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Disclaimer/Publication Information
This publication is informational in nature and is not intended to set any standards of care. Dentists should always exercise their own professional judgment in any given situation, with any given patient. The section addressing legal issues should not be construed as legal advice. Dentists must consult with their own lawyers for such advice.
"Legal Considerations" and "Ethical Considerations" are excerpted from the publication, Dental Management of the HIV-Infected Patient, copyright © 1995
American Dental Association, published
by the ADA and the American Academy of
Oral Medicine. This information is current
as of mid-December 1995. Since then,
new developments have occurred and have
been reported in the ADA News. Future developments
also will be reported in the ADA News.
Legal Considerations
This section addresses the primary legal issues concerning dental treatment of patients with HIV. The body of case law that is being established in this area is driven by science, particularly with respect to the efficacy of universal precautions. However, it is important to note that this case law is early in its development, not altogether uniform, and it will be some time before precise legal guidance can be provided on all the pertinent issues. Further, cases are likely to turn on their specific facts; e.g., whether activity constitutes a lawful referral or an unlawful refusal to treat will depend on exactly what happened in the case in question.
The discussion that follows on legal issues is offered on an informational basis only, not as legal advice. In that respect, this section is qualitatively different from other portions of this text, in that it does not offer recommendations. Because the law is evolving and varies in some respects from state to state, dentists are advised to consult with their own personal attorneys for legal advice. That said, the easiest way to avoid legal problems - and to lessen the need for legal advice - is for dentists to treat HIV-infected patients just like they treat their other patients.
Duty to Treat
As a general rule, dentists have a legal obligation to treat HIV-infected individuals, including patients of record and other persons who seek treatment when the office is accepting new patients. Under the Americans with Disabilities Act (AwDA) and many similar federal, state and local laws, a person with HIV is considered as having a "disability," as are persons who are perceived to have HIV, which may include patients who have had blood transfusions and openly homosexual patients. at should be noted that HIV is only one of many infectious diseases that are considered as disabilities under the AwDA and similar laws; e.g., hepatitis B and tuberculosis are also treated as disabilities). In a case decided shortly before the publication of this text, the first federal court ruling on a charge of HIV discrimination against a dentist upheld the constitutionality of the AwDA. [1]
Title III of the AwDA, which went into effect in January 1992, makes it illegal to discriminate against persons with disabilities, and those with whom they associate, in the provision of services in "places of public accommodation." The office of a health care provider is a place of public accommodation under the AwDA. The general rule prohibiting discrimination against persons with disabilities by places of public accommodation states:
"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods. services. facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."[2]
Thus, it is unlawful discrimination to refuse to provide care to an individual because s/he is, or is perceived to be, HIV-infected. [3] To date, no court or administrative agency has ruled that it is acceptable to refuse care solely because of the patient's HIV status. [4] The AwDA also prohibits behavior that constitutes discrimination such as a denial of participation, participation in unequal benefit, and provision of separate benefit
Cases have been prosecuted under both federal and state laws against dentists for refusal to provide care to HIV-infected patients. Some have resulted in significant fines against dentists. Others have settled for monetary payments, along with other injunctive relief. The settlements of the first two cases brought by the federal government (on the same day) against dentists for refusal to treat HIV-infected individuals are instructive. In the first of the two settlements, the dentist agreed to pay $100,000, and to treat HIV-infected individuals in the future, post signs in the waiting area of the office indicating that the dentist provides care to HIV-infected patients, and undertake (and compel staff to under-take) professional training to avoid future discrimination. The second settlement, reached after the issuance of the first federal court ruling against a dentist on a charge of HIV discrimination under the AwDA, settled for $120,000 and similar relief. [5,6] A particularly striking aspect of that settlement is the nondiscrimination notice that the dentist agreed to prominently display in his waiting room, or in his operatory if the office is owned by another dentist:
This office does not discriminate against any person on the basis of disability, including HIV-positivity or AIDS. (Dentist's name) and his staff provide dental treatment and services to persons with HIV or AIDS on the same terms and conditions that such services are provided to patients who are not HIV-positive.
