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Readers vs. Experts on the Question of Informed Consent and Possible Occupational Exposure to HIV

Experts say observe the law; readers say test the patient.

A couple of weeks ago, we posted an Antiretroviral Rounds case about a physician who sustains a needlestick while placing a central line in a patient with waxing and waning mental status and a positive toxicology screen for cocaine and opiates. State law requires written informed consent to perform an HIV test, but the patient refuses to sign, becomes obtunded, and has to be intubated. His only visitor is his girlfriend, and no family member or healthcare proxy is available.

Before providing our readers with the expert opinions that we solicited, we wanted to know what you would do. We asked several questions, but the key one was, Would you test the patient?

To date, we've received 35 "Reader Remarks" — one of the strongest responses that Journal Watch has received since we launched this feature 6 months ago.

Overwhelmingly, respondents favored testing the patient, regardless of what the law states. For example, SSZ noted, "Doctors have rights, too. The interventionist has an obligation to save this patient AND an obligation to his own health as well. Testing should be done while the patient is confused and the interventionist should receive appropriate treatment. The law is not correct for every situation, and . . . I hope sanity would prevail in this case." And, according to MB, "Our beloved patient is having all kinds of things done without real ‘informed consent' to possibly save his life. We can add HIV testing to possibly save the doctor's life or make it easier. Then find a jury that would convict the doctor or the hospital."

At least one respondent differed substantially from this view, with VS writing, "Follow post-exposure guidelines for unknown source. Do not test the patient against his will."

Now we publish the responses of our three experts: an expert on postexposure prophylaxis; an expert on the intersection of HIV, law, and policy; and a bioethicist and practicing physician. And guess what? Although they answer the questions in subtly different ways, they all come out clearly against testing the patient.

For what it's worth, I'm with the readers on this one. To me it seems as if there are two undesirable actions that are in conflict:

• Test the patient against his consent. No, it's never desirable to do anything against a patient's will, and literally illegal, but at least it can be justified as providing important information for the patient's own health.
  
• Provide "empirical" postexposure prophylaxis (PEP) to the intensivist. This forces the clinician to take what is most likely unnecessary (and often poorly tolerated) treatment for 4 weeks, then to go through the 6 months of anxiety waiting to hear whether he is one of the unlucky few who acquires HIV on the job.
  

Sorry, in my book there's no contest: The second of these choices (no test, empirical PEP) is far worse than the first, and I'm pretty sure OSHA would agree with me. Workers have rights, too. (This is not to say that our experts are wrong — just that I disagree with them!)

Read it all here. It's not too late to weigh in. Just follow the link and scroll to the bottom of the page to leave a remark.

— Paul E. Sax, MD

Published in Journal Watch HIV/AIDS Clinical Care August 10, 2009

Reader Remarks:

Review and add to remarks on this article

• Get a different ethicist
  Norman Bauman, 11 Aug 2009 2:14 PM EST
  The interventionist should get his own lawyer to protect his interests.
  
  Hospital lawyers protect the hospital's interest, which is not... [more]
• AIDS Testing against will
  Dr Suresh Amin, USA & India, 11 Aug 2009 2:14 PM EST
  I am disturbed to note that none of the readers mentioned to repeal the law. If not totally to repeal... [more]
• HIV Testing/Informed Consent
  Linda L. Pifer, Univ. of TN Health Science Center, 11 Aug 2009 2:14 PM EST
  The benefit of testing in this case clearly outweighs the risk of compromising the patient's privacy. Keep in mind that... [more]
• Informed Consent
  Arthur L. Yeager, DMD,MMH, Retired, 11 Aug 2009 2:14 PM EST
  Since the potential for harm to the needle stuck physician excedes by far the harm to the perhaps HIV infected... [more]
• HIV testing case
  Barbara L. Keller, Oregon, 12 Aug 2009 4:51 PM EST
  This is a classic example of why the law on HIV is terribly out of date. If one examines every... [more]
• HIV testing after exposure
  Marie T InfectionControl, NY, 17 Aug 2009 1:17 PM EST
  In my >20 yrs in infection control and employee health work, the only person who refused testing was the lawyer... [more]
• HIV testing/Informed consent.
  Anup Lahiry, 17 Aug 2009 1:17 PM EST
  I agree with most of the readers comment. Doctors do not have the luxury to deny care to a critically... [more]

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