Infected healthcare workers — a history of discrimination

In a half-year period in 2011, the Hep B Foundation, a non-profit advocacy group in Philly, received distraught communications from four students who were positive for hepatitis B and were consequently either denied admission to medical/dental school or were threatened with dismissal from their medical training program. This is blatant discrimination that persists in contemporary America.

Chronic hepatitis B is a lifelong infection. Many carriers were born with it. People from certain parts of the world are much more likely to be infected (the majority of cases in this country are in Asian and Pacific Islanders because as much as 1 in 10 in this group has it!). Hep B, however, is vaccine-preventable and well-managed by a line of antiviral therapies. The virus is transmitted primarily through blood, birth, and sex, not casual contact. That schools and healthcare institutions would deny the professional dreams of hep B carriers purely on the basis of their infection status is unethical.

This week, the CDC made a big step forward when it released updated management guidelines for healthcare professionals and trainees who have chronic hepatitis B. These recommendations bring the existing, 21-year-old policies into the current era of medicine. The CDC makes clear that “HBV infection alone should not disqualify infected persons from the practice or study of surgery, dentistry, medicine, or allied health fields.” and now eliminates the requirement to prenotify patients of a healthcare provider or student’s HBV status. Practice should only be restricted for those providers (not students) who have a HBV DNA titer above an expert panel-determined safe-practice threshold AND who do exposure-prone invasive procedures (which includes abdominal surgery, orthopedic surgery, obstetrics, neurosurgery, but not most of plastic surgery, catheter-based interventions, scope-based interventions, most dentistry, and so on).

That said, most of these guidelines (except the removal of disclosure) are wholly consistent with the original 1991 guidelines; the new ones are just more explicit and defined in response to all the discrimination that occurred under the old ones. I want to take one step back and think about why discrimination would exist in the presence of national guidelines that, albeit vague sometimes, reasonably justified why hep B status alone should not exclude healthcare workers from employment.

It reminded me of recent experience that medical schools and healthcare institutions very often do things that are overly conservative and against evidence-based, expert-vetted guidelines.

Prior to matriculating to med school, I had to get serological testing for antibodies to measles, mumps, rubella, and hepatitis B. Only the measles titer came back negative, and I had to get another shot of the MMR vaccine. However, I discovered that CDC’s guidelines for healthcare professionals and trainees say that in the presence of documentation of vaccination, serological testing for immunity for measles, mumps, and rubella are not cost-effective and not recommended, and neither is a booster dose in the event of a negative antibody titer. The Immunization Action Coalition’s website (immunize.org) recognizes this discrepancy, noting, “what ACIP recommends is not always what schools and institutions accept,” even though the guidelines have been around, confirmed, and updated for 15 years. As a result, this shenanigans about MMR just in this one case cost the healthcare system an unnecessary extra ~$400.

The point is, guidelines alone, no matter how scientific, can be insufficient to change policy. Here is simply another example how ‘defensive medicine’ works: the schools/institutions can protect themselves against liability (med students transferring measles between patients?) at little cost to themselves (the school does not pay for the test/vaccine). There is a strong economic incentive to be over-cautious. The incentives are compounded in the context of clinical practice, where physicians can not only cover their asses but also get paid for the extra procedures. In the recent controversies around screening mammography and prostate-specific antigen testing, there are usually groups of radiologists and urologists, respectively, opposed to the latest, restrictive evidence-based guidelines issued by preventive health groups.

Similarly, institutionalized discrimination against hep B carriers is not just a matter of hassle in patient encounters and training but, fundamentally, of medical liability and insidious incentives. It traces back to a very public case in 1990 where a Florida dentist may have infected a handful of his patients with HIV. A patient made a huge fuss. It made headlines. Congress held hearings. People were scared as heck of getting a deadly viral infection, in particular HIV and hep B, from the physicians, surgeons, and dentists that they had trusted. The Senate passed a bill that criminalized practicing medicine if HIV-positive, but that was defeated in the House. The public outcry is why in 1991, the CDC released guidelines that said HIV-infected and hep B e-antigen-positive doctors are obliged to disclose their status to patients before doing “exposure-prone” procedures (this was poorly defined and left to the discretion of local authorities). Given the climate of fear/stigma and the lack of a patient’s duty for confidentiality, disclosure would put many docs’ entire careers in serious jeopardy. But even today, the vast majority of people believe in this patient’s “right to know” for their physician’s infection status. The AMA concurred and established basically a “zero-risk” recommendation, built on the idea of first-do-no-harm. Of course, the American College of Surgeons disagreed on the basis that the data did not support a significant risk to patients and that the risk is manageable (e.g. double-gloving), but nobody listened to them (just self-interest! they cried).

