent with the agreement
reached with the treating physician, Pachter instructed the
supervisor to handcarry the result to the patient's chart just
before she left for the day.

Since the supervisor worked until 4:30 p.m. each day, she
believes that she took the HIV-positive result to plaintiff's
chart sometime between 4:15 and 4:30 p.m. on June 18, 1987.

Upon arriving at the nurses station on plaintiff's floor, the
supervisor was unable to locate the chart. She asked the nurse on
duty for the chart, at which time the nurse went to plaintiff's
hospital room, obtained the chart and delivered it to the
supervisor.  She, without commenting on the HIV test or the
results, placed the test results in the section of the chart
designated for laboratory results.

At approximately 4:30 p.m. on June 18,1987, plaintiff was
discharged from the medical center.

The implications of charting the results of the HIV test were
well recognized. Both Lee and the infectious disease specialist
discussed the acute need to keep the test results confidential
and even went so far as to affirmatively determine not to
disclose the results to Doody; moreover, the charting was
withheld by design until plaintiff left the hospital.

While there is some dispute as to the propriety of charting as an
acceptable medical practice, the medical center felt there were
safeguards in the general confidentiality guidelines set forth in
its by-laws and employee manuals.  According to stated policy,
charts were limited to those persons having patientcare
responsibility, but in practical terms, the charts were available
to any doctor, nurse or other hospital personnel. Despite the
CDC's recommendation that access to HIV results be limited, the
medical center had no policy physically restricting access to the
HIV test results or the charts containing the results to those
involved with the particular patient's care. In addition, the
broad confidentiality policies of the medical center specifically
restrict HCWs from discussing patient's charts with other HCWs.

The employees of the medical center were not given any
instructions advising them of the confidentiality of HIV test
results. The department of laboratories of the medical center
took no steps to ensure that HIV test results were kept
confidential by other departments of the medical center after
being placed in patient charts. Under Lee, the department of
laboratories ran no confidentiality training programs despite the
fact that it was responsible for HIV testing.

Plaintiff's medical chart was kept at the nurses' station on the
floor on which plaintiff was an inpatient. Not only was the HIV
result charted, but his AIDS diagnosis was noted at numerous
places therein. No effort was made to keep knowledge of this
diagnosis limited to persons involved in plaintiff's care.  There
was no written or verbal restriction against any HCW involved in
plaintiff's care discussing plaintiff's diagnosis with other
medical center employees. Employees not involved in his care did
learn of plaintiff's diagnosis. Employees of the medical center
who had been plaintiff's patients ceased going to him for medical
services. Given the significance of a physician-patient with a
diagnosis of AIDS and the lack of special procedures directed at
securing confidentiality, the inevitable happened.  As noted
earlier, within hours of the diagnosis, word of plaintiff's
illness was "on the street." Any suggestion of subsequent
breaches of confidentiality are superfluous.

D.

Plaintiff was diagnosed in June 1987 as having AIDS as a result
of the positive HIV blood test and the diagnosis of PCP.

The expert testimony presented by both plaintiff and defendants,
while differing significantly as to conclusion, was consistent as
to the scientific underpinnings upon which their conclusions
about HIV positively and AIDS were based. Both plaintiff's
expert, Peter Selwyn, M.D., an epidemiologist and the head of
AIDS research at the Montefiore Medical Center in the Bronx, New
York, and defendant's expert, Lorraine Day, M.D., an orthopedic
surgeon from San Francisco, California, who has been an active
spokesperson nationally on the issue of AIDS, based their
conflicting opinions on the following common data:

1)   A British study revealed that there were 112 needlestick and
scalpel cuts in 2,000 reported operations, (5%). [footnote 4]

2)   The CDC has reported nine cases of transmission of HIV from
patient to HCW.

3)   A risk of transmission of HIV from HCW to patient of 0.5% or
less is a quantifiable risk.

4)   As of June 1989, the date of plaintiffs death, there was no
reported case of transmission of HIV from HCW to patient.

5)   Once contracted, AIDS is fatal usually within two years.

As to the effect of these studies and facts, the experts sharply
disagree. Selwyn opined that there was no reasonable medical or
scientific basis for defendant's decision restricting plaintiff's
surgical privileges which, Selwyn claims, was based on unfounded
fears of HIV transmission as a potential area for litigation
against the hospital.

