Protecting the Public

Most western countries do not bar surgeons carrying the HIV virus from continuing to operate, nor are they required to divulge their condition to patients. But some countries do force HIV carriers to abandon surgery.

In the year 2002, the U.K. formulated clear rules prohibiting health system employees with viral hepatitis or HIV from carrying out medical procedures during which their blood could come into contact with the patient's tissues.

In Spain, a case came to light in 2002, where a gynecologist infected the mother - though not the infant - with HIV, while performing a caesarian section. The doctor announced that he was eschewing surgery, though there were no grounds in law for him to do so. The chief of the medical association ruled that "any doctor who may endanger patients must cease working."

France has no law requiring doctors with HIV to stop operating, nor is there an obligation to advise patients of their condition. But after an orthopedist infected a patient injured in the hand during surgery, in 1997 the French umbrella organization of doctors recommended that in any case of a doctor suffering injury while giving medical care, the doctor must be tested for HIV. "It is the moral duty of the doctor to stop operating," the chief of the organization stated at the time, and recommended that disease-carrying doctors assume administrative tasks or go into research.

Throughout most of the United States, surgeons carrying HIV may continue to operate and do not need to disclose their condition to patients. But a series of civil suits did lay down the doctor's duty to advise surgical patients of their status. In 1994, for example, a surgeon with HIV appealed to court after the hospital employing him ordered him to advise patients of his condition prior to surgery. The doctor initiated a civil suit against the hospital for injury to his constitutional rights. But the court rejected his claim and ruled that the public good prevailed over his right to a livelihood.

In another case, a Maryland surgeon with HIV sued a hospital that forbade him to conduct invasive procedures. Here too, the court found that infection could not be completely ruled out, and that the rights of the patient prevailed over the doctor's right to continue to operate.

(Ran Reznik and Roi Beit Levy)