HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/BEHR2.ASC

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/* Behringer, part 2 */



[7] The present day public perception of AIDS was an important
consideration in the adoption and implementation of procedures
established by the department of health and the medical center.
The impact of the public perception has been widely recognized.

Individuals infected with HIV, whether HCP [health care
professional] or patient, 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 (IV) 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 workplace.
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. [Gostin, op. cit. supra at 46;
footnotes omitted]

Intimately involved with the issue of confidentiality are the
issues of pretest counselling and informed consent of the patient
to allow the hospital to test.  In May 1986, Ilana B. Pachter,
M.D. of the medical center department of laboratories advised the
medical and dental staff as follows:

Because of the far-reaching social and personal consequences of
both the request for this test and the results of this test, it
is recommended that patients never be tested without their
knowledge and that appropriate written informed consent be
obtained prior to performance of the HTLV-III ELISA test. The
test should not be ordered using the blanket consent on hospital
admission.

To fully implement an intelligent informed consent, [footnote 12]
the department of health with both Selwyn and Day concurring,
agreed that there must be pretest counselling of a patient prior
to the administration of the HIV-test.  This need has been widely
recognized by the health care institutions, as well.

Hospitals that perform HIV tests for any purpose must recognize
the extreme sensitivities associated with these tests by adopting
policies that address the use of informed consent, the standards
for using an HIV test as a screening device, notification of
patients, the need for counseling, the appropriate use of test
results to influence treatment decisions, and the maintenance of
confidentiality of information about HIV status....

Hospitals routinely seek a general consent to treatment when a
patient is admitted. Specific consents for individual laboratory
tests for diagnostic procedures are rarely sought. ...  But
because a positive HIV test can have profound implications for an
individual's health and lifestyle, it is widely accepted that
patients should receive information about the implications of HIV
testing before and after the test is performed. Patients who have
been advised of the implications of testing beforehand may be
better prepared to cope with the ramifications of a positive
result....

The Committee recommends that when an HIV test is performed for
any reason other than blind epidemiologic studies on HIV
prevalence, the informed consent of the patient should be
obtained. The physician is the most appropriate person to seek
consent because he or she can fully explain the nature of the
test and its implications.  In obtaining the consent, the
individual requesting the test should explain the reasons for
conducting the test, describe the way in which the test results
may affect the patient's care, review the personal significance
for the patient of the possible results of the test, and arrange
for appropriate counseling as determined necessary by the
physician.  [American Hospital Association, AIDS/HIV Infection
Policy: Ensuring a Safe Hospital Environment, (November 1987) iv-
v; see also New Jersey Hospital Association, Guidelines for
Meeting the Challenges of AIDS (1988) adopting a similar policy]

In March, 1986, the New Jersey Department of Health circulated a
memorandum to physicians and hospitals stressing the need for
patient counselling in the administration and interpretation of
HIV testing. In June 1987, when plaintiff was admitted to the
medical center, counselling was a critical procedure.

While the immediate obligation of person-to-person counselling
rests with the physician in charge of the case, the health care
facility is still intimately involved in the counselling process.
The record is devoid of any evidence that pretest counselling was
administered to plaintiff either by the treating physician or by
hospital personnel.  More significantly, however, the form issued
under the name of and utilized by the medical center for
fulfilling the informed consent requirement is troublesome on its
face. The form prepared by the medical center contained the
following language:

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.  [Emphasis supplied)

The form mentions a report only to the ordering physician. The
procedures utilized by the medical center not only included a
report to the attending physician; but, more significantly,
allowed for placement of the test results on the chart without
limitation on the availability and access of the chart to the
entire medical center community. While the regulations of the
medical center appear to impose limits on access, Doody's
testimony revealed that access to the chart by medical center
personnel was virtually without restriction.  Whatever assurance
the patient received from the consent form as to the
confidentiality of the test was dispelled by the charting of the
results and the failure of the medical center to inform the
patient of the potential for public exposure through the chart of
the test records.

The issue of charting was the subject of intense debate between
Selwyn and Day. Selwyn urged that the chart, or at least the test
results, be available on a "need to know" basis with HIV test
results being sequestered in a different location. Day, on the
other hand, called for open access to the chart and test results
because of the HCW's need to have full knowledge of the patient's
condition in case of emergency or otherwise. When considering the
issue in terms of a physician as a patient in his own hospital,
the need for careful treatment of diagnostic or other medical
information becomes more acute.  Professor Gostin commented
specifically in reference to HIV-positive physicians:

... physicians have strong grounds for desiring personal privacy
and confidentiality of medical information. Their cooperation
with the hospital in protecting against the spread of infections
relies upon their trust that their serological status will be
kept confidential.  [Gostin, "HIV-Infected Physicians and the
Practice of Seriously Invasive Procedures," Hastings Center Rep.
(Jan.-Feb. 1989) at 32, 36.]

The  significance of the concern expressed by Gostin was not lost
on the infectious disease specialist or Lee. Notwithstanding that
the  results of plaintiff's HIV test were known on June  17,  the
results  were not charted until late in the day of June 18,  1987
at  about  the  time  or just after plaintiff's  discharge.  Both
physicians understood that charting of the results would lead  to
widespread  disclosure of results. The decision as to timing  was
made with a clear knowledge that the results of the charting were
entirely   foreseeable.  Unfortunately,  the  prophesy   of   the
knowledge of the test results was fulfilled, and once the results
were charted, the die was cast According to Lee, both he and  the
infectious  disease specialist made an additional  determination-
not  to  notify Doody of the test results. All parties could  and
did predict a foreseeable result that was obvious.

[8-10] The medical center's disregard for the importance of
preserving the confidentiality of plaintiff's patient medical
records was evident even before the charting of the HIV test
results. A review of plaintiff's hospital chart reveals not only
the HIV test results, but the results of the bronchoscopy-PCP-
which all concede was a definitive diagnosis of AIDS.  While the
medical center argues that the decision regarding 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 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 insure that
confidentiality. Failure to take such steps is negligence. See
Martin v. Bengue, Inc., 25 N.J 359,136 A.2d 626 (1957); Menth v.
Breeze Corp. Inc., 4 NJ 428, 73 A.2d 183 (1950); Avedisian v.
Admiral Realty Corp., 63 NJSuper. 129, 164 A.2d 188
(App.Div.1960); Andreoli v. Natural Gas Co., 57 NJSuper. 356,154
A.2d 726 (App.Div.1959); Glaser v. Hackensack Water Co., 49 N.J
Super. 591,141 A.2d 117 (App.Div. 1958); Lutz v. Westwood Transp.
Co. 31 N.J Super. 285, 106 A.2d 329 (App.Div.1954), certif den.
16 NJ 205,108 A.2d 120 (1954).  The argument that such
information may have been transmitted by employees acting beyond
the scope of their employment is not persuasive.  The requirement
of confidentiality is to protect the patient. This was not a
patient hospitalized for a trivial or common-place malady.
Insuring confidentiality becomes a matter of prime concern.  The
failure to recognize the potential for employee breach of
confidentiality provides no defense. See National Premium Budget
Plan Corp. v. National Fire Ins. Co., 97 N.J.Super. 149, 234 A.2d
683 (Law Div. 1967), aff'd 106 NJSuper. 238, 254 A.2d 819
(App.Div.1969), certif. den. 54 NJ 515, 257 A.2d 113 (1969); and
see Restatement, Torts  449 (1965), which states:

