If the issue wasn`t so critical, the doctor with AIDS who continues to treat patients at Cook County Hospital would serve as a classic classroom exercise in academic debate.
Instead, the situation is a grim riddle, raising fundamental questions with no easy answers about the clash of individual rights, privacy, personal choice and public health.
Until now, there have been extraordinary efforts to protect the interests of the victims of the fatal disease. This has occurred partly because of an educational effort to avoid the kind of emotion and hysteria that kept 13-year-old Ryan White out of an Indiana public school for 10 months in 1985 and partly because of uncertainty about the disease and how it is transmitted.
Though such efforts receive little criticism, there is concern they may collide with other significant social goals.
”There obviously has been concern for the common good and the public interest in all the debate, but in the weighing and balancing of the relative claims–the individual liberties of the victims against the common good–there seems to have been a general tendency to come down on the side of the rights and liberties of the AIDS victims,” says Dr. Mark Siegler, director of the Center for Clinical Medical Ethics at the University of Chicago.
Among the major issues raised by the situation at Cook County Hospital are:
— The clash between the privacy rights of an AIDS victim and the rights of a patient to choose his physician and have all relevant information needed to make a decision on whether to consent to or reject the proposed treatment. — Controversy over the guidelines issued by the federal Centers for Disease Control (CDC), which in general allow a physician with AIDS to conduct surgery as well as obstetrical and other invasive procedures as long as certain precautions are taken. The guidelines do not require disclosure of the physician`s condition to the patient.
— Fears that the privacy interests of AIDS victims, who are protected as medical patients in virtually every state, may be contributing to the growing number of AIDS cases. Some health-care professionals say they fear a lawsuit if they report an AIDS victim they believe will continue habits that spread the disease.
— Whether more extreme steps like blood tests should be implemented to detect the AIDS virus in high-risk groups such as homosexuals, bisexuals, prostitutes, drug users and possibly other segments of the population.
The CDC last week announced it would hold a public hearing this month on the question of whether states should require blood tests for schoolchildren and marriage licenses, for example.
There also is pending in Chicago a federal lawsuit filed on behalf of a woman who says she was bitten by an airline employee who had the AIDS virus. Though she has not been infected, the woman says she has suffered emotional fright over the possibility of contracting it because the virus is found in body fluids like saliva.
If she wins the suit and the airline is found liable for the actions of the boarding gate agent who allegedly bit her, legal observers say it could mean that employers may have to begin testing to protect themselves from such legal action.
The homosexual community, the largest single group affected by the epidemic, and civil rights activists are adamantly opposed to such testing because they fear that results will not remain confidential and that they will be used to discriminate in employment, housing and insurance.
All these concerns are being fueled by the growing alarm over the rapid spread of acquired immune deficiency syndrome, which destroys a person`s ability to fight infections and which, inevitably, is fatal.
Since the first case in the United States was identified in 1981, more than 30,000 Americans have been diagnosed as having AIDS. Health officials estimate that between 1 million and 3 million carry the virus, which is transmitted through bodily fluids such as blood and semen. Although it has been found in saliva, there are no known cases of transmission through saliva. It is estimated that 20 percent to 30 percent of those who carry the virus will eventually develop AIDS, and some officials believe that this percentage will increase as time goes on.
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In October, the CDC estimated that by 1991 more than 270,000 Americans will have been diagnosed as having AIDS and that potentially 12 million Americans will be infected with the virus.
The projections also show that in five years the disease will make a major departure from infecting only high-risk groups and that heterosexuals will account for one out of every 10 cases in 1991.
The male doctor at County Hospital, whose identity has not been disclosed, is believed to be the first physician in the nation to be suspended because of an AIDS diagnosis. The CDC says there are 1,200 infected health-care workers around the country, but there is no evidence of infection from a doctor or a nurse to a patient.
The Cook County Board suspended the doctor last Monday. But he was reinstated temporarily by separate votes of the hospital`s executive medical staff and a joint committee of hospital doctors, adminstrators and county board commissioners.
The county board, which has the final word, is scheduled to review the case Monday.
By week`s end, there were reports that patients were refusing treatment unless they were assured their doctors did not have AIDS.