The Americans With Disabilities Act of 1990 is a federal law that protects persons with disabilities, including individuals with HIV and/or AIDS, from discrimination on the basis of their HIV and/or AIDS status, including discrimination in the provision of dental care. ff you feel you have been discriminated against in the provision of dental care because of your HIV and/or AIDS status, you should call the Department of Justice in Washington, D.C. at 1-800-514-0301.
Liability for Staff Actions, Including Refusals
A dentist who owns or operates a dental
office is likely to be liable for discriminatory
actions by his/her staff, including discriminatory
refusals to treat; e.g., if a patient is
turned away by a receptionist or refused
a prophy by a hygienist. The safest approach
legally is to make sure that staff refrain
from discrimination. If a staff member
has concerns about treating a patient with
HIV/AIDS, education about the efficacy
of universal precautions, and the practice's
legal obligations, may be indicated.
That said, the provision of equal services might negate a charge of discrimination, although the courts have not addressed this question and the enforcement agencies may disagree. For example, an office might avoid liability if at least one of its hygienists is available to provide treatment to HIV-infected patients. Another option might be for the dentist to offer to provide treatment (e.g., to conduct a prophy) when a staff member refuses to treat However, if the dentist charges more for providing the same treatment, or does not regularly perform such treatment and happens not to provide services of the same quality, this conduct may be considered discriminatory.
The prospect of being liable for staff refusals to treat HIV-infected individuals raises interesting employment law questions, as well. Absent any state law or pre-existing employment agreement to the contrary, a dentist who requires the dental team to treat HIV-infected patients can probably terminate these individuals for refusing to do so.
Personal Liability
It is unlikely that a dentist can escape personal liability under the AwDA by virtue of having incorporated his/her practice. The one court case in this regard has plainly held that both the dentist and the corporation will be liable. [7]
Scope of Duty
Neither the AwDA nor similar state laws require dentists to treat beyond their areas of expertise. Indeed, providing treatment beyond his/her area of competence could expose a dentist to malpractice liability. Accordingly, under the AwDA a dentist may refer a patient when the treatment sought is outside the referring provider's area of specialization, or if the dentist would make a similar referral for a person without a disability seeking the same treatment or services. [7] In the case of HIV, a general dentist can refer an HIV-infected patient to a specialist if the dentist would make the same referral of a non-infected patient for sound dental reasons; e.g., if the referral is made because of the patient's dental needs for the same reasons and under the same circumstances as any referral of other patients with similar conditions. However, the current law is that a dentist may not refer a patient with HIV/AIDS based on that person's HIV status alone.
To avoid litigation, the safest course for a general dentist making a referral for specialty care (e.g., to a periodontist or oral surgeon) is to make clear that a referral to a specialist is for the patient's benefit The referring dentist may wish to explain that the needed treatment is outside the scope of his/her area of expertise, and that once the specialist has treated the particular condition for which the referral was made, s/he would be glad to provide any further necessary treatment within her or his area of expertise.
Referrals for "Specialty" HIV/AIDS Care
While dentists need not provide treatment beyond their areas of expertise, referrals for "specialty" HIV/AIDS care may be problematic. Such referrals (e.g., to a local AIDS clinic, dental school, or hospital) may be appropriate in certain limited circumstances; e.g. if the patient's immune system is so compromised that the patient's physician recommends a specific procedure be carried out in a hospital setting. However, if the referrals amount to refusals to treat they would probably not be permissible absent a sound dental basis or if the referral is a mere pretext for discrimination. A blanket referral of all HIV-positive patients because it is "in their best interests" is legally problematic.
A key issue regarding such referrals is whether dentists who regularly treat HIV-infected patients have a "specialty" that warrants referral. Shortly prior to publication of this text, the first judicial determination of liability under the AwDA against a dentist sued for HIV/AIDS discrimination was rendered. This case noted that there is no recognized dental "specialty" for providing care to HIV-infected patients. [8] The court held that since there is no specialty education needed to treat such patients (specifically, "there is no such thing as a 'specialist' for cleaning teeth"), the dentist's referral of two individuals to another dentist who treated patients with HIV/AIDS was a pretext for unlawful discrimination.