Selwyn has been extensively involved in the clinical treatment of
AIDS, AIDS-related teaching and research, and the development of
AIDS-related policy at both the local and global levels. As an
assistant professor of epidemiology at Albert Einstein College of
Medicine and a physician at Montefiore Medical Center in New
York, Selwyn has been responsible for conducting AIDS-related
epidemiological studies, and has personally cared for several
hundred patients with HIV infection or AIDS. He has participated
in the formation of hospital policies and hospital training
programs concerning HIV infection and AIDS, and has studied the
nature and risk of HIV transmission. He is well-qualified as an
expert in this field.

In his analysis of the issues, Selwyn utilized scientifically
accepted information, statistics and health care facility reac
tions to the treatment of hepatitis B virus and transmission
between patient and HCW.

Hepatitis B, the virus that causes hepatitis, is a blood borne
infectious disease transmitted through similar routes as HIV.
Selwyn noted that the estimated rate of death among HCWs who
contract hepatitis B, which develops into chronic disease in
approximately six to ten percent of those cases, is higher than
any estimates of HCWs occupationally infected with HIV.

In addition, he stated that for both hepatitis B and HIV, the
risk of an HCW transmitting the virus to a patient is substan
tially less than the risk of a patient transmitting the virus to
an HCW.  Moreover, the risk of transmission of HIV from an HCW to
a patient is even lower than the risk of an HCW transmitting
hepatitis B to a patient. The recorded estimates of hepatitis B
transmission from physicians to patients have all been based on
anecdotal reports and are essentially reduced to situations where
breaches in medical technique, such as a dentist's failure to
wear gloves, were associated with increased likelihood of blood-
to-blood contact. Where such breaches did occur and then
precautions were instituted and studied, transmission of
hepatitis B did not occur again. The medical center's
epidemiologist agreed with Selwyn on this issue.  The
epidemiologist informed the medical and dental staff and Doody
that change in technique would affect the risks of such trans
missions.

Hepatitis B is less likely to be fatal but is more readily
transmitted than HIV. Selwyn estimated that statistically the
risk of death from exposure to a surgeon with HIV would be about
the same as that from exposure to a surgeon with hepatitis B.  Of
critical importance, however, is that of the transmitted
diseases, if the HIV infection develops into AIDS, fatality is
certain.

While Selwyn noted the similarities between HIV and hepatitis B
transmission, he indicated that there were no restrictions placed
on hepatitis B-positive doctors performing invasive procedures;
however, the record is absent any facts indicating any cases of
hepatitis B-positive doctors performing any invasive procedure at
the medical center.  In this regard, Selwyn did note that such
matters as surgeon's wound infection rates or a history of
substance abuse would be critical to a patient's knowledge of the
risks attendant to a surgical procedure, but no informed consent
requirements have been imposed on physicians anywhere which
require the physician to inform patients of such risks.

Selwyn observed that even assuming that an HIV-positive physician
nicked a finger during surgery and a drop of the physician's
blood fell into the patient, the risk of that patient contracting
HIV is less than one-half of one percent. Selwyn explained that
the actual risk of ultimate transmission is diluted by the
probability of a series of events happening, all of which would
be necessary before exposure occurs. Whether an injury occurs,
whether it occurs within range of the patient's blood, whether
the surgeon's blood makes its way out from beneath two layers of
gloves, and whether there is then a transmission of the surgeon's
blood into the patient's blood, are all independent events that
geometrically reduce the chance of blood-to-blood contact.  This
reduces the less than one-half of one percent chance of infection
associated with contact. Day conceded that the chance of all
these events occurring in a procedure was .0025%.  Selwyn added
that the risk factor was affected by the nature of the surgery
performed, e.g., orthopedic surgeons or gynecological surgeons
operating in some areas by "feel" bear a higher risk of accident
than do surgeons such as ENT specialists.

Selwyn's conclusion that the risk of transmission of HIV from an
HIV-positive surgeon to a patient is remote was an accepted
premise in 1987 at the time defendants learned plaintiff had
AIDS.

Selwyn further concluded that no restrictions should have been
placed on plaintiff's practice simply because of HIV infection.
For situations like plaintiff's, Selwyn recommended that the
hospital, department chief, and HIV-positive physician monitor
the physician's competence to perform, institute whatever
precautions might further reduce the already remote risk of
transmission, and discuss the surgeon's techniques and
procedures.  All parties must be educated as to the actual risk
or absence of risk of transmission and discussion and agreement
must be private.