Richard Epstein, a legal scholar at the University of Chicago, says he is troubled by the temporary reinstatement of the doctor without requiring him to disclose his condition to patients, based on a legal doctrine known as informed consent.
The doctrine, developing only since the 1960s, requires that before a patient undergoes a medical procedure, he first receive certain information about it, especially concerning its inherent risks. A central premise of the doctrine is that the patient has a paramount interest in protecting his body from invasion and has the freedom to decide what shall be done with his own person.
”I ask myself whether I would want to know whether I was being treated by a doctor who has AIDS, and the first thing I would want to know is what kind of treatment it is,” Epstein said. ”One has to ask the question whether or not there is any possibility of the inadvertent transmission of blood from one person to another.
”If the doctor is going to be in the burn room or the emergency room or in surgery, I don`t want him there. If he`s doing obstetrical procedures, I would be scared silly.”
A patient informed of the doctor`s condition would also be informed of the CDC`s stance that there are only the remotest risks involved and could make his own decision, Epstein notes.
Siegler, the physician ethicist at the U. of C., notes, too, that greater attention ought to be paid to rights of patients, but at the same time sees the risk of widespread discrimination against gay physicians and nurses. They may end up treating only other AIDS victims, for example.
”I am sensitive to the fact that the risk of discrimination is clearly there,” he said. ”I recognize this is a very real tension between two very substantial competing interests.”
Michael Callahan, a partner at a Chicago law firm that represents about 100 hospitals nationwide, said if a client hospital was to ask his advice, he would recommend that the hospital make disclosure a condition for continuing the medical staff privileges of a doctor with AIDS.
”The hospital is the one that has the assets on the line in a lawsuit,” he said. ”If you err, you err on the side of patient care. You require disclosure and let the patient decide. If the doctor doesn`t like it, he can take his surgery elsewhere.”
The CDC guidelines emphasize that that there are no known cases of transmission of the virus from infected doctors during surgical, obstetric or dental invasive procedures. They only require disclosure to the patient if, during the procedure, a patient is exposed to the blood of an infected health- care worker.
”The CDC has overall been very conservative in their statements and very cautious and have gone out of their way not to inflame passions, fears or concerns,” Siegler says, ”and it has data to support its statements.
”But there is a certain level of uncertainty that characterizes any new disease, and I think one has to be circumspect about as new and dangerous an epidemic as AIDS. You say everything you know about it and then you acknowledge that there may be things about this disease that we don`t know.
”Looking at the data, one is still concerned that there is no theoretical reason why such a transmission of the disease could not occur.”
Doctors note that privacy laws to protect the confidentiality of patients may be contributing to the disease`s spread.
They note that some drug addicts, diagnosed as having AIDS, state they have no intention to stop sharing dirty needles, which likely transmit the disease. Infected prostitutes will continue their sexual behavior without restriction and pregnant women who are infected may choose to have the child, even though the baby likely will be born with the disease.
Dr. Bernard Turnock, director of the Illinois Department of Public Health, said such behavior is ”tantamount to an individual threatening or doing bodily harm to another individual with some kind of weapon.”
Turnock said stronger public health or law enforcement measures may be needed to stop such a threat to the public health.
Epstein feels ”incarceration is not out of the question” and he said he believes the physicians` duty to the general public welfare outbalances the patient-doctor privilege.
Dr. Harvey Wolf, coordinator of supportive care at St. Elizabeth`s Hospital, which treats a large number of AIDS-infected drug addicts, said doctors find their duty confusing, however.
”In psychology, we have a duty to warn appropriate authorities if we know that a patient is going to harm somebody else,” he said. ”But with AIDS, there has been no firm ruling as far as we know. Everybody`s been wishy- washy about it, or afraid.”
Siegler notes that many of the concerns about AIDS may be considered by critics to be irrational in the cold light of scientific evidence, but he says they deserve another look, anyway.
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”Maybe, the public is not being irrational,” he says. ”Maybe it listens to all that the scientisits say and, nevertheless, still has real fears.
”Not every fear is an irrational fear, however, and it may mean that the public, through its deep concern, is being more responsive to the epidemic or responsive in different ways than the CDC or scientific experts.”