While the law in this area is evolving, a key issue appears to be whether and when a referral to a "specialist" constitutes an unlawful refusal to treat. Although it is probably risky for a dentist to strongly suggest referral to a clinic specializing in the treatment of HIV-infected patients, it may well be permissible for the dentist to offer referral as a non-mandatory treatment option. For example, a dentist may want the patient to know that a clinic that provides treatment for HIV-infected patients has a reputation for providing good, all-inclusive care - or that the clinic can provide the care at no cost to the patient, if that is the case. If the dentist suggests this option and the patient has a choice of whether to be treated at the clinic or in the dentist's office, this would probably not be considered as an unlawful referral. However, this is not a well-defined area of law, so any speculation about the outcome would be just that speculation. If a dentist chooses to offer this option, it is safest for the dentist to make sure that the patient understands that s/he is not encouraging the patient to go elsewhere for care in order to avoid treating the patient
The "Direct Threat" Defense
Concerns about patient-to-doctor transmission of HIV are not likely to justify a refusal to treat. Under the AwDA, health care providers may treat people with disabilities differently than other patients if they do so in order to minimize the "direct threat" of transmission of a communicable disease. Dentists may thus refuse treatment if the risk of transmission cannot be eliminated or reduced to an acceptable level through reasonable modifications of policies, practices or procedures. In dentistry, the overwhelming view of the scientific community is that universal precautions work and, therefore, the risk of transmission from patient to doctor is infinitesimal, making it safe to treat HIV-infected patients in the private dental office.
The court rendering the first judicial determination of an HIV-discrimination case against a dentist under the AwDA held that the "direct threat" defense did not justify a referral. [9] After hearing expert scientific testimony about the efficacy of universal precautions, the court held that universal precautions "reasonably" eliminate the risk of patient-to-doctor transmission of HIV. With respect to the direct threat defense in particular, the court supported the need for an "individual assessment" of direct threat, and noted that "universal precautions as prescribed by the CDC are universally accepted as 'reasonable modifications' of practices that will significantly mitigate the risk," and determined that [the dentist's] purposeful ignorance was not a legal defense. [10] Dentists wishing to rely on the direct threat defense may have the burden of establishing the defense, which may be costly, time consuming, and require securing expert testimony to question the efficacy of universal precautions. [11] At this writing, the safest approach is to not rely on the "direct threat" defense as a supportable basis to refuse treatment
For the same reasons that the "direct threat" defense probably does not provide a basis to refuse treatment, fears of third parties (e.g., the dentist's patients or spouse) can generally not supply a legal basis to refuse treatment. In each case, the premise is that universal precautions work, so it is safe to treat HIV-infected patients in the private dental office. To rely on the fears of third parties as a basis to refuse treatment a dentist would probably have to argue that universal precautions do not work. Regulations implementing the AwDA prohibit treatment decisions based on the unfounded fears and prejudices of others.
Obtaining and Using Information About Patients' HIV Status
Inquiring About Patients' HIV Status
Federal law is generally interpreted as allowing dentists to inquire about their patients' HIV status, including on a health history form, provided that the inquiry is made consistently of all patients, the information is not used to discriminate, and confidentiality is maintained as required by state law. The reason is that a sound approach to the treatment of any patient, including one with HIV, requires an assessment of the patient's medical condition based on reasonable and informed medical judgments, given the state of medical knowledge at the time.
Mandatory Testing
As a matter of good practice, dentists should point out legitimate treatment concerns and suggest appropriate referrals for all their patients; not doing so could subject a dentist to a charge of malpractice if s/he sincerely believed a medical test were indicated and failed to suggest that the patient seek testing. Thus, the law probably does not restrict a dentist from suggesting that the patient consider an HIV test if the dentist in his/her professional judgment believes such a test would be in the patient's best interests. However, a dentist could be held responsible for refusing to treat a patient who declines to be tested, or for using a patient's test results to discriminate. Of course, the law would probably not support a dentist who recommends an HIV test on a routine basis just because the dentist wants to know which patients have HIV.
While there are no reported cases on mandatory patient testing under the AwDA, the federal law would probably treat HIV testing as the imposition of unlawful eligibility criteria not necessary for the provision of services. A dentist defending such a suit might then face the task of trying to establish the scientific need for testing.
