Guest Column
When a partner is at risk from HIV-positive patient
By Sue Dill Calloway, RN, MSN, JD
Director of Risk Management
Ohio Hospital Association
Columbus
What can a health care provider legally do if a patient is HIV-positive or tests positive for an STD and wants to warn the patient’s spouse or partner?
This question is not addressed by federal law. Therefore, the states may enact legislation in this area. Most states have passed laws on this issue. For example, Ohio — like many other states — has a specific law that allows a physician to disclose that information to a spouse, sexual partner, or a needle-sharing partner without the patient’s permission. Usually, we advise the emergency department physician to tell the patient they will inform the spouse and it would be better coming from the patient.
All states have a reportable disease reporting law. Most states require the health care providers to report all sexually transmittable diseases to their state health department. The state health department conducts follow-up and attempts to locate any sexual contacts who might have been infected.
The issue of HIV-positive patients is a more difficult one, and this led many states to pass a specific state law that would address the issue. Therefore, every nurse and health care provider should be familiar with their state’s specific statute. Nurses who are unfamiliar with their state’s law should contact the facility’s risk manager or in-house counsel for information on their state’s law.
Some states prosecute as a felony
Many states have a criminal law in place that makes it a felony offense for anyone who knows they have AIDS to have sexual intercourse with anyone else without disclosing this fact. Ohio has a state law, ORC 3701.243, titled Confidentiality of Information about HIV tests, which states that the results of an HIV test, or the identity of an individual on whom a test is performed, or who is diagnosed as having AIDS or an AIDS-related condition, may be disclosed to his spouse or any sexual partner.
This issue arose recently in the emergency department where I work. The patient had only been married for two weeks and he had not told his wife he was HIV positive. The patient informed the physician he did not want his wife to know. The physician sat down with the patient and explained that under the Ohio law, he was legally permitted to disclose this information to the patient’s spouse. The physician explained that if the patient did not tell his wife, the physician would. The physician suggested to the patient that it might be better if the wife heard it from him. The patient concurred and told his wife he was HIV positive.
Ohio law also provides immunity to any person who acts in good faith with this section of the law. The physician or health care provider is not liable for civil damages if a lawsuit is brought. Ohio law also states that a health care provider will not be liable for failure to disclose the information in this situation.
Sources
For more information about liability issues of HIV disclosure, contact the following:
• Sue Dill Calloway, RN, MSN, JD, Ohio Hospital Association, 155 E. Broad St., Suite 15, Columbus, OH 43215. Telephone: (614) 221-7614. E-mail: [email protected]
The Association of Women’s Health Obstetric and Neonatal Nursing has a position statement titled HIV/AIDS Testing and Disclosure. Single copies are free for members with a $4 shipping and handling charge, and $15 for non members plus a $4 shipping and handling charge. To obtain a copy, contact: A1 Distribution, 2000 L St. N.W., Suite 740, Washington, DC 20036. Telephone: (800) 354-2268 or (202) 261-2400. E-mail: [email protected].
The American Nurses Association (ANA) has a position statement on guidelines for disclosure to a known third party about possible HIV infection. To obtain a copy, contact the ANA, 600 Maryland Ave. S.W., Suite 100 W., Washington, DC 20024. Telephone: (800) 274-4ANA or (202) 651-7027. E-mail: [email protected]. Web site: www.nursingworld.org.
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