The AIDS epidemic has posed so many controversial ethical issues for dentistry that virtually all of the important problems of this book could be addressed in the context of bloodborne diseases—especially AIDS; its precursor infection, HIV; and hepatitis. In this chapter a number of cases focusing on ethical issues involving these diseases are gathered for a cohesive look at their complex problems. The issues exist in the context of compelling epidemiological data. By the early 21st century, an excess of 500,000 Americans—possibly as many as 200,000 more—were infected with HIV. Worldwide, the number is an overwhelming 40 million. In the United States, 20,000 people die from AIDS each year. Worldwide, the annual number is more than 3 million.
Although bloodborne pathogens can be transmitted between dental professionals and patients in either direction and even between patients, it is clear that these incidents are rare. When transmission does occur, it is more likely to be from patient to dental professional than the reverse. The number of HIV infections transmitted from patient to dentist is not precisely known. However, in a study involving more than 4,000 dental personnel, many of whom were either treating patients with AIDS or who were at risk for AIDS, only two dentists without risk behaviors were HIV positive.1 Since the beginning of the AIDS crisis, only five instances of possible transmission from dentist to patient have been reported, all from the same dentist.2 According to a 2003 report from the Centers for Disease Control and Prevention (CDC), there have been no reported cases of HIV transmission from dental professionals to patients since 1992 and no reported cases of hepatitis B virus (HBV) transmission since 1987.3 In addition, no cases of dental professionals transmitting hepatitis C virus (HCV) to patients have ever been reported. The risk of transmission in either direction exists when an exposure, defined as contact of blood or other body fluids with a nonintact skin or mucous membrane surface, occurs. A 2002 CDC study showed that of 208 participants in a surveillance system who reported a percutaneous exposure, none experienced a subsequent HIV infection, even though almost half of the exposures produced blood and 13 percent of the patients were known to be HIV positive.4 In addition, a decade-long review of percutaneous exposures reported that dental workers experienced an average of approximately three exposures per year, the number having steadily declined over the 10-year period.4
Despite these reassuring statistics, the fatal nature of HIV and other bloodborne infections raises so many ethical issues that such patients present what amounts to a review of the range of ethical issues of dentistry itself. This chapter includes cases on the duty of the dental professional to treat patients with bloodborne diseases, the duty of patients to disclose their status, the duty of the dental professional not only to disclose his or her infection status but also to be tested for infection, the problems of assessing risks and benefits in the context of bloodborne infections and the related consent issues, and finally, the issues raised by the economics of treating seriously ill patients with short life expectancies. Sometimes all of these issues converge in a single case, as in the following introductory example.
Ms Roberta Krebs, age 32, had been referred by a general dentist to Dr James Freeland, a periodontist, for the management of mild-to-moderate periodontitis. Ms Krebs was HIV positive and stated as much in her medical history.
Dr Freeland agreed to treat Ms Krebs but told her that there would be some additional costs because of increased infection control precautions. Ms Krebs expressed concern that the extra fees were discriminatory toward HIV-infected patients but said she accepted Dr Freeland’s views about the necessity for the increased costs.
Ms Krebs suggested that Dr Freeland submit all costs, including those for the infection control procedures, to her insurance company. This could be done under an “extenuating circumstances” category. Dr Freeland pointed out that the use of that category might jeopardize Ms Krebs’s confidentiality and lead to problems later. They therefore decided to submit the costs as a maintenance procedure. Dr Freeland felt uncomfortable with this submission and told Ms Krebs that in the event of any inquiry from the insurance carrier, he would have to disclose the facts of the situation to them. If the claim were denied, it would be handled out of pocket by Ms Krebs.
Dr Freeland also informed Ms Krebs that he treated patients on a selective basis and did not have to offer treatment to everyone who requested it. He told Ms Krebs that his main concern was that he would become widely known as a referral source for HIV patients. One reason for this attitude was that Dr Freeland employed a valued hygienist with decidedly negative views about treating HIV-infected patients. He could use another hygienist for the occasional HIV patient; however, this second hygienist might object if she were the only one expected to treat HIV-infected patients. Ms Krebs said she understood Dr Freeland’s position.
While discussing Ms Krebs’s situation with the referring dentist, Dr Freeland discovered that the other dentist did not know that Ms Krebs was HIV positive. Ms Krebs had not actually lied to him; the dentist had simply not asked her any leading questions. Dr Freeland hoped that the other dentist would continue to treat Ms Krebs and that Ms Krebs would not find out about Dr Freeland’s inadvertent breach of confidentiality.
The first task in a case as complex as this one is to begin identifying the ethical issues and distinguishing them from nonevaluative clinical issues. What are the core issues raised by this case?
Dr Freeland’s first assumption is that it is ethical for him to choose the patients he wants to treat. Is this an acceptable starting point for the discussion of HIV-infected patients in dentistry? That will be the issue in the