Confidentiality
As a general rule, dentists may discuss a patient's HIV status or related information with a third party only when authorized by the patient, mandated by law and/or allowed by law to do so. The confidentiality of doctor-patient communications is governed primarily by state laws, many of which specify whether and on what basis information on a patient's health status may be shared with staff. The particularly sensitive nature of the confidentiality of HIV information is reflected in the fact that some states even require such information to be segregated from the patient's general health records.
Some states may mandate the reporting of an infected patient's HIV status to third parties, e.g., on a confidential basis to public health authorities. Some states allow a dentist to discuss a patient's HIV status with the patient's physician in certain circumstances, e.g., in order to develop an appropriate treatment plan. Some states permit sharing HIV information with third party carriers, such as insurance companies. In states that do not mandate or freely allow dentists to share information about their patients' HIV status, dentists must seek their patients' authorization to release information on their HIV status.
Patients Who Falsify Records
If a patient lies about his/her HIV status, the dentist might be justified in terminating the doctor/patient relationship. The dentist would need to be able to state in good faith that the lie so eroded his/her trust in the patient that s/he could no longer treat the patient. The dentist would probably need to show that s/he is concerned about any patient who provides false health information, since the dentist may unknowingly compromise the patient's health in the absence of accurate information. The dentist's position would be fortified if s/he could show that s/he had terminated other patients for providing false health information (e.g., for purposefully failing to disclose a known heart murmur or a problem with high blood pressure), and/or that the dentist had other HIV-infected patients in the practice who had not been turned away. As noted above, the law does not permit pretexts for discrimination; e.g., dentists would arguably violate the law if they use a patient's untruthful or evasive answer simply as a convenient mechanism for turning away a patient with HIV. Indeed, that appears why a court recently determined that a dentist's refusal to treat an HIV-infected patient purportedly "because of the plaintiff's dishonest and intentional misrepresentation of his medical history," rather than his disability, did not constitute a complete defense to the charge of discrimination. [12]
Other Practice Issues
In a number of areas involving dental practice issues, questions may arise regarding whether and to what extent the applicable laws can restrict a dentist's exercise of professional judgment in treating HIV- infected individuals. Dentists are generally free to exercise their professional discretion in rendering treatment, provided that they do so reasonably, within the limits of the law, and not as a pretext for discrimination. Whether any particular exercise of professional discretion poses legal concerns will turn on the facts of a given case, including the effect (if any) it has on the patient and, in addition, the dentist's motivation.
Some preliminary issues concerning the potential restriction of a dentist's professional discretion under the federal laws are considered below. It should be noted that this area of the law, particularly when differential treatment is based on a dentist's exercise of professional judgment, may be hotly contested and take some time to evolve.
Extra Precautions
The AwDA and similar laws do not directly address the legality of using "extra precautions", such as double gloving or extra protective plastic, when treating patients known to have HIV. Based upon the preponderance of scientific evidence that universal precautions work, the enforcement agencies would probably view the use of any additional precautions when treating a patient known to have HIV as discriminatory differential treatment. On the other hand, dentists' ability to exercise professional judgment in rendering treatment arguably includes determining what precautions are appropriate. While there have been no cases addressing this issue under the AwDA, at least one case based on a similar state law has held that a dentist discriminated by taking "extra precautions."
A key legal question in future "extra precautions" cases may be whether taking extra precautions is allowable as a way to mitigate the "direct threat" of HIV transmission. Given the premise of universal precautions that all patients should be treated as if they are HIV-infected, a suit against a dentist might allege that if "extra precautions" are needed to minimize the threat of transmission, they should be used in treating all patients.
While the law is not settled, the "extra precautions" issue may ultimately suggest a continuing spectrum. For example, precautions intended to stigmatize patients (e.g., a Day-Glo hazard warning or wearing a spacesuit) are probably discriminatory. In contrast, precautions reasonably based on a dentist's exercise of professional discretion (e.g., double- gloving) might be permitted - or go unchallenged - even if they are technically discriminatory. Of course, if the use of "extra precautions" is a mere pretext for discrimination, such use would be unlawful.