If the likelihood that a third person may act in a particular
manner is the hazard or one of the hazards which makes the actor
negligent, such an act whether innocent, negligent, intentionally
tortious, or criminal does not prevent the actor from being
liable for harm caused thereby.  [at 223, 234 A.2d 683]

Insuring confidentiality even by medical center employees
required more, in the present case, than simply instructing em
ployees that medical records are confidential. The charts are
kept under the control of the medical center with full knowledge
of the accessibility of such charts to virtually all medical
center personnel whether authorized or not.  Little, if any,
action was taken to establish any policy or procedure for dealing
with a chart such as plaintiff's.

In Doe v. Barrington, supra, Judge Brotman discussed the privacy
basis for confidentiality of an AIDS diagnosis.

The sensitive nature of medical information about AIDS makes a
compelling argument for keeping this information confidential.
Society's moral judgments about the high-risk activities
associated with the disease, including sexual relations and drug
use, make the information of the most personal kind. Also, the
privacy interest in one's exposure to the AIDS virus is even
greater than one's privacy interest in ordinary medical records
because of the stigma that attaches with the disease. The
potential for harm in the event of a nonconsensual disclosure is
substantial. ... [footnote 12] [729 F.Supp. at 884]

12.  The "potential for harm" is demonstrated not only by the
impact on plaintiff, but by numerous similar circumstances caused
by a hysterical public reaction to AIDS. Judge Brotman cited a
few examples: removal of a teacher with AIDS from teaching
duties; refusal to rent an apartment to male homosexuals for fear
of AIDS; firebombing of the home of hemophiliac children who
tested positive for AIDS; refusal by doctors and health care
workers to treat people with or suspected of having AIDS; refusal
of co-workers of an AIDS victim to use a truck used by the
victim; filing of a charge of attempted murder against an AIDS
victim who spat at police; requiring an AIDS victim to wear a
mask in a courtroom; denial to children with AIDS of access to
schools; threatening to evict a physician who treated
homosexuals:  boycotting of a public school after a child with
AIDS was allowed to attend; firing of homosexuals who displayed
cold symptoms or rashes; refusal of paramedics to treat a heart
attack victim for fear he had AIDS; refusal by police to drive an
AIDS victim to the hospital; police demands for rubber masks and
gloves when dealing with gays; refusal to hire Haitians; and
urging of funeral directors not to embalm the bodies of AIDS
victims.  Doe v. Barrington, supra 729 F.Supp. at 384, n. 5;
citations omitted.

[11,12]  Because the stakes are so high in the case of a
physician being treated at his own hospital, it is imperative
that the hospital take reasonable steps to insure the
confidentiality of not only an HIV test result, but a diagnosis
which is conclusive of AIDS, such as PCP.  These precautions may
include a securing of the chart, with access only to those HCWs
demonstrating to designated record-keepers a bona-fide need to
know, or utilizing sequestration procedures for those portions of
the record containing such information. While a designation in a
chart of sequestered information such as a diagnosis or test
result may lead to speculation or rumor among persons not having
access to the chart, this speculation is an acceptable cost to
prevent free access to a chart where real information improperly
disseminated will cause untold harm.  This court recognizes that
in some circumstances, such as rounds at a teaching hospital,
exposure to a patient's records must be greater than to solely
physicians or students directly involved in the patient's care.
It is incumbent upon the hospital to impress upon these
physicians or students the significance of maintaining the confi
dentiality of patient records.

The issue of the confidentiality of hospital records of AIDS-
positive physicians was addressed in X v. Y, 2 All E.R. 649
(Q.B.1987).  In X v. Y, plaintiff, a British health authority,
sought an injunction against defendant, a newspaper reporter,
from publishing information about two physicians who were AIDS-
positive and continuing in practice.  In balancing the interests
of a free press with the rights of a patient, the court held that
the public interest in preserving the confidentiality of these
hospital records outweighed the public interest in a free press.

On the one hand, there are the public interests in having a free
press and an informed public debate; on the other, it is in the
public interest that actual or potential AIDS sufferers should be
able to resort to hospitals without fear of this being revealed,
that those owing duties of confidence in their employment should
be loyal and should not disclose confidential matters and that,
prima facie, no one should be allowed to use information
extracted in breach of confidence from hospital records even if
disclosure of the particular information may not give rise to
immediately apparent harm. [Id. at 660]

The court went on to note:

I keep in the forefront of my mind the very important public
interest in freedom of the press.  And I accept that there is
some public interest in knowing that which the defendants seek to
publish (in whichever version).  But in my judgment those public
interests are substantially outweighed when measured against the
public interests in relation to loyalty and confidentiality both
generally and with particular reference to AIDS patients'
hospital records.... The records of hospital patients,
particularly those suffering from this appalling condition
should, in my judgment, be as confidential as the courts can
properly keep them in order that the plaintiffs may be free from
suspicion that they are harbouring disloyal employees'....  [Id.
at 661]

The present case involves no competing interest, such as a free
press. 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.  And common sense told all that this would happen.

This court holds that the failure of the medical center and Lee
as director of the department of laboratories, who were together
responsible for developing the misstated informed consent form,
the counselling procedure and implementation of the charting
protocol, to take reasonable steps to maintain the
confidentiality of plaintiff's medical records, while plaintiff
was a patient, was a breach of the medical center's duty and
obligation to keep such records confidential. The medical center
is liable for damages caused by this breach.



IV.

[13]  Plaintiff, as a physician, asserts a cause of action under
the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-
4.1, [footnote 13] based on the restriction and ultimate curtail
ment of plaintiff's surgical privileges at the medical center.
[footnote 14]

[14, 15]  New Jersey prohibits unlawful discrimination, or any
unlawful employment practice, against a person in a place of
public accommodation on the basis that that person is handi
capped. N.J.S.A. 10:5-4.1.  A review of the definitional sections
of the LAD bring both the medical center and plaintiff within its
scope.  A hospital such as the medical center falls within the
definition of a place of public accommodation. N.J.S.A. 10:55(l).
Plaintiff has abandoned his argument that he was an "employee" of
the medical center. Plaintiff relies on N.J.S.A. 10:512(l), which
provides that it shall be unlawful discrimination:

For any person to refuse to buy from, sell to, lease from or to,
license, contract with or trade with, provide goods, services or
information to, or otherwise do business with any other person on
the basis of the race, creed. color, national origin, ancestry,
age, sex, marital status, liability for service in the Armed
Forces of the United States, or nationality of such other
person.... [Emphasis supplied]

The medical center argues that the relationship of a surgeon to a
hospital or an operating room is not one which falls under the
privilege of the LAD.