Selwyn felt that an informed consent requirement was
inappropriate.  He testified that while a patient might "want" to
know the health status of the physician, the risk was not so
significant that a patient would "need" to know the information.
He did not feel this was a "risk within a reasonable medical
opinion."  Selwyn concluded that only risks "within a reasonable
medical opinion" were necessarily divulged to a patient.
[footnote 5] Although internal review by doctors' clinical
supervisors has been used satisfactorily in other instances where
doctors have medical problems, the medical center took no such
steps in this case.

[2]  Day's conclusions differed significantly from those of
Selwyn, especially in the area of restriction on practice.  Day
has served as the chief of orthopedic surgery at San Francisco
General Hospital. While not an epidemiologist, she has served on
numerous AIDS-related committees including the AIDS Task Force of
the American Academy of Orthopedic Surgeons. She lacked the
training or full understanding of AIDS-related issues that was
demonstrated by Selwyn and provided much undocumented statistical
information which must be discounted, or in some cases,
disregarded.  Day, however, did provide some practical insight
into a practitioner's concerns about AIDS as applied to both the
affected doctor and patient. [footnote 6]  Day testified that
transmission of the disease can occur when HIV infected blood
comes in contact with an intact mucous membrane and, further
pointed out that an ENT surgeon performs surgery in the area of
an intact mucous membrane.  In addition, she noted that much of
ENT surgery is performed "blind," making the ENT surgeon a high-
risk candidate for surgical nicks or cuts. As a practical matter,
she added, surgeons incur needle sticks and other cuts in the
operating room on a regular basis, and the wearing of surgical
gloves does not protect a surgeon from needle sticks or bleeding
into the patient's surgical wound or oral cavity.

Day vigorously disputed Selwyn's conclusion that a patient need
not know the surgeon's HIV-positive status. Both Selwyn and Day
made reference to recommendation no. 5 in the CDC's
recommendations and guidelines concerning AIDS, dated April 11,
1986, which provides:

If an incident occurs during an invasive procedure that results
in exposure of a patient to the blood of an HCW, the patient
should be informed of the incident, and previous recommendations
for management of such exposures should be followed. [footnote 7]

While Selwyn accepted recommendation no. 5, Day was highly
critical of its application.  She indicated that the effect of
HIV exposure on a patient would be significant, including
periodic HIV testing over a period of at least one year and
counselling regarding major lifestyle changes, involving such
matters as sexual practices and decisions regarding conceiving
children. [footnote 8] The impact of the application of
recommendation no. 5 would be enormous anxiety and mental
anguish, which could be avoided if the patient were advised of
the surgeon's condition before the surgery and, obviously, the
surgical accident Day strongly advocated the patient's "need" to
know the surgeon's status by use of an informed consent
procedure.

The experts differed significantly in the area of confidentiality
and the charting of the results of the HIV blood test.  Selwyn
felt that the charting and dissemination of information from
plaintiff's chart, including the results of the bronchoscopy,
required special handling.  In addition, Selwyn concluded that
because of the absence of counselling of plaintiff there was no
"informed consent" as to the HIV blood test.  Both experts agreed
that the responsibility for counselling is an obligation imposed
on the treating physician; nevertheless, insuring that
counselling takes place and is conducted in an appropriate manner
is a responsibility that is shared by the hospital as well.

Selwyn opined that access to the chart should be limited to
persons within the "clinical realm" having "a need to know." He
noted that the CDC guidelines require universal precautions,
i.e., treating all patients as if they were HIV positive-to avoid
transmission. If usual precautions are observed, nothing
clinically is gained by charting the test results without restric
tion. In addition, Selwyn felt that the use of special measures
to insure confidentiality must be considered when dealing with an
HCW. Various alternatives to unrestricted charting of an AIDS
diagnosis include charting the HIV result separately or
segregating the chart.  Day, voicing a contrary position, felt
the chart should be readily available with all information dis
played so as to provide any person treating the patient on an
emergency basis with full information as to the test results and
diagnosis.  Ironically, at Day's hospital the HIV test results
were kept in a separate envelope attached to the chart.



II.

Any examination of the legal issues in this matter requires an
understanding of AIDS and HIV.