Missed Appointments
Missing multiple appointments may be grounds for terminating any patient, including an HIV-infected patient. Again, the AwDA and similar state laws require dentists to treat patients with disabilities on the same basis as they treat other patients. Accordingly, if a dentist has a policy and practice of terminating all patients who routinely miss appointments, a very legitimate argument can be made that terminating an HIV-infected patient for doing so is not discriminatory. The law also requires dentists to make reasonable modifications of policies, practices and procedures for disabled patients. Thus, dismissing a disabled patient because of a single missed appointment, especially if the patient missed the appointment for a reason related to his or her disability, could be problematic.
Scheduling
There is no case law regarding whether dentists can schedule HIV-infected patients for special times of the day. If allowed, this is likely to be permissible only in certain circumstances. While dentists are generally allowed to make practice management decisions, decisions to treat certain patient groups only at certain times would probably be characterized as illegal if they are mere pretexts for discrimination and/or not rooted in generally accepted science.
Scheduling patients with oral manifestations of AIDS at special times may be defensible if the dentist routinely holds open regular appointment slots for all difficult and/or unpredictable cases; e.g., before lunch or at the end of the day, so that they do not throw off the schedule for treating other patients, or so the dentist can provide the best possible care. Such an exercise of professional discretion should not be discriminatory if it is based on the need to have flexibility in treatment; e.g., if, at the time of scheduling, the dentist suspects that the condition of the patient's mouth has the potential to require extra time and attention, thus making a pre-lunch or end-of-the-day appointment important In contrast it would be harder to defend special scheduling of completely asymptomatic HIV-infected patients with no special oral conditions. Further, if any HIV/AIDS patient is scheduled at the end of the day to ensure that other patients of the practice do not see the patient in the waiting room, the scheduling decision would be difficult to defend as a valid exercise of professional judgment and would probably violate the law.
Future cases are likely to address whether restricting schedule options for HIV-infected patients is permissible at all, or only in certain circumstances. Such cases may more fully explore the legality of allegedly discriminatory practice decisions based on professional judgment.
Ethical Considerations
The ethical standards of conduct for
the dental profession are set forth in
the American Dental Association's Principles
of Ethics and Code of Professional
Conduct ("Code")
and in the advisory opinions to the Code adopted
by the ADA Council on Ethics, Bylaws
and Judicial Affairs ("Council"). Section
4.A.1. HIV Positive Patients,
states:
"A dentist has the general obligation to provide care to those in need A decision not to provide treatment to an individual because the individual has AIDS or is HIV seropositive, based solely on that fact is unethical. Decisions with regard to the type of dental treatment provided or referrals made or suggested, in such instances, should be made on the same basis as they are made with other patients, that is, whether the individual dentist believes he or she has need of another's skills, knowledge, equipment or experience and whether the dentist believes, after consultation with the patient's physician if appropriate, the patient's health status would be significantly compromised by the provision of dental treatment."
As certain manifestations of AIDS occur in the mouth, oral health care for a seropositive individual constitutes a vital health service. Because the seropositive individual can be treated with safety in the dental office, the profession and the individual dentist would not be fulfilling their obligations to society as health care practitioners if seropositive individuals were denied dental care.
Dentists may exercise reasonable discretion in selecting patients for their practices, but to deny treatment solely on the basis of a patient's HIV status is unreasonable. Such treatment can be safely provided and, in many instances, is being provided without either the dentist or the patient being aware of this fact.
Decisions with regard to the type of dental treatment provided or referrals made or suggested in the case of a seropositive individual should be made on the same basis as they are with other patients: that is, whether the individual dentist believes he or she has need of another's skills, knowledge, equipment or experience and whether the dentist believes, after consultation with the patient's physician if appropriate, the patient's health status would be significantly compromised by the provision of dental treatment.
Members of the American Dental Association voluntarily agree to abide by the Code and advisory opinions issued thereunder. Alleged violations are handled through the Association's disciplinary process and, if proven, may result in censure, suspension or expulsion from membership in the Association. Disciplinary action taken by the Association does not affect the dentist's license or right to practice under state law. However, many states have incorporated the Code's concepts of unprofessional conduct into their state laws. Violations of these laws may result in disciplinary action by the state's licensing agency.
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Endnotes
- U.S. v. Morvant 1995 U.S. Dist. LEXIS 3739 (E.D. La. 1995). That decision rejected the dentist's argument that if referrals of HIV-infected patients were prohibited by the AwDA, the statute was an unconstitutional intrusion on the exercise of his professional judgment.
