Calming AIDS Phobia: Legal Implications of the Low Risk of Transmitting HIV in the Health Care Setting

Scientists are concluding that the risk of becoming infected with the virus that causes AIDS based on transmission from an infected health care worker is infinitesimal: in fact, only one health care worker has ever been documented as the source of HN transmission to a patient. This Article sets forth the medical evidence concerning this low risk and argues that legal decision making should incorporate these facts into its analysis of legal problems involving HN-infected health care workers. The Article analyzes three areas of such legal decision making: (1) employment and related credentialing of HN-infected health care workers; (2) liability of such workers to their patients for fear of contracting AIDS, including liability under doctrines of informed consent; and (3) insurance issues involving health care workers and HIV-related risks. In all three areas, the Article concludes that the law lags behind science and has not yet incorporated the facts about the low risk of HIV transmission into its treatment of HIV-infected health care workers. Until courts and legislatures recognize the scientific facts about the low risk of HIV transmission and incorporate them into cases and statutes, HIV-infected health care workers are likely to suffer unnecessary discrimination and other mistreatment.