SURGICAL ETHICS CHALLENGES

HIV-infected surgeon: Professional responsibilityand self interestJames W. Jones, MD, PhD,a Bruce W. Richman, MA,a and Laurence B. McCullough, PhD,b Columbia,Mo; and Houston, Tex

You are a successful 38-year-old vascular surgeonwho has applied for a large insurance policy to secureyour family’s future. The insurance company hasordered a complete physical exam, including bloodwork, as a condition of enrollment. Your test hascome back positive for HIV, and the finding has beenconfirmed on repeat testing. Your immune systemremains intact. You inquire about medications andprognosis, and are advised that you have a 10- to 20-year life expectancy. You study the literature and findthat the incidence of HIV-positive surgeons infectingpatients is extremely rare. The large group practiceyou are affiliated with has been planning to make youa partner within the year. Your most ethicallyresponsible action is:

A. Double glove and take every possible precaution in theOR, but do not disclose your condition to anyone andcontinue your surgical practice.

B. Maintain secrecy about your HIV status until yourpartnership in the group is formalized.

C. Inform your group, your hospital, and your patients ofyour condition, and continue to practice surgery.

D. Retire from surgical practice and seek patient care op-portunities in a specialty that does not involve invasiveprocedures. Cooperate in notification of recent pa-tients.

E. Ignore the laboratory results and carry on as before; thecondition is not transmittable unless you become symp-tomatic.

With improved pharmacologic management of HIV-associated complications, this once uniformly lethal infec-tion has been transformed into a chronic disease with whichsome patients can live and function for many years. Public

perceptions of HIV infection have begun to track thischange in clinical reality. When HIV infection was firstdocumented in the mid-1980s, the public reaction was fear,ostracism, and rage toward those infected. The sympathyusually afforded the terminally ill was regularly denied theHIV patient, who was furthermore made to bear the bur-dens of blame and shame on withering shoulders. Thesereactions are now far less common, and they have becomesocially unacceptable. But kindness and empathy are notthe only ethical issues at play when the practice of anHIV-positive physician is under consideration. Questionsabout contagion, financial liability of associates, the obliga-tion to control iatrogenic risk, and the responsibility todisclose clinically relevant information during the informedconsent process are legitimate ethical concerns, and existwell beyond the realm of social prejudices. Physicians havean obligation, under the long-established ethical principleof beneficence, not to subject their patients to unnecessary,preventable iatrogenic risk. This obligation includes pro-tecting patients from oneself should one become a vectorfor infection of patients. Although the CDC estimates thatrisk of patient infection by an HIV-infected surgeon may beas low as between 1 in 40,000 to 400,000 surgeries,1,2 theAmerican Medical Association contends that “physicianswho are HIV positive have an ethical obligation not toengage in any professional activity which has an identifiablerisk of transmission of the infection to patients”2 and even1 in 400,000 is “identifiable”. Confirmed cases of surgeon-to-patient transmission of HIV have been reported.1,3 Al-though recent improvements in pharmacologic manage-ment of HIV infection are clearly effective in extending lifeand functionality, they do nothing to lower the risk ofdisease transmission. HIV remains a virulent contagiousdisease, transmitted through the mucosal tissues and vitalfluids which are the surgeon’s working environment. Al-though recommendations are clearly against the HIV-pos-itive surgeon exposing patients by performing invasive op-erations, hepatitis C– and hepatitis B–infected surgeons areallowed to continue their practice.4,5

Surgeons are further obligated by ethical consider-ations of the informed consent process to disclose informa-tion to patients about the benefits and risks of surgicalprocedures. This disclosure should be guided by the rea-

From the Department of Surgery, University of Missouri,a and theCenter for Medical Ethics and Health Policy, Baylor College of Medicine.b

Correspondence: James W. Jones, MD, PhD, University of Missouri, De-partment of Surgery (M580), One Hospital Dr, Columbia MO 65212(e-mail: jonesjw@health.missouri.edu).

