In June 2007, the Department of Health and Human Services Centers for Disease Control and Prevention (CDC) estimated 1,239,000 to 1,385,000 persons in the United States were living with HIV/AIDS. The CDC also estimated that approximately 40,000 persons in the United States become infected with HIV each year. It is inevitable that almost every dentist now has a patient affected by this disease. While dentists may exercise reasonable discretion in selecting patients for their practices, they cannot refuse to treat patients based on their HIV status, just as they may not refuse to treat patients based on race. HIV discrimination is illegal under the Americans with Disabilities Act (AwDA) of 1990 and the Federal Rehabilitation Act of 1973 and the laws of most states. According to the American Dental Association Code of Ethics, to deny treatment solely based on a patient’s HIV status is also unreasonable.

In the Bragdon v. Abbott case, a dentist claimed he had a right to refuse treatment to a person with HIV because of the infectious risk posed by the patient. The same case became the subject of a landmark U.S. Supreme Court decision that held people with HIV can sue under the AwDA if their disease was the basis of the bias.

While you cannot refuse to treat HIV-positive patients, you may ask patients about their HIV status on the health history form. Be sure you are consistent and ask every patient. For new patients, consider asking their HIV status during your initial consultation rather than on the initial health history form. This may lessen concern about discrimination based on a patient’s HIV status. The diagnosis or treatment of any patient, including one with HIV, requires a complete assessment of the patient’s medical condition based on reasonable and informed medical judgments, given the state of medical knowledge at the time. For example, a dentist should not prescribe medications unknowingly that may contradict or react to a medication the patient is currently taking. “Unknowingly” prescribing an improper medication is not a defense to a subsequent lawsuit arising out of the improper prescribing.

 It is completely appropriate to refer a patient if the patient’s clinical symptoms and medical needs are beyond the scope of your competency and/or training. However, be sure you have a substantial reason for referring the patient to another health care provider.

When referring an HIV-positive patient, thoroughly explain the basis of your decision to the patient. Document the reason for the referral, that you explained that reason to the patient, and the outcome of your recommendation. In addition, if applicable, let the patient know that once the specialist has treated the particular condition for which you referred, you would be glad to provide any further necessary treatment within your area of expertise.

Additionally, a dentist may be liable for discriminatory refusal to treat if an HIV-positive patient is refused appointments by the receptionist or refused treatment by the hygienist or assistant. If staff members have concerns about treating a patient with HIV/AIDS, educate them about the efficacy of universal precautions. A doctor is liable for the conduct of employees even if such acts are a violation of office policy. Staff refusal to treat HIV-positive patients is no defense to discrimination claims against an employer. If staff members continue to resist after being educated, consider taking disciplinary action up to and including termination.

Finally, it is important to remember a patient’s health issues are confidential. Remind your office staff of the office privacy protocol and that they should not release information without your approval. Such information should be available only on a “need-to-know” basis for staff and other health care providers. A patient’s HIV status bears special confidentiality. Be sure not to release this information unless you have express written permission from the patient or the patient’s legal representative. In some states, like California, a general release or records form is not valid for release of HIV status unless the release specifically states…“including HIV status.”

Should patients request that you not document their status in the chart, explain that to treat them appropriately, you must note their status and any related medications in their chart. Their treatment may be compromised if such information is not included. In addition, explain the office’s privacy protocol and that limited office staff have access to their chart.

Lawsuits against dentists for refusal to provide care to HIV-positive patients have resulted in significant fines, large settlements, as well as other injunctive relief, such as posting signs that the dentist has corrected his or her discriminatory practices. Dentists have an ethical and legal obligation to treat HIV-infected individuals, including patients of record, as well as other persons who seek treatment when the office is accepting new patients. The easiest way to avoid legal problems is to treat HIV-positive patients just as you treat other patients.

 

*Dani Aposhian is a risk management specialist for the The Dentists Insurance Company, Sacramento, California.