In determining the applicability of the LAD to plaintiff, certain
basic policy considerations must be stated. New Jersey has
historically been "in the vanguard in the fight to eradicate the
cancer of unlawful discrimination of all types from our society."
Peper v. Princeton University, 77 N.J 55, 80, 389 A.2d 465
(1978).  The LAD is to be liberally interpreted with due regard
for "its remedial nature" and "humanitarian concerns." Panettieri
v. C.V. Hill Refrig., 159 N.J.Super. 472, 483, 388 A.2d 630
(App.Div.1978).

The medical center asserts that not only is there no employer-
employee relationship between the surgeon and the hospital, but
there is insufficient evidence of "control" over the surgeon to
warrant the application of the broad provisions of N.J.S.A.
10:512.  The proofs presented indicate otherwise.  The surgeon
must be approved and accepted by the medical and dental staff and
ultimately the board of trustees.  In addition, the surgeon is
subject to the by-laws of the medical center and its regulatory
authority over those who practice there. The surgeon is subject
to peer review and other methods of control over his or her
practice. While there is not the relationship of employer -
employee, the providing of a fully equipped, fully staffed,
regulated and controlled operating room to a surgeon whose
practice in the medical facility has been passed on and approved
by the medical facility is sufficient to bring that surgeon
within the scope of N.J.S.A. 10:512. See Desai v. St. Barnabas
Medical Center, 103 NJ 79, 510 A.2d 662 (1986); Berman v. Valley
Hosp., 103 NJ 100, 510 A.2d 673 (1986); Belmar v. Cipolla, 96 NJ
199, 475 A.2d 533 (1984).

[16]  The statute only applies, however, if plaintiff is deter
mined to be handicapped. N.J.S.A. 10:54.1. In Poff v. Caro, 228
NJSuper. 370, 549 A.2d 900 (Law Div.1987), the Law Division
determined, in the context of a refusal to rent to homosexuals,
that "a person suffering from AIDS clearly has a severe handicap
within the meaning of the Law Against Discrimination." Id. at
376, 549 A.2d 900.

Courts in other jurisdictions have universally held that AIDS is
a handicap within the meaning of laws prohibiting handicap
discrimination.  Both federal trial and courts of appeal have
held AIDS to be a handicap protected under the Rehabilitation Act
of 1973, 29 USCA  794, which prohibits discrimination against the
handicapped by recipients of federal funds. See, e.g., Chalk v.
United States District Court, 840 F2d 701 (9 Cir.1988); Doe v.
Dolton Elementary School Dist. No. 148, 694 F.Supp. 440
(N.D.Ill.1988); Ray v. School Dist. of DeSoto County, 666 FSupp.
1524 (M.D.Fla.1987).  Likewise, various state courts have held
AIDS to be a qualified handicap under their respective
discrimination laws. See, e.g., Cronan v. New England Tel. Co.,
41 FEP Cases 1273 (Mass.Super.Ct.1986). Cf School Bd. of Nassau
Cty, Fla. v. Arline, 480 U.S. 273,107 S.Ct. 1123, 94 L.Ed.2d 307
(1987).

Plaintiff, as a surgeon suffering from AIDS, was protected by the
LAD. [footnote 15]

Plaintiff's claim requires an examination of the restrictions
placed on the exercise of his surgical privileges from June 1987,
until his death on July 2, 1989. The restrictions took different
forms during that period:

a) initially Doody cancelled all of plaintiff's surgery, pending
review by the president of the medical and dental staff and
chairman of the department of surgery;

b) thereafter, plaintiff's patients were required to sign an
informed consent form, noting that plaintiff was HIV positive;
and

c) finally, the medical center adopted a "policy" agreed to by
the medical and dental staff and the trustees, limiting "any
activity" including surgical procedures "that creates a risk of
transmission of the disease to others." The adoption of this
policy did not eliminate the use of the informed consent form.

The Supreme Court has set forth several standards which must be
considered by a court reviewing hospital actions and policies. In
Desai v. St. Barnabas Medical Center, supra, the Supreme Court
noted that if a hospital policy decision reasonably serves an
"evident public health purpose," it will be sustained
notwithstanding that the ultimate effect of the policy may be
discriminatory. 103 N.J at 91, 510 A.2d 662. Notwithstanding the
narrow standard of review articulated in Desai, the Supreme Court
in Nanavati v. Burdette Tomlin Mem. Hosp., 107 N.J. 240, 526 A.2d
697 (1987), emphasized the importance of scrutinizing such policy
when its effect is the revocation of staff privileges.

The test for judicial review of such a decision is whether it is
supported by 'sufficient reliable evidence, even though of a
hearsay nature, to justify the result'...

Underlying the more relaxed standard is our growing awareness
that courts should allow hospitals, as long as they proceed
fairly, to run their own business.

That sense is tempered by the recognition that doctors need staff
privileges to serve their patients, and that the public interest
requires that hospitals treat doctors fairly in making decisions
about those privileges. Notwithstanding our more indulgent review
of hospital decisions, a decision denying or revoking staff
privileges merits a closer look than a decision setting the
standard for the determination of those privileges.  [Id. at
249250, 526 A.2d 697, citations omitted]

While neither Nanavati nor Desai dealt with rights established by
the LAD, certainly the cautions expressed in Nanavati become
paramount considerations in balancing the critical rights of the
hospital and the equally important rights of a doctor alleging
discriminatory conduct  The medical center concedes that the
action taken against plaintiff was a result of his AIDS diagnosis
and the concern for the hospital and patients that the handicap
generated.

[17]  In the present case, by conceding that the only reason for
suspending or terminating privileges is the positive AIDS
diagnosis, a handicap protected by the statute, the medical
center cannot dispute that plaintiff has established a prima
facie case of discrimination under the LAD.  Clowes v. Terminex
Int'l, Inc., 109 NJ 575, 597, 538 A.2d 794 (1988); Andersen v.
Exxon Corp., 89 NJ 483, 492, 446 A.2d 486 (1982).