- 42 U.S.C. § 12182(a). Similar prohibitions also exist in the Rehabilitation Act of 1973, which prohibits discrimination by persons receiving federal funds for the provision of health care services. 28 U.S.C. § 701-796. In many ways a predecessor to the AwDA, the Rehab Act uses similar definitions as the AwDA and imposes similar obligations on providers. An important difference between the two laws is that a violation of the Rehab Act risks loss of participation in federally funded programs, such as Medicare and Medicaid.
- Id., at § 12182(b). in addition, the AwDA grants persons with disabilities the right to enjoy public accommodations in an integrated setting. Id., § 12182(b)(1). Further, the AwDA prohibits the use of administrative methods that have the effect of discriminating against persons with disabilities. Id. It also prohibits discrimination against individuals known to associate with the disabled. Id., § 12182(b)(E).
- Indeed, numerous courts have held that it is a violation of federal or state statutes to refuse care to a person who is HIV-positive.
- In the decision leading to that settlement, the relief ordered by the court included requirements that the dentist and his professional corporation be: - enjoined from refusing to treat persons with HIV or AIDS, on the basis of their HIV status, - enjoined from having a blanket policy of "referring" out all such persons to other general dentists, - required to adopt and post a policy of non-discrimination on the basis of disability, including HIV and AIDS, and - required to undergo (and have their staff undergo) training concerning HIV and the practice of dentistry. U.S. v. Morvant, supra, note 1.
- In a case decided just days before the publication of this text, another federal district court held a dentist liable for HIV-discrimination. D.B. v. Bloom. 1995 W.L.490481 (D. N.J. Aug. 15, 1995). In addition to ordering similar injunctive relief, the court in that case ordered the defendant dentist and dental center to pay $25,000 in compensatory damages, $25,000 in punitive damages, and $31,967.61 in plaintiff's reasonable attorneys fees and costs. The case was decided on plaintiffs motion for entry of a default judgment (following the defendants' failure to comply with discovery requests), and it is not known whether the defendants will contest the judgment or appeal.
- U.S. v. Morvant, 843 F. Supp. 1092 (ED. La. 1994).
- U.S. v. Morvant, supra note 1. See, also, D.B. v. Bloom, supra note 6.
- Id.
- At least one dentist has raised the "direct threat" defense in a pending case of alleged HIV discrimination under the AwDA and related laws. Abbott v. Bragdon, Civil Action No. 64-0273-B (D. Maine 1994). That case may revisit the relationship between "direct threat" and the efficacy of universal precautions.
- There is very limited case law interpreting the "direct threat" defense. While the construction of the defense is not yet clear, courts have held that it is necessary to make an individualized assessment of the nature of the risk, the probability of the injury, and the possible reasonable modification of policies. Outside the health care conte courts applying such analysis have consistently found that HIV does not constitute a direct threat Some courts have found that certain HIV-infected health care providers who undertake invasive procedures pose a direct threat of transmission that cannot be reduced to an acceptable level through the use of universal precautions. See, e.g., Scoles v. Mercy Health Corp., 1994 W.L. 686623 (E.D. Pa. 1994) (universal precautions failed to satisfactorily reduce the threat of transmission posed by an HIV-infected surgeon, due to the fatal nature of HIV infection), which settled before appeal, and Mauro v. Borgess Medical Center, 886 F. Supp. 1349. (W.D. Mich. 1995) (HIV-infected surgical technician posed a direct threat because of the "real possibility of transmission, however small, and because the consequence of transmission is invariably death"). (But see Dow v. Attorney General, No. 93-15253, Slip op. (9th Cit. 1995). (HIV positive physician who currently uses universal precautions is "otherwise qualified" to perform the duties of a health care provider within the meaning of the Rehab Act).) To date, however, no court has reached this result when assessing the duty to treat HIV-infected patients.
- D.B. v. Bloom, 1995 W.L. 490481, f.n. 6 (D. NJ. Aug. 15, 1995). As noted above (supra note 6), that case was decided on plaintiff's motion for entry of a default judgment and it is not known whether the defendants will contest the judgment or appeal.
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