AIDS is a viral disease that weakens or destroys the body's
immune system. The disease is caused by the presence of the Human
immunodeficiency Virus ("HIV"), which attacks the body's T-
lymphocyte cells that are a critical part of the body's immune
system.  As a result, the body is unable to withstand infections
it would normally suppress. These resulting infections, known as
"opportunistic diseases," eventually cause permanent disability
and death. AIDS is defined by New Jersey health regulations as
the presence of both the  HIV virus and one or more opportunistic
diseases. Thus, a person may test positive for the HIV virus and
yet not exhibit any signs of illness; that person is
asymptomatic.  Persons who exhibit effects of immunodeficiency,
such as fever, weight loss, night sweats, or diarrhea, but do not
have any opportunistic diseases are described as having AIDS-
related Complex ("ARC"). See NJAC. 8:57-1.14(b). AIDS has no
known cure. [Doe v. Barrington, 729 F.Supp. 376, 380
(D.N.J.1990); footnotes omitted; see also Board of Ed. of
Plainfield v. Cooperman, 209 N.J.Super. 174, 195-200, 507 A.2d
258 (App.Div.1986), mod & aff'd 105 NJ 587, 589-590,  523 A.2d
655 (1987)].

A summary of the testimony of Selwyn and Day reveals the
following facts about AIDS.  AIDS is diagnosed by the presence of
one of the indicator opportunistic infections, such as PCP or
Kaposi's sarcoma.  Thus, the diagnosis of AIDS is consistent with
a positive HIV blood test and PCP.  HIV infection is not AIDS and
there is some dispute as to the length of the "incubation period"
between HIV infection and the onset of AIDS. The experts here
speculated that this period ranges from months to years.

[3]  While the issue of HIV transmission is still subject to some
controversy and debate, three methods of transmission have been
generally identified: (1) intimate sexual contact; (2) parenteral
(e.g., injection or other invasive procedure breaking the skin)
or mucous-membrane inoculation of blood; and (3) from a woman to
her child during pregnancy, delivery, or shortly after birth
(through infected breast milk). Casual contact between persons
has not been established as a means of transmission. While HIV is
described as less contagious than other viruses, Selwyn and Day
generally agree that one suffering from AIDS is more contagious
than one simply HIV infected. At the relevant times in this
action there were no reported cases of transmission of HIV
infection from a health care worker to a patient. [footnote 9]
Notwithstanding the absence of a reported case at the time of
trial, neither side argued that such transmission was not
possible.  Both sides agreed that the risk of transmission could
be quantified.  The nature, extent and significance of such risk
is a critical and contested issue in this case.

HIV was isolated in 1983.  Thereafter, scientists developed tests
that detect the presence of HIV antibodies in blood.  The mean
latency period between initial infection by the virus and the
onset of AIDS is, according to current figures, in excess of five
years.  This may he an underestimate of the actual mean latency
period, because at the time of trial, the AIDS epidemic had only
been under observation for approximately eight years.

AIDS proves fatal in virtually every reported case.  Although no
cure for AIDS presently exists, doctors have made progress in
treating the opportunistic infections associated with AIDS. In
addition, certain treatments have shown promise in slowing the
progression from HIV infection to AIDS to death.  People with
AIDS often have extended periods during which they have only
minor symptoms, if any, and are able to lead full, productive
lives.

AIDS presents a significant medical and social crisis for New
Jersey and the United States as a whole. At the time of trial,
over 3,000 residents of New Jersey were diagnosed with AIDS; an
estimated 100,000 New Jersey citizens-one out of every 75
residents-were infected with HIV.  Bushburg & Convisor, Clinical
Guidelines for the Diagnosis & Treatment of AIDS (N.J.Dept. of
Health 1988) at 8.



III.

Plaintiff asserts that the medical center, Doody and Lee breached
a  duty  of  confidentiality in failing  to  restrict  access  to
plaintiff's medical records, thus causing widespread and improper
dissemination of information about plaintiff's medical condition.
Plaintiff   argues   that  as  a  result  of   this   breach   of
confidentiality, his ability to practice was impaired so  signifi
cantly  that his medical practice was damaged, if not  destroyed.
Plaintiff's confidentiality-based claims arise out of his  status
as a patient  While plaintiff was unable to identify specifically
the  actual sources of the disclosure of his diagnosis, he argues
that   the  medical  center's  failure  to  implement  meaningful
restrictions  on access to his medical records is  sufficient  to
establish  liability.  In sum, he urges that the failure  of  the
medical center to take reasonable precautions regarding access to
his  records  establishes liability. Defendants  argue  that  any
disclosure  by its employees or others outside of its control  is
its responsibility and cannot be the basis of liability.