[18, 19]  By way of defense, the medical center asserts that the
circumstances of plaintiff's condition and the effect thereof is
sufficient basis for restricting plaintiff's privileges. In deter-
mining whether a surgeon with AIDS may legitimately be restricted
in his surgical privileges under the LAD, the test to be applied
is whether the continuation of surgical privileges, which
necessarily encompasses invasive procedures, poses a "reasonable
probability of substantial harm" to others, including co-
employees and, more importantly, patients.  Jansen v. Food Circus
Supermarkets, 110 NJ 363, 374-375, 541 A.2d 682 (1988); N.J.A.C.
13:13-2.8.  There must be a "materially enhanced risk of serious
injury."  Jansen v. Food Circus Supermarkets, supra, 110 NJ at
376, 541 A.2d 682.  And, critical to this case, there must be a
distinction between the risk of an incident taking place and the
risk of injury from such incident. In the present case both
parties agree that the risk of incident, i.e., transmission of
the HIV virus from physician to patient, is small, but that the
risk of injury from such transmission is high, i.e., death.

In asserting a defense based on safety of patients and hospital
personnel, the medical center assumes the burden of
"establish[ing] with a reasonable degree of certainty that it
reasonably arrived at the opinion that the employee's handicap
presented a materially enhanced risk of substantial harm in the
workplace."  Id. at 383, 541 A.2d 682.

At the time of plaintiff's diagnosis, little was known about the
potential transmission of HIV from surgeon to patient. While no
"reported cases" were known to the experts-Selwyn or Day-neither
disputed that there was such a risk. Selwyn interpreted the risk
to be virtually nonexistent statistically; Day urged that the
risk was real and greater than that revealed by the then-existing
statistics. Both experts agreed that once HIV is transmitted and
the patient contracted AIDS, the prognosis is death.

The medical center made painstaking inquiries to determine a
proper result. The medical and dental staff, board of trustees,
biomedical ethics committee, joint committees and various other
groups all convened to discuss and debate the appropriate action
to be taken.  A review of the minutes of the various committees
meeting on the subject reveals point and counterpoint as to all
critical issues. Harsh debate ensued between the medical and
dental staff and the medical center administration. Studies were
produced from the CDC, epidemiologists and medical ethicists. The
issue was fully aired. [footnote 16]

[20]  The ultimate resolution reached by the medical center
restricting invasive procedures where there is "any risk to the
patient," coupled with informed consent, implicates serious
policy considerations which must be explored.  It is axiomatic
that physicians performing invasive procedures should not
knowingly place a patient at risk because of the physician's
physical condition.  Gostin, op. cit., supra at 34.  The policy
adopted by the medical center barring "any procedures that pose
any risk of virus transmission to the patient" appears to
preclude, on its face, the necessity of an informed consent form;
if there is "any risk," the procedure cannot be performed. The
problem created by the "any risk" standard is best evidenced by
the facts of this case. When Doody made his initial decision to
cancel plaintiff's scheduled surgical procedures, he did so over
the objection of both the president of the medical and dental
staff as well as the chairman of the department of surgery.  In
fact, the chairman went so far as to write:

... I have done some reading, research into this the past several
months. From all I can find a doctor, surgeon, with AIDS cannot
give this to his patient as long as usual precautions are taken
... while operating. I believe he should be allowed to carry on
as long as his general health status allows. I will admit him in
surgery when possible if he desires.

Reasonable persons professing knowledge of the subject matter may
differ as to whether there is "any" risk involved in an invasive
surgical procedure by a surgeon carrying a disease that will lead
to his death and, if transmitted during the surgical procedure,
to the death of the patient. This court is well aware of the
admonition expressed in Desai, as well as the concern expressed
by Chief Justice Hughes in In re Quinlan, 70 NJ 10, 355 A.2d 647
(1976), when he stated for the Court:

Doctors *** to treat a patient, must deal with medical tradition
and past case histories. They must be guided by what they do
know. The extent of their training, their experience,
consultation with other physicians. must guide their decision-
making processes in providing care to their patient. The nature,
extent and duration of care by societal standards is the
responsibility of a physician.  The morality and conscience of
our society places this responsibility in the hands of the
physician. What justification is there to remove it from the
control of the medical profession and place it in the hands of
the courts?

Such notions as to the distribution of responsibility, heretofore
generally entertained, should however neither impede this Court
in deciding matters clearly justiciable nor preclude a
reexamination by the Court as to underlying human values and
rights. Determinations as to these must, in the ultimate, be
responsive not only to the concepts of medicine but also to the
common moral judgment of the community at large. In the latter
respect the Court has a non-delegable judicial responsibility.
Id. at 44, 355 A.2d 647; citations omitted]

This court, too, must be concerned that the medical center
decision-makers, while no doubt acting in good faith in the
decision-making process, are acting with the knowledge that their
decisions may well affect their ultimate ability to practice
their chosen profession.

Nevertheless, there must be a way to free physicians. in the
pursuit of their healing vocation, from possible contamination by
self-interest or self-protection concerns which would inhibit
their independent medical judgments for the well-being of their
... patients. [Id. at 49, 355 A.2d 647.]

There are principles of law that guard against the concern for
self-interest, by including in the decision-making process the
most critical participant -- the patient. The doctrine of
informed consent, as an adjunct to the adopted medical center
"any risk" policy, provides the necessary element of patient
control which is lacking from the policy standing alone.

[21, 22]  Before a physician may perform a surgical or invasive
procedure upon a patient, he must obtain the patient's informed
consent.

[Informed consent] is essentially a negligence concept,
predicated on the duty of a physician to disclose to a patient
such information as will enable the patient to make an evaluation
of the nature of the treatment and of any attendant substantial
risks, as well as of available options in the form of alternative
therapies. See in re Conroy, 98 NJ 321, 346 [486 A.2d 1209]
(1985); Perna v. Pirozzi, supra, 92 NJ [446] at 459 [457 A.2d
431] (1983); Canterbury v. Spence, supra 464 F2d [772] at 780
[(C.A.D.C.1972)]; Kaplan v. Haines, supra. 96 N.J.Super. [242] at
255-258 [232 A.2d 840] [(1967)].  [Largey v. Rothman, supra, 110
NJ at 204 at 208, 540 A.2d 504 (1988)]

The physician exposing the patient to a course of treatment has a
duty to explain, in terms understandable to the patient, what the
physician proposes to do. The purpose of this legal requirement
is to protect each person's right to self-determination in
matters of medical treatment. See In re Farrell, 108 NJ 335, 347,
529 A.2d 404 (1987). The physician's duty is to explain, in words
the patient can understand, that medical information and those
risks which are material.  Medical information or a risk of a
medical procedure is material when a reasonable patient would be
likely to attach significance to it in deciding whether or not to
submit to the treatment.

[23] Taking into account what the physician knows or should know
to be the patient's informational needs, the physician must make
reasonable disclosure of the information and those risks which a
reasonably prudent patient would consider material or significant
in making the decision about what course of treatment, if any, to
accept. Such information would generally include a description of
the patient's physical condition, the purposes and advantages of
the proposed surgery, the material risks of the proposed surgery,
and the material risks if such surgery is not provided. In
addition, the physician should discuss all available options or
alternatives and their advantages and risks.  Largey v. Rothman,
supra, 110 N.J. at 211, 540 A.2d 504.

