Editor's Note: In healthcare, one's own moral and ethical beliefs may conflict with HIPAA and the laws of the state. In recognition of World AIDS Day, Dec. 1, ADVANCE brings you this firsthand account of one nursing staff's experience, followed by commentary by ethics and legal experts, Vicki Lachman, PhD, RN, and Renee H. Martin, JD, MSN, RN.
Consider the following scenario:
A patient presents to the ED in Iowa with difficulty speaking and walking. The patient is cachectic and lethargic, according to the ED documentation.
The spouse provides pertinent medical information to the staff, and after a brief stay on the telemetry unit the patient is transferred to the med/surg unit.
An MRI rules out a CVA, but MRI results are inconclusive so a second MRI, this time with GAD (gadolinium, a contrast media), is ordered. The results state a correlation with the patient's HIV status is required.
Until this report, there is no documentation indicating the patient is HIV positive. No treatment has been undergone and no retro-virals prescribed.
An infectious disease specialist is called in to evaluate the patient.
The nursing staff is made aware of the patient's positive HIV status.
Soon after, the staff realizes the spouse does not know the patient is positive.
However, infection prevention nurses inform staff that state law prevents the hospital from disclosing the positive HIV status of the patient to the spouse.
Doing so would be a violation of HIPAA of state law.
Staff is extremely troubled by this, and subsequently conducts research, finding information about the Tarasoff case, in which a patient under psychiatric care told his therapist he planned to kill someone.
The therapist in that case did not warn the individual and she was killed by the patient. The case established a duty to protect statute stating that a physician cannot protect someone from a dangerous situation at all times but warning them will allow them to protect themselves.
If a patient was diagnosed with tuberculosis, some staff argue, the family would be told immediately and tested in order to receive treatment and protect others from spreading the disease.
Couldn't HIV be classified the same way? How could the spouse not be told, and thus denied the right to seek treatment?
Revealing the Truth
Ultimately, the patient consents to informing the spouse.
The patient's primary physician agrees to take on the responsibility of informing the spouse, and a social worker and security are all informed about when it would occur.
The spouse is understandably shocked and asks how long the partner knew about the diagnosis. The partner does not respond.
The spouse is informed about the need to be tested and given the clinic phone numbers and a support hotline to call.
The spouse gives the physician the phone number of the HIV positive patient's closest family members and asks not to be contacted again.
In the ensuing days, the social worker helps the family arrange for the patient to go to a facility specializing in HIV care.
The patient is never readmitted to the hospital and the staff never hears from the family or spouse again.
ADVANCE for Nurses invited a legal and an ethics expert to comment on this case:
By Vicki Lachman, PhD, RN
On one hand, there is the basic duty to keep client information confidential. On the other hand, there may be a duty to warn others if a patient poses some threat to another person.
Unfortunately, the law does not always provide definitive answers. However, the principles of confidentiality and informed consent are not obstacles to effective prevention and treatment programs.
"Rather, it is HIV-related denial, stigma and discrimination, and the secrecy that results from these that compose major impediments to an effective response to HIV/AIDS." (UNAIDS, 2000, "Opening Up the AIDS/HIV Epidemic," p. 3).
I think the nursing staff in this case took the right actions repeatedly - involving legal, ethics committee, social work, infectious disease professionals, primary care physician and security back-up.
Though initially blocked by the legal issues in the case, they sought the needed resources and information to both protect patient confidentiality and the sposues right to know the danger unknowingly being faced.
They provided a supportive space for the spouse to hear the bad news, and the spouse made the decision to transfer the responsibility for the patient to the family. Social work helped facilitate discharge to a halfway house.
This was a true interdisciplinary approach to the care of a troubling ethical case.
Vicki D. Lachman is a clinical professor at Drexel University College of Nursing and Health Professions in Philadelphia. She is author of the book, Ethical Challenges in Healthcare: Developing Your Moral Compass.
By Renee H. Martin, JD, MSN, RN
Many states have enacted strict confidentiality laws to limit the circumstances under which an individual's HIV status may be disclosed without the patient's informed consent.
AIDs was, and in too many instances, sadly, still is, a disease that carries enormous stigma and resulting societal alienation and discrimination. Therefore, these laws were enacted because of the perceived need to encourage AIDS testing and counseling of individuals and thereby assist in the control of the spread of the disease.
The rationale is that when individuals are assured that their privacy will be protected from the inappropriate disclosure and subsequent misuse of information concerning their HIV status, they will more freely seek out testing and counseling.
While state law varies, there are some central themes. First, the HIV information that must be kept confidential is defined quite broadly and often includes any information which:
1) is in the possession of a person providing health or social services and is relative to whether a person has been the subject of an HIV-related test or has HIV, an HIV-related illness, or AIDS; or
2) identifies or reasonably could identify an individual as having one of these conditions, including information about that person's sex-sharing or needle-sharing partners.
For instance, it seems obvious that written information on a patient's chart relating to HIV testing or treatment is HIV-related information, but it can also include a nurse who tells a third party of seeing a patient in the waiting area of an HIV testing/treatment office. In most states, the confidentiality requirements extend to both individual and institutional healthcare providers.
Further, most laws state that any provider who obtains confidential HIV-related information in the course of patient treatment, including any social service professional, may not disclose (or be compelled to disclose) the patient's HIV status except in very limited circumstances.
These limited circumstances often include local boards of health, insurers, funeral directors, employees of certain county or state agencies where those employees are in some way responsible for ensuring that HIV patients receive appropriate healthcare, etc. In some limited instances, a court may order the disclosure.
So, to address the questions raised by the staff in this article, I think that under the law, HIV and tuberculosis are viewed differently. While both are infectious diseases, each carries a different mode of transmission and disparate social stigma and societal prejudice. HIV is therefore not "classified" the same way.
Further, in those states where HIV and AIDs patient information is afforded strict confidentiality protections, these state laws often pre-empt or "trump" HIPAA's provisions on the use and disclosure of protected health information.
As to the Tarasoff duty to warn being applicable to medical professionals treating HIV patients, you must look to your individual state law for clarification.
Some states have included language in the HIV confidentiality statutes addressing the duty to warn, while other states rely on case law to determine if a duty exists. However, few states have adopted a duty to warn third parties of potential HIV exposure.
What is clear under these facts is that your state has a law precluding medical professionals from disclosing a patient's HIV status to a spouse without the patient's affirmative consent.
If anyone at this facility had disclosed this information without the patient's full consent, they would have been in violation of state law, hospital policy and state nurse licensure law.
This violation would likely lead to employment termination, a licensure investigation by the state board of nursing, and a potential suit against the nurse by the wife for intentional infliction of emotional distress. And to add insult to injury, professional malpractice insurance would not cover this act because it would be deemed an intentional volitional act in breach of state law.
When faced with such conflicts, take heed of legal counsel's advice and determine what your rights and duties are under applicable law.
Renee H. Martin, is a member of the health law firm of Tsoules, Sweeney, Martin & Orr, LLC located in Exton, PA.