Reverse Informed Consent: the Unreasonably Dangerous Patient

Samuel Oddi, University of Akron School of Law

Abstract

Iatrogenic injuries --those caused by health care professionals (HCPs) in the course of treating patients--raise significant ethical, legal, and public policy issues. With the advent of the AIDS epidemic, these issues become even more difficult when the iatrogenic injury results not from the patient's having received treatment below the professional standard of care (which is the usual grist for the malpractice mill) but from an infectious condition of the HCP.

Considerable public attention has been directed to patients who have been exposed to the risk of AIDS by HIV-positive HCPs. It is difficult to be unmoved by the tragic example of Kimberly Bergalis and five other patients who contracted AIDS after being treated by a dentist who died of AIDS shortly thereafter. The public outcry of “Physician, heal thyself" was immediate, as were governmental proposals for dealing with the perceived problem. Responses from various interest groups were equally swift and effective. Despite the flood of proposals and recommendations, however, there appears to be an absence of political will to address the problem; the task therefore is thrown to the legal system. In this instance, the law of torts will be asked to provide the theories of recovery for patients who are infected with HIV by HCPs.

The doctrine of informed consent likely will be advanced to address the issue of recovery. A critical concern of HCPs is that, if they are required to inform patients of their HIV status, they not only will be subject to liability but also will be placed in a position of “moral jeopardy,” when such disclosure will result in the probable loss or severe restriction of their professional lives. Issues relating to the liability of HCPs to patients are addressed in Part II of this Article.

The converse of the situation discussed above--HCPs infected by patients--has not received the same degree of notoriety, although the probability of patient-to-physician infection appears to be significantly greater. The exposure of HCPs to HIV-infected patients should accelerate with increases in the number and geographic distribution of people with HIV disease (ranging from asymptomatic HIV infection to full-blown AIDS).

Obviously HCPs consent to treat their patients. A patient's potential liability for exposing an HCP to HIV, however, should be based on whether the HCP's consent was informed and whether the HCP assumed any risk associated with treatment knowingly and voluntarily. Accordingly, situations in which HCPs know that patients are infected should be distinguished from situations in which they do not or cannot reasonably know.

In an action by an HCP against a patient, the central issue is whether a duty should be imposed upon patients to inform HCPs of their infectious status. Imposing such a duty on patients would extend the scope of tort law well beyond that presently recognized under the doctrine of informed consent. If tort law imposes a duty upon patients to inform HCPs of their HIV status, then an appropriate standard must be adopted to determine if a breach of that duty has occurred. A causal connection must then be established between the patient's failure to inform and any injury (particularly infection) suffered by the HCP. The causation issue in a patient-to-HCP infection case is considerably more difficult than in a traditional informed consent case, in which the analysis takes the form: But for the failure of the HCP to obtain informed consent, would the patient have consented to the treatment? In the reverse situation (in which a patient's failure to disclose injures an HCP), it must be established that the HCP would not have undertaken the procedure (raising significant ethical and legal issues) had the patient disclosed his or her condition, or that the HCP would have employed a higher degree of care had the patient disclosed (raising issues of the HCP's ability to do so). Part III of this Article will address these issues in the context of the proposed doctrine of reverse informed consent.

Part IV will examine the limitations of the civil liability system in applying tort theories that would impose such reciprocal duties to disclose on HCPs and patients. This Article considers whether the goals of tort law-- compensation and deterrence--can be achieved effectively and whether public or private measures may provide more effective--or at least complementary-- safeguards in the public interest.

The general issue of whether HCPs and patients should have duties to warn one another of infected status is, of course, not limited to HIV disease, although HIV is the most topical instance. Other infectious and contagious diseases are considerably more virulent--for example, hepatitis virus B (HBV) and tuberculosis (TB) (especially a treatment-resistant strain that currently is on the increase in certain populations). This Article attempts to deal with the more generalized issue of exposure of patients and HCPs to material risks associated with the infectious, contagious, or otherwise unreasonably dangerous physical conditions of the other.