[4, 5]  The physician-patient privilege has a strong tradition in
New Jersey.  The privilege imposes an obligation on the physician
to  maintain  the  confidentiality of a patient's communications.
Stempler  v.  Speidell, 100 N.J. 368, 495 A.2d 857 (1985).   This
obligation  of  confidentiality applies to  patient  records  and
information  and applies not only to physicians but to  hospitals
as  well.   Unick v. Kessler Memorial Hosp., 107 N.J Super.  121,
257  A.2d  134 (Law Div.1969).  This duty of confidentiality  has
been  the subject of legislative codification which reflects  the
public  policy of this State. N.J.S.A. 2A:84A-22.1 et  seq.   The
patient must be able "to secure medical services without fear  of
betrayal    and   unwarranted   embarrassing   and    detrimental
disclosure...." Piller v. Kovarsky, 194 N.J Super. 392, 396,  476
A.2d  1279  (Law  Div.  1984). The privacy  right  on  which  the
privilege   is  based  has  been  held  to  a  level   warranting
constitutional  protection.  See United States  v.  Westinghouse,
638  F.2d  570, 577 (3 Cir.1980); Doe v. Barrington,  supra,  729
F.Supp. at 382.

Notwithstanding the strong policy in favor of the physician
patient privilege and the ensuing obligation of confidentiality,
exceptions to the privilege have been widely recognized.  In
Hague v. Williams, 37 N.J 328,181 A.2d 345 (1962), which predates
N.J.S.A. 2A:84A-22.1 et seq., plaintiff claimed damages as a
result of the disclosure of a child's condition to an insurance
carrier.  The Supreme Court noted both a "public interest" and a
"private interest of the patient" exception to the privilege. In
McIntosh v. Milano, 168 NJSuper. 466, 403 A.2d 500 (Law Div.1979)
Judge Petrella discussed the concept of the "duty to warn" third
parties as an exception to the general rule of confidentiality.
McIntosh noted that the Principles of Medical Ethics recognizes
the non-absolute nature of the obligation of confidentiality.

A physician may not reveal the confidences entrusted to him in
the course of medical attendance, or the deficiencies he may
observe in the character of patients, unless he is required to do
so by law or unless it becomes necessary in order to protect the
welfare of the individual or of the community. [American Medical
Association, Principles of Medical Ethics (1957)  9; McIntosh v.
Milano, supra, 168 N.J. Super. at 491, 403 A.2d 500]

See also Tarasoff v. Regents of Univ. of California, 17 Ca 1. 3d
425, 551 P.2d 334,131 Cal.Rptr. 14 (1976). [footnote 10]

An  additional exception to the concept of confidentiality  is  a
physician's  or hospital's statutory obligation to  report  conta
gious  diseases to health authorities. N.J.S.A. 26:4-15  requires
that  "[e]very  physician  shall,  within  12  hours  after   his
diagnosis  that  a person is ill or infected with a  communicable
disease ... report such diagnosis and such related information as
may be required by the State Department of Health." N.J.S.A. 26:4-
19  similarly requires that the supervisor of a public or private
institution report to the local health board any diagnosis  of  a
contagious disease made within the institution. N.J.A.C. 8:57-1.3
sets  forth  a  list  of  communicable  diseases  reportable   by
physicians.  The  list was amended in 1983,  effective  March  7,
1982,  to  require  that patients diagnosed with  PCP-plaintiff's
diagnosed  condition-be reported to the New Jersey Department  of
Health.

[6]  Certainly, a most apparent exception to the general rule  of
confidentiality is the implied right to make available to  others
involved  in  the  patient's care information necessary  to  that
care.  Plaintiff does not argue that the legitimate disclosure of
his  medical information under this patient care exception  is  a
basis  of his cause of action. Both N.J.S.A. 2A:84A-22.2 and  the
recently  enacted provisions of N.J.S.A. 26:5C-8 (which  postdate
the  events  in  this  matter) allow for the dissemination  of  a
patient's records and information

...[t]o qualified personnel involved in the medical education  or
in  the  diagnosis and treatment of the person who is the subject
of  the record.  Disclosure is limited to only personnel directly
involved  in medical education or in the diagnosis and  treatment
of the person.

It  is against this basic policy and statutory framework that the
conduct  of  a  hospital dealing with an  AIDS  patient  must  be
measured. [footnote 11]



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