[24]  Plaintiff argues: 1) the risk of transmission of HIV from
surgeon to patient is too remote to require informed consent, and
2) the law of informed consent does not require disclosure of the
condition of the surgeon. [footnote 17]

[25]  Both parties focus on the risk of transmission and results
therefrom in applying the two standards raised in plaintiff's
claim under the LAD. The Jansen standard states that the risk
must be one which will create a "reasonable probability of
substantial harm," and the Largey standard requires disclosure of
a "material risk" or one to which a reasonable patient would
likely attach significance in determining whether to proceed with
the proposed procedure. It is the court's view that the risk of
transmission is not the sole risk involved. The risk of a
surgical accident, i.e., a needlestick or scalpel cut, during
surgery performed by an HIV-positive surgeon, may subject a
previously uninfected patient to months or even years of
continual HIV testing. Both of these risks are sufficient to meet
the Jansen standard of "probability of harm" and the Largey
standard requiring disclosure.

[26]  Both Selwyn and Day agreed that the statistical risk of
transmission from health care worker to patient is small -- less
than one-half of one percent. At the time of trial, there were no
reported cases of transmission. See n. 9, supra at 630, 592 A.2d
at 1267.  But the statistical analysis is flawed.  Gostin noted
the following:

There has been no scrutiny of transmission of HIV from physicians
to patients, and there is no recorded case where it has occurred.
This is not surprising since there has been no systematic attempt
to discover which physicians are HIV positive.  [footnote 18 ]
But there has been careful examination of transmission from
patient to health care worker, and some indication of the level
of risk in both directions can be ascertained. The possibility of
transmission in health care settings has been demonstrated by
approximately sixteen cases where health care workers
seroconverted from occupational exposure to HIV ....

Physicians performing seriously invasive procedures, such as
surgeons, have a potential to cut or puncture their skin with
sharp surgical instruments, needles, or bone fragments.  Studies
indicate that a surgeon will cut a glove in approximately one out
of every four cases, and probably sustain a significant skin cut
in one out of every forty cases.  Given these data, it has been
calculated that the risk of contracting HIV in a single surgical
operation on an HIV-infected patient is remote -- in the range of
1/130,000 to 1/4,500.  [footnotes omitted]

It is impossible accurately to calculate the level of risk of HIV
transmission from surgeon to patient  Surgeons who cut or
puncture themselves do not necessarily expose the patient to
their blood, and even if they do the volume is extremely small.
A small inoculum of contaminated blood is unlikely to transmit
the virus. This suggests that the risk of infection from surgeon
to patient is much lower than in the opposite direction.
Nonetheless, the fact that the surgeon is in significant contact
with the patient's blood and organs, together with the high rate
of torn gloves, makes it reasonable to assume that the risk runs
in both directions, as is the case with the hepatitis B virus.
The cumulative risk to surgical patients, arguably, is higher.
While an HIV-infected patient is likely to have relatively few
seriously invasive procedures, the infected surgeon, even if the
virus drastically shortens his surgical career, can be expected
to perform numerous operations. Assuming that the surgical
patient's risk is exceedingly low (1/130,000), the risk that one
of his patients will contract HIV becomes more realistic the more
operations he performs, 1/1,300 (assuming 100 operations) or
1/126 (assuming 500 operations).  Patients, of course, cannot
expect a wholly risk-free environment in a hospital. But there
does come a point where the risk of a detrimental outcome becomes
sufficiently real that it is prudent for the profession to
establish guidelines. [Gostin, op. cit., supra at 33]

While the debate will rage long into the future as to the
quantifiable risk of HIV transmission from doctor to patient,
there is little disagreement that a risk of transmission, however
small, does exist.  This risk may be reduced by the use of
universal precautions, such as double gloving and the use of
goggles and other similar devices.

In quantifying the risk, one must consider not only statistical
data, but the nature of the procedure being performed.  Plaintiff
was a surgeon who specialized in surgery performed in the ear and
mouth cavities.  As Day indicated, much of plaintiff's surgery
involved contact with the mucous membrane-an area particularly
susceptible to transmission of HIV should the surgeon incur a
surgical accident involving the potential for exchange of blood.

In addition, the quantifiable risk of transmission is not dis
positive of either the "materiality" or "risk of harm" issue. As
Day testified, the risk of a surgical accident, such as a scalpel
cut or needle stick, where there is exposure to the HIV-positive
surgeon's blood will cause a patient to be exposed to the testing
required by CDC recommendation no. 5, supra, notes 7 and 8. This
includes HIV testing over an extended period with the attendant
anxiety of waiting for test results, and the possible alterations
to life style and child-bearing during the testing period, even
if those results ultimately are negative. The risk of surgical
accidents was quantified by Day and Selwyn as exceeding five
percent, although, as set forth above, Gostin estimates glove
cuts at 25% and significant skin cuts at 2 1/2 percent. Gostin,
op. cit., supra at 33. In assessing the "materiality of risk,"
this court concludes that the risk of accident and implications
thereof would be a legitimate concern to the surgical patient,
warranting disclosure of this risk in the informed consent
setting.  It is inconsistent with the underlying policy
considerations expressed in Largey to suggest that the patient
should be informed after the fact of the need for HIV testing and
surveillance.

In balancing quantifiable risk with the necessity of informed
consent, one must recognize the strong commitment of the New
Jersey courts to the concept of a fully informed patient.
Niemiera v. Schneider, 114 NJ 550, 555 A.2d 1112 (1989); Largey
v. Rothman, supra.  Plaintiff argues that the use of the in-
formed consent form is tantamount to a de facto termination of
surgical privileges.  Plaintiff further urges that patient reac
tion is likely to be based more on public hysteria than on a
studied assessment of the actual risk involved. The answer to
these arguments is twofold.  First, it is the duty of the surgeon
utilizing the informed consent procedure to explain to the
patient the real risk involved.  If the patient's fear is without
basis, it is likewise the duty of the surgeon to allay that fear.
This court recognizes that the burden imposed on the surgeon may
not be surmountable absent further education of both the public
and the medical community about the realities of HIV and AIDS.
Second, the difficulties created by the public reaction to AIDS
cannot deprive the patient of making the ultimate decision where
the ultimate risk is so significant The last word has not been
spoken on the issue of transmission of HIV and AIDS. Facts
accepted at one point in time are no longer accurate as more is
learned about this disease and its transmission.  See n. 9 supra.

Plaintiff further argues that there is no requirement under the
doctrine of informed consent that a surgeon's physical condition
be revealed as a risk of the surgery itself.  The informed
consent cases are not so narrow as to support that argument.  In
Largey v. Rothman, supra, the court spoke of not only an
evaluation of the nature of the treatment, but of "any attendant
substantial risks." [footnote 19] 110 NJ at 208, 540 A.2d 504.
See also Kaplan v. Haines, supra, 96 NJSuper. at 255-258, 232
A.2d 840. As noted earlier, the risks can foreseeably include a
needlestick or scalpel cut and, even with universal precautions
can result in an exchange of the surgeon's blood.

Plaintiff urges that these issues should be dealt with on a case-
by-case basis, wherein the hospital or medical staff monitors an
HIV-positive surgeon and makes a determination as to the
surgeon's ability to perform a particular invasive procedure.

While this approach may be an appropriate starting point, it can
not be dispositive of the issue.  Plaintiff's position fails to
account for "any risk" and, more important, fails to consider the
patient's input into the decision-making process. The position
plaintiff seeks to implement is replete with the "anachronistic
paternalism" rejected in both Canterbury v. Spence, supra, and by
the Supreme Court in Largey v. Rothman, supra.

Plaintiff's assertion that the risk of transmission is so low as
to preclude the necessity of restriction on surgical practice or
a requirement of informed consent prompts perhaps a different
view of the issue.  Dr. Gordon G. Keyes suggests:

Instead of anguishing over the precise probability of an HIV-
positive provider spreading AIDS to a patient, a more sensible
approach weighs the risk posed by HIV positive provider against
the value of having these same providers performing invasive
health care services. [Keyes, "Health Care Professionals with
AIDS: The Risk of Transmission Balanced Against the Interests of
Professionals and Institutions," 16 Journal of College and
University Law 589, 603 (1990)]

In making this analysis, Keyes suggests utilizing the risk-
benefit analysis found in Restatement, Torts 2d,  293(a)-(c)
(1965).  Under Keyes' theory, there are three elements to be
considered:

(a) The social value which the law attaches to the interest which
is to be advanced or protected by the conduct....

(b) The extent of the chance that this interest will be advanced
or protected by the particular course of conduct....

(c) The extent of the chance that such interest can be adequately
advanced or protected by another and less dangerous course of
conduct [Keyes, op. cit., supra at 604, n. 114]

The author concludes as follows:

The following criteria determines the magnitude of the risk to
the patient:

a. The social value which the law attaches to the interests which
are imperiled. The law places a very high value on a patient's
safety and well-being.

b. The extent of the chance that the actor's conduct will cause
an invasion of any interest of the other.... It is not possible
to precisely quantify the chance of spread of HIV to a patient.
In general terms, the probability is small but real.

c. The extent of the harm once a patient becomes HIV positive,
the likely outcome is death.

Of course risk must be balanced against the utility of a health
care provider performing invasive procedures.  The Restatement
provides an analytical framework for this as well.

For negligence purposes, the utility of the conduct is related
to:

(a) The social value which the law attaches to the interest which
is to be advanced or protected by the conduct Society and the law
have a significant interest in promoting access to medical care
....  While society must protect the availability of vital
services, there is no need to protect the services of any one
provider.  Generally, there will be many noninfected providers to
replace those who have been restricted from performing invasive
procedures.

(b) The extent of the chance that this interest will be advanced
or protected by the particular course of conduct Society's
interest in promoting acquisition of health care can only occur
if providers see patients.  Since only a small percentage of all
providers will be excluded from performing only one aspect of
health care, restrictions due to HIV positivity will only
interfere with the provision of a very small fraction of the
total health care services. All of these services can be
adequately provided by non-infected practitioners. [Id. at 603
604, n. 114; citations omitted]

Summarizing Keyes' broader policy considerations, the re
strictions on HIV-positive physicians from providing services,
where there is a chance of transmittal from injury and transfer
of blood spillage into a surgical site, would have a limited
effect on practitioners; the HIV-positive physicians could still
practice medicine although precluded from performing invasive
procedures.  Lastly, the ethical relationship of doctor to
patient would require such a restriction on invasive procedures.

Health care providers and institutions should consider ethical
aspects of the doctor-patient relationship in examining the risk
posed by health care providers infected with HIV.  The patient
and doctor occupy unequal positions in the relationship. The
doctor is trained to recognize. diagnose, and avoid contracting
the patient's disease. The doctor stands in a position of trust-a
fiduciary position-in relation to the patient. A small but
palpable risk of transmitting a lethal disease to the patient
gives the doctor an ethical responsibility to perform only
procedures that pose no risk of transmission.

The patient, on the other hand, has no corresponding ethical duty
to the doctor. The patient is neither trained nor expected to
ascertain the provider's health status. While secretive patients
may transmit their diseases to unwary doctors, doctors are
responsible for both their own health and the health of their
patients.  [Id. at 605; footnotes omitted]

Professor Gostin has also recognized the availability of alter
native medical services as a relevant consideration in the area
of informed consent and the larger issue of performance of
invasive procedures by HIV-positive physicians.  While not
adopting Keyes' analysis of the issue, Gostin notes:

Courts, therefore, require the physician to provide all
information that a reasonable patient would find relevant to make
an informed decision on whether to undergo a medical procedure.
Risks that are relevant or "material" depend upon their severity,
the probability that they would occur, and the circumstances
under which they would be endured.  As the severity of a
potential harm becomes greater the need to disclose improbable
risks grows, though courts have yet to assign a threshold for the
probability of a grave harm  beyond which it must be disclosed.

A reasonably prudent patient would find information that his
physician is infected with HIV material to his decision to
consent to a seriously invasive procedure because the potential
harm is severe and the risk, while low, is not negligible.
Moreover, he can avoid the risk entirely without any adverse
consequences for his health: By choosing another equally
competent physician (where available) he can obtain all the
therapeutic benefit without the risk of contracting HIV from his
physician. The patient, then, can demonstrate not only that the
information is material to his decision, but that he would have
made a different decision had he been given the facts. [Gostin,
op. cit., supra at 3334; emphasis supplied]

[27] The obligation of a surgeon performing invasive procedures,
such as plaintiff, to reveal his AIDS condition, is one which
requires a weighing of plaintiff's rights against the patient's
rights. New Jersey's strong policy supporting patient rights,
weighed against plaintiff's individual right to perform an
invasive procedure as a part of the practice of his profession,
requires the conclusion that the patient's rights must prevail.
At a minimum, the physician must withdraw from performing any
invasive procedure which would pose a risk to the patient.  Where
the ultimate harm is death, even the presence of a low risk of
transmission justifies the adoption of a policy which precludes
invasive procedures when there is "any" risk of transmission.  In
the present case, the debate raged as to whether there was "any"
risk of transmission, and the informed consent procedure was left
in place. If there is to be an ultimate arbiter of whether the
patient is to be treated invasively by an AIDS-positive surgeon,
the arbiter will be the fully-informed patient.  The ultimate
risk to the patient is so absolute-so devastating-that it is
untenable to argue against informed consent combined with a
restriction on procedures which present "any risk" to the
patient. [footnote 20]

In assessing the medical center's obligation under the LAD, it is
the court's view that the burden under Jansen has been met, and
there was a "reasonable probability of substantial harm" if
plaintiff continued to perform invasive procedures. Plaintiff is
not entitled to recovery under this statute. The medical center
acted properly in initially suspending plaintiff's surgical privi
leges, thereafter imposing a requirement of informed consent and
ultimately barring him from performing surgery. These decisions
were not made spontaneously or without thought. One need only
review the minutes of meeting after meeting where the debate
raged and the various competing interests-the medical and dental
staff and board-expressed their views. The seeking of input from
medical ethicists and attorneys knowledgeable in this area belies
any suggestion of prejudgment or arbitrariness on the part of the
medical center. The result, while harsh to plaintiff, represents
a reasoned and informed response to the problem.



