When the Surgeon Has HIV: What to Tell Patients About the Risk of Exposure and the Risk of Transmission

This Article explores the legal aspects of the dilemma facing an HIV-infected surgeon with respect to whether the doctrine of informed consent requires, or can require, disclosure of the surgeon\u27s HIV-infection under some circumstances. This Article then examines the nature of the risks associated with HIV as they affect patients during surgery. Next, this Article evaluates whether the risks are sufficiently material to require disclosure (or at least to present a jury question), and, in any event, whether state law can require such disclosure under the Americans with Disabilities Act of 1990 (ADA). In particular this Article examines the doctrine of informed consent as some states have applied it to HIV-infected surgeons and how other states that use a patient-centered standard of disclosure, as opposed to a physician-centered approach, may apply the doctrine. In the process of this examination, the Article considers two related but separate risks present when an HIV-infected surgeon performs surgery: the risk of exposure and the risk of transmission. The former risk involves the risk of blood-to-blood contact between an infected surgeon and a patient. The latter risk involves the risk of seroconversion or actual infection following exposure to HIV-infected blood