J Vasc Surg 2003;37:914-5.Copyright © 2003 by The Society for Vascular Surgery and The American

Association for Vascular Surgery.0741-5214/2003/$30.00 � 0doi:10.1067/mva.2003.224

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sonable person standard, which requires the surgeon toprovide patients with clinically significant information thata layperson of average sophistication in the patient’s cir-cumstances should not be expected to know.6,7 The layper-son of average sophistication should not be expected toknow that he is at risk of HIV infection from his surgeon.The patient providing legitimately informed consent forperformance of an operative procedure by our surgeonmust first be made aware that the surgeon is infected with alife-threatening communicable disease, and that any addedrisk can be eliminated by seeking the services of anothercapable surgeon.

Our surgeon’s dilemma is further complicated by hisrelationship to the organizations and institutions withwhom he is necessarily affiliated. Most hospitals reprivilegephysicians annually, and the process typically includes in-quiry about any recent changes in health status that wouldaffect one’s ability to care for patients. The practice groupwhich intends to offer partnership to our accomplishedyoung surgeon, and with it some significant guarantees ofsalary and benefits, will do so in the expectation that he willcontinue to be a clinically productive and economicallyprofitable contributor. Both the privileging hospitals andthe practice group will bear substantial liability should thesurgeon’s disease manifest itself in a patient’s illness orinjury.

Choice D is, regrettably, the only answer that satisfiesall the associated ethical issues. This difficult course is theleast satisfactory to the surgeon’s immediate self-interestand will very likely require retraining and substantial in-terim sacrifices in income and lifestyle.

Choice A is ethically problematic because even themost scrupulously-observed infection control precautionsare not always effective in protecting surgical patients fromtransmission of infectious disease by an HIV-positive phy-sician. Every surgeon knows that breaches in infectioncontrol technique occur routinely in the OR, and that

needle sticks, glove tears, and fingers cut by wires and sharpinstruments place both surgeon and patient at risk. ChoiceB involves intentionally misleading one’s closest colleaguesin the service of one’s financial interest and at the expense oftheirs. Because reporting the infection is likely to affecttheir decision to offer you partnership, withholding theinformation is tantamount to financial fraud, for whichthere is no ethical support. Choice C fulfills one’s obliga-tions to the process of informed consent and to the sur-geon’s responsibility to notify his affiliated organizations,but does not satisfy the beneficence-based obligation toprevent unnecessary and avoidable patient risk. In a practi-cal sense, the surgeon who attempts to continue his surgicalpractice under these conditions is likely to find painfully fewpatients willing to proceed under his care once they aremade aware of his condition. Choice E is scientificallyerroneous and denies the immediate gravity of the situationto one’s self as well as to the potentially affected patients,colleagues, and organizations whom it places at unconsent-ing risk.

REFERENCES

1. Orentlicher D. From the Office of the General Counsel. HIV-infectedsurgeons: Behringer v Medical Center. JAMA 1994;271:1160.

2. Daniels N. HIV-infected professionals, patient rights, and the ‘switch-ing dilemma’. JAMA 1992;267:1368-71.

3. Lot F. Probable transmission of HIV from an orthopedic surgeon to apatient in France. Ann Int Med 1999;130:64-5.

4. Schaffner W, Mishu-Allos B. Protecting patients when their surgeon ordentist is infected with a blood-borne virus. J Hosp Infect 1995;30(suppl):156-62.

5. Cockcroft A. Surgeons who test positive for hepatitis C should not betransferred to low risk duties. Rev Med Virol 2000;10:79-82.

6. McCullough LB, Jones JW, Brody BA. Informed consent: autonomousdecision making of the surgical patient. In: McCullough LB, Jones JW,Brody BA, editors. Surgical ethics. New York: Oxford University Press;1998. p. 15-37.

7. Wear S. Informed consent: patient autonomy and clinician beneficencewithin health care. 2nd ed. Washington: Georgetown University Press;1998. p. 200.

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