V.

Plaintiff also claims damages as a result of tortious interfer
ence with economic relations.  These claims are based on the
medical center's suspending and restricting plaintiff's surgical
privileges.  These claims are derivative.  Having determined that
the actions of the medical center and Doody were proper, this
cause of action must fail. To the extent that this cause of
action is based on a breach of confidentiality, plaintiff has
prevailed on that cause of action and will be entitled to damages
therefore.



VI.

A judgment as to liability is granted in favor of plaintiff
against defendant medical center and defendant Lee on counts 1,
2, 3 and 6 of the complaint. A judgment is entered in favor of
defendant medical center and defendant Doody as to counts 4, 5,
and 7, no cause for action.





FOOTNOTES

l.   Although plaintiff in this matter is the Estate of William
H. Behringer, all references to plaintiff will be to William
Behringer.

2.   This opinion deals with the issue of liability only.
Damages will be dealt with after further briefing by the parties
on issues raised by this opinion. The issue of damages will be
dealt with by a separate opinion.

3.   The implementing provisions of the policy adopted by the
medical and dental staff provide as follows:

A known HIV seropositive member of the Medical and Dental Staff
may be permitted to continue to admit and care for his patients
in the hospital, but shall immediately suspend the performance of
all surgical procedures, including surgical assisting. In
addition, he shall not perform any procedures that involve
piercing the integument, including IV's and phlebotomy. The
member of the Medical and Dental Staff may request a review of
privileges by his Department Chairman. The staff member's
Department Chairman may recredential the member of the Medical
and Dental staff with regard to allowing procedures in accordance
with the policy for HIV seropositive Health Care Workers approved
by the Medical and Dental Staff and Board of Trustees.

4.   Hussain, Risk to Surgeons: A Survey of Accidental Injuries
During Operations," 75 Brit. J. of Surgery 314 (1988).

5.   But see Largey v. Rothman, 110 N.J. 204, 540 A.2d 504 (1958)
discussed, in Ira at 651. 592 A.2d at 1279.

6.   plaintiff objected to the admissibility and consideration of
Day's opinion. The objection was premised on the conclusion that
Day's views were outside of the "mainstream of accepted medical
views." In addition, plaintiff argued that Day lacked the
qualifications to offer opinions on the issue of AIDS
transmission and other relevant matters because of her lack of
training as an epidemiologist. See Rubanick v. Witco Chemical
Corp., 225 N.J Super. 485. 542 A.2d 975 (law Div.1988), revd 242
N.J.Super. 36, 576 A.2d 4 (App.Div.1990).  appeal pending - NJ. -
(1991).  While their conclusions differed about interpretation of
terms such as 'significant risk," both Selwyn and Day relied on
the same statistical information. The conclusions of the parties
were in dispute, but these conclusions were simply matters of
interpretation of information. Both experts met the threshold
requirement of establishing a factual and scientific basis for
their opinions. Buckelew v. Grossbard 87 NJ 512. 524, 435 A.2d
1150 (1981). While less weight was given to Day's opinion than
that of Selwyn, information about operating-room procedures and
similar matters was considered and given substantial weight.

7.   "Centers for Disease Control, Recommendations for Preventing
Transmission of Infection with Human T-Lymphotropic Virus Type
Ill/Lymphadenopathy-Associated Virus during Invasive Procedures,"
35 Morbidity and Mortality Weekly Rep. 221-223 (1986).

8.   This conclusion reached by Day is supported by the reference
to the Centers for Disease Control's, "Recommendations for
Preventing Transmission of Infection with Human T-Lymphotropic
Virus Type III/Lymphadenopathy-Associated Virus in the
Workplace." 34 Morbidity and Mortality Weekly Rep., 681-686.
69l~95 (1985), noted in recommendation no. 5:

Management of parenteral and mucous membrane exposures of HCWs.

If a HCW has a parenteral (eg., needlestick or cut) or mucous
membrane (eg., splash to the eye or mouth) exposure to blood or
other body fluids, the source patient should be assessed
clinically and epidemiologically to determine the likelihood of
HTLV-III/LAV infection. if the assessment suggests that infection
may exist, the patient should be informed of the incident and
requested' to consent to serologic testing for evidence of HTLV-
III/LAV infection.  If the source patient has AIDS or other
evidence of HTLV-III/LAV infection, declines testing, or has a
positive test, the HCW should be evaluated clinically and
serologically for evidence of HTLV III/LAV infection as soon as
possible after the exposure. and, if seronegative, retested after
6 weeks and on a periodic basis thereafter (eg., 3, 6, and 12
months following exposure) to determine if transmission has
occurred. During this follow-up period, especially the first &12
weeks. when most infected persons are expected to seroconvert.
exposed HCWs should receive counseling about the risk of
infection and follow U.S. Public Health Service (PHS)
recommendations for preventing transmission of AIDS (20, 21).
(Emphasis supplied)

The same procedure applies with equal force to transmission from
health care worker to patient.

Management of parenteral and mucous membrane exposures of
patients.  If a patient has a parenteral or mucous membrane
exposure to blood or other body fluids of a HCW, the patient
should be informed of the incident and the same procedure
outlined above for exposures of HCWs to patients should be
followed for both the source HCW and the potentially exposed
patient. Management of this type of exposure will be addressed in
more detail in the recommendations for HCWs who perform invasive
procedures.  (Id. at 684.]

9.   A court is bound by the state of medical science at the time
of the relevant fact circumstances, not on future speculation.
Cf. Doe v. Barrington, supra, 729 FSupp. at 381; Ray v. school
District of DeSoto County, 666 F.Supp. 1524, 1529 (M.D.Fla.1987).
Subsequent to this trial, a case of transmission from health care
worker to patient was reported.  Centers for Disease Control,
"Possible Transmission of Human Immunodeficiency Virus to a
Patient during an Invasive Dental Procedure," 39 Morbidity and
Mortality Weekly Rep. 489 (1990); Mishu, "A Surgeon with AIDS,"
264 J.A.M.A. 467 (1990).

