In Melo v. Barnett,1 The Supreme Court of Kentucky recently held that disclosure of an employee’s HIV status in compliance with the state’s Workers’ Compensation Act did not violate the employee’s right against such disclosures. The state’s high court agreed with the trial court’s grant of summary judgment to the defendant medical provider, finding that the trial court did not commit reversible error in allowing the medical provider to forward the results of an HIV test to the employer.
Dentists who are involved in treating a worker’s injuries should be certain that the law in their state clearly allows the disclosure of HIV status before disclosing it.
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BACKGROUND
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During the course of his employment as a veterinary assistant, Steven Barnett was bitten by a cat. An infection developed. Mr. Barnett sought medical assistance at a local hospital where, on admission, he signed a consent form authorizing the release of his HIV-test results to his employer if his injury occurred on the job. The treating physician diagnosed Mr. Barnett with cellulitis and prescribed antibiotics. However, Mr. Barnett’s test also indicated that he was HIV-positive. Since Mr. Barnett already was undergoing antibiotic treatment for his HIV, the treating physician contacted an infectious disease specialist, Dr. Julio Melo. Dr. Melo coordinated Mr. Barnett’s cellulitis treatment with his HIV treatment.
In accordance with Kentucky’s Workers’ Compensation Act, when the employee’s injury is compensable, the provider of medical services must submit certain forms to the employer, including a statement of services provided. Furthermore, the injured employee must sign certain waivers and releases. These waivers, together with the statement of services, allow the medical provider to recover from the employer for services rendered to the employee.
Mr. Barnett’s employer became aware of his HIV status for the first time on receipt of this statement of services and Dr. Melo’s consultation notes. Mr. Barnett closely guarded his HIV status and quit his job soon afterward, citing an uncomfortable office environment. He then filed suit against Dr. Melo for damages resulting from a breach of medical confidentiality and unreasonable violation of privacy.
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COURT OPINION
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The Supreme Court of Kentucky determined that the trial court properly granted summary judgment to Dr. Melo because, by seeking the benefits of the Kentucky Workers’ Compensation Act, Mr. Barnett "placed his medical condition at issue."2
The court found that this case did not present a conflict between the statutory duty of the physician to protect the privacy of the patient and the requirements of the state’s workers’ compensation act. As written, the Kentucky Workers’ Compensation Act requires a waiver of medical information reasonably related to the condition. Thus, the court concluded that Mr. Barnett’s HIV status was reasonably related to his injury.
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EMPLOYING, TREATING HIV-POSITIVE PEOPLE
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The decision in Melo v. Barnett provides an opportunity to revisit the legal issues related to HIV in the workplace. Both dental office employees and dental patients who are HIV-positive are protected from discrimination so long as they do not pose a direct threat to third parties.
In School Board of Nassau County, Florida v. Arline,3 the Supreme Court adopted this direct threat exception to the protection afforded to handicapped people under the Rehabilitation Act of 1973. The school board fired Gene Arline, one of its teachers, after she suffered her third relapse of tuberculosis. It gave no substantial reason for the termination, referring only to the reoccurrence of her tuberculosis. During her two previous relapses, the school board had suspended her with pay until the tuberculosis went into remission.
The Supreme Court remanded the case for further inquiry into the direct threat of Ms. Arline’s tuberculosis on her students and the reasonable accommodations the school board could make. The direct threat test involves a determination of the following four factors: the nature of the risk, the severity of that risk, the duration of the contagious period and the probability of transmission. After making these findings, the court must then determine whether the employer could reasonably accommodate this disability. Only if no reasonable accommodations can be made will the employer be legally able to terminate employment. Otherwise, the employer must make those reasonable accommodations.
When the Americans with Disabilities Act (AwDA) was adopted in July 1990, it relied heavily on the Rehabilitation Act for its definition of disability and on the Arline case for its articulation of the direct threat test. In Bragdon v. Abbott,4 the Supreme Court held in favor of the protection of HIV-positive people under the act. It also required an objective assessment of the direct threat of treating an HIV-positive patient before providing a defense to the defendant.
When Sidney Abbott went to Dr. Randon Bragdon’s dental facility, she disclosed her HIV-positive status before her dental examination. Ms. Abbott’s HIV as yet had not manifested its most serious symptoms. During the examination, Dr. Bragdon discovered a cavity, and he advised Ms. Abbott of his policy against treating caries in HIV-positive patients. However, he offered to perform the dental treatment at a hospital with no added fee.
The Supreme Court determined that HIV, from the moment of infection, constitutes a disability under the AwDA. Moreover, the court invalidated the subjective approach argued by the dentist, who sought to introduce his good faith, professional determination of a threat as sufficient to provide him a defense under the act. Instead, the court required an objective assessment of the reasonableness of Dr. Bragdon’s actions.
For dentists presented with an HIV-positive patient, their subjective assessment of a direct threat to them or their patients will not be legally sufficient to deny treatment. Rather, the court required an objective, scientific bases that demonstrates significant risk. This objective basis, however, must be known to the dentist at the time of the incident.
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CONCLUSION
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The Kentucky Workers’ Compensation Act had specific provisions allowing the treating physician to disclose the HIV-positive status of the employee if it was reasonably related to the injury to be compensated. As a result, the court found that when Dr. Melo disclosed the HIV status, there was no violation of law. Other states confronted with this issue may not follow Kentucky. Accordingly, dentists who are involved in treating a worker’s injuries should be certain that the law in their state clearly allows the disclosure of HIV status before disclosing it. At a minimum, disclosure likely will trigger a lawsuit with its resulting costs.
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BACKGROUND
COURT OPINION