What makes the issue of discrimination against hep B and HIV carriers different from the issues of MMR, PSA, mammography, however, is that with discrimination, the doctor-victim could sue. In theory, the Americans with Disability Act and the Rehabilitation Act should protect against such discrimination that is based purely on hep B or HIV positivity rather than a demonstrated “significant risk” to patients. This is a matter of civil rights, but more importantly, this provides an economic disincentive for institutions to act overly cautious on behalf of patients.

However, in the decade after the 1990 hooplah, there were many civil court cases that set a series of precedents where the institution or patient won against the (HIV) infected practitioner. Sometimes, the doctor and/or hospital had to pay even when the exposed patient didn’t get infected. In Faya v Almaraz, patients who turned out HIV-negative still got monetary damages to compensate for the emotional distress of waiting for an HIV test after being operated on by an HIV-positive surgical oncologist at Hopkins. Both the estate of Dr. Almaraz (who had since died of AIDS) and Hopkins (which had ‘vicarious liability’) had to pay up. Other cases:

• Doe v. Washington Univ 1991 (HIV-positive dental student ruled not otherwise qualified to perform invasive procedures because the risks defy the axiom to at least do no harm). [cmon, Wash U…]
• Estate of William Behringer v. Medical Center of Princeton 1991 (no violation of state statute proscribing discrimination against the handicapped because HIV-positive surgeon posed a “reasonable probability of substantial harm” to others).
• Bradley v U of Texas MD Anderson Cancer Center 1993 (in favor of hospital that refused to permit an HIV-positive surgical assistant to assist surgeries, even though risk was “small”)
• Doe v. U of Maryland Med Sys Corp 1995 (against HIV-positive neurosurgery resident where the risk of transmission was “minimal but nevertheless ascertainable”)
• Estate of Mauro v. Borgess Med Ctr 1998 (against HIV-positive surgical technician even though CDC calculated odds of transmission during a surgery as between 1 in 42,000 and 1 in 420,000)

In light of these torts, hospitals started kicking out health care workers who were infected. HIV was the driving force, but people eventually noted that HBV gave an even stronger reason to fear an infected surgeon, given that, as well all know, HBV is also deadly and 100 times more infectious than HIV! I couldn’t find any provider->patient hep B caselaw, but I imagine it followed similar patterns of discrimination.

The new guidelines fixes a number of things. It’s more clear about what should count as ‘exposure-prone.’ It removes mandatory disclosure. It defines the expert panel role more clearly. It leaves students off the hook. But it’s a bumpy road ahead.

First, the guidelines do still give expert panels some power to manage the practices of providers who do invasive work. This sets up situations where local politics rule. In theory, the expert panel can decide that the safety threshold for HBV titer is zero or close to it. The panel can also exercise their discretion to regulate specific practices and procedures that seem to fall in the gray zone of CDC-defined invasiveness, such as liposuction, abortions, amputations, breast augmentation, assisting vaginal delivery as a midwife, eye surgery.

Second, states (either legislatures or departments of health) can adopt the CDC guidelines or draft their own version, which could be more restrictive. Given that public opinion is clearly in favor of disclosure, it is unlikely that Congress will be the source of a national codification of the CDC guidelines anytime soon. But maybe.

Finally, courts have and may continue to find ways to rule against doctors. Judges retain some degree of autonomy in interpreting and applying tort and disability law. Though CDC guidelines are frequently respected as expert opinion in caselaw, they don’t carry the force of statutes and regulation. For instance, the 1991 guidelines said healthcare workers whose practices are changed by HBV/HIV status should be provided opportunities to continue appropriate patient-care activities. The judge in Bradley v MD Anderson found precisely the opposite: the hospital had no obligation to reassign the surgical tech Mr. Bradley to a patient-care job, but only to reassign him to any job available (he had to work a desk job as a purchasing assistant).

The result is that, despite new guidelines, some hospitals still might insist that infected surgeons refrain from practice, that infected med students not partake in surgery, that infected interventionalists disclose their status to patients, purely out of a fear of liability. In my mind, it might have to take a successful civil rights lawsuit under the new guidelines to universally change policy.

I hope that the implied threat of such a suit plus the idea of discriminatory policies being scientifically unsound would be enough to convince most institutional policymakers. In thinking about getting schools/hospitals to change or even to establish relevant policies, I particularly like these two very blunt, confrontational quotes from the CDC updated guidelines (emphases mine):

“The Consult Subcommittee supported the new recommendation that mandatory disclosure of provider HBV status to patients was no longer warranted and that the 1991 recommendation for disclosure was discriminatory and unwarranted.”

“In addition, the Consult Subcommittee determined that there was no scientific or ethical basis for the restrictions that some medical and dental schools have placed on HBV-infected students and concluded that such restrictions were detrimental to the professions as well as to the individual students.”

TL;DR: New guidelines are cool and big step forward, but current policy is steeped in a history of litigation. Might take multiple lines of attack to change policy. We can do it. It’ll happen.