10.  While McIntosh and Tarasoff dealt with the issue of
psychotherapist/patient relations, the significance of the "duty
to warn" is the subject of much discussion and debate among
commentators in the context of both an HIV positive and AIDS -
positive patient.  See, eg., Hermann and Gagliano, "AIDS,
Therapeutic Confidentiality, and Warning Third Parties," 48
MtLRev. 55 (1989); Costin, "Hospitals, Health Care Professionals,
and AIDS: The "Right to Know" the Health Status of Professionals
and Patients," 48 Md.L.Rev. 12 (1989); Comment, "Doctor-Patient
Confidentiality versus Duty to Warn in the Context of AIDS
Patients and Their Partners," 47 Md.L.Rev. 675 (1988); Note,
"Between a Rock and a Hard Place: AIDS and the Conflicting
Physician's Duties of Preventing Disease Transmission and
Safeguarding Confidentiality," 76 Geo.L.J. 169 (1987).

11.  By amendments to N.J.S.A. 26:5C-1 et seq. (which became
effective January 12, 1990), the legislature recently addressed
issues of confidentiality in the context of AIDS. N.J.S.A. 26:501
et seq. provides that a health-care facility must maintain the
confidentiality of the records of patients diagnosed with AIDS or
HIV infection.  Information contained in these records may be
disclosed only upon written authorization of the patient, with
limited exceptions.  NJSA. 26:501(b)(3).  These disclosure
restrictions remain effective after the patient is discharged.

12.  The doctrine of informed consent will be discussed in
greater detail, infra at 642-43, 592 A.2d at 1274.

13.  N.J.S.A. 10:5-4.1 states:

All of the provisions of the act to which this act is a
supplement shall be construed to prohibit any unlawful
discrimination against any person because such person is or has
been at any time handicapped or any unlawful employment practice
against such person, unless the nature and extent of the handicap
reasonably precludes the performance of the particular
employment.

l4.  Plaintiff also asserts a cause of action under the LAD based
on the breach of confidentiality occuring while plaintiff was a
patient. See part III, supra, at 631-32, 592 A.2d at 1268.
Plaintiff claims that because of the stigma attached to his
condition, the medical center and staff treated the information
differently, i.e., if plaintiff had been hospitalized for a less
significant condition, the information would not have been
disseminated in the same manner. Plaintiff has failed to
establish a cause of action on this theory that plaintiff was
treated differently. The different or discriminatory treatment
was not to plaintiff. It was the information about plaintiff's
condition that was treated differently. Plaintiff's medical
records were dealt with in the same manner as any patient's
medical records -- an important factor in supporting plaintiff's
claim for breach of confidentiality.  Plaintiff can not now claim
that such treatment which resulted in wide-spread dissemination
of information forms the basis of a cause of action under NJSA.
10:54 and 4.1.

15.  A peculiar anomaly in this case is that while the disclosure
of plaintiff's medical condition and records is protected by the
laws of confidentiality and privilege, once plaintiff assumes his
role of surgeon, his medical condition must become known so that
the issues of dealing with the "handicapped" surgeon can be
appropriately resolved by both the surgeon and the medical
center. Thus, a whole class of persons became privy to
plaintiff's condition, not as a function of a breach of
confidentiality, but because of their duties and obligations as
persons charged with the responsibility of overseeing and, in
some cases, regulating surgical privileges. This included the
president of the medical and dental staff, chairman of the
surgical department who was informed of the condition by
plaintiff personally, president of the medical center and various
other personnel in the decision-making process. No claim is made
by plaintiff for these disclosures which, under some
circumstances may be subject to a qualified privilege. See, e.g.,
Nanavati v. Burdette Tomlin Memorial Hosp., 107 N.J. 240, 526
A.2d 697 (1987).

16.  By letter of July 13, 1987. plaintiff wrote to the president
of the medical and dental staff and said, inter alia:

I would appreciate it, if you are to hold a meeting to discuss me
and my privileges, that you give me notice and an opportunity to
appear before you to provide you with information which I believe
will be relevant to your consideration.

Doody forwarded a letter to plaintiff on July 22. 1987. stating,
inter alia: [The president of the medical and dental staff] and I
have been trying to arrange a meeting with you, but unfortunately
you have been unable to do so. I am forwarding this information
to you because it is important to your activities at the medical
center, but I still would prefer a meeting.

The letter proceeded to outline the procedures to be followed by
plaintiff. including monitoring and use of the special informed
consent form. The meeting Doody had hoped to arrange never
materialized. While plaintiff has placed in issue the substance
of the medical center's decision, he has not raised any issue
regarding the procedures utilized by the medical center in its
decision-making process.

17.  plaintiff also argues that the concept of informed consent
has changed as Largey v. Rothman, supra, was decided in May 1988.
and the relevant facts took place in June 1987.  Under either the
"prudent patient" standard as expressed in Largey, or the
"reasonable physician" standard set forth in Kaplan v. Haines, 96
NJ. Super. 242, 232 A.2d 840. (App.Div.1967), aff'd 51 N.J. 404,
241 A.2d 235 (1968), the requirement of disclosure would remain
the same.

18.  This case does not involve nor will this court decide the
issue of mandatory screening of physicians for HIV.

19.  In addition to the concept of "risk" as a relevant factor in
the area of informed consent, the "duty to warn" imposed on a
physician provides additional support to conclude that an HIV-
positive surgeon is required to inform a patient of his HIV
positivity before performing an invasive procedure. The
physician's "duty to warn" third parties of dangers created by
the physician's patients is recognized in New Jersey.  McIntosh
v. Milano, supra.  So too, physicians have a duty to report to
the department of health infectious diseases, N.J.S.A. 26:4-15,
including PCP, N.J.A.C. 8:57-1.2. It has been strongly urged that
this "duty to warn" extends to third parties associated with AIDS
victims. See n. 10, supra. If a physician has a duty to warn
third parties of the HIV status of patients who may be, for
example, sexual partners of the patient, it could legitimately be
argued that the risk of transmission would similarly require the
surgeon to warn his own patients.

20.  While the chances of a patient acquiring HIV from an
infected provider are small, infected patients have transmitted
HIV to a dentist and other health care providers when small or
inapparent quantities of blood are transferred during clinical
procedures. Presumably, small blood transfers from the provider
to patient likewise could cause transmission. One infected
surgeon may perform many operations, increasing the opportunity
for transmission. As small as the risk to any individual patient
may be, the aggregate risk thus becomes significant enough that
patient safety and prudent risk management dictate restricting
infected providers from performing invasive procedures. [Keyes,
op. cit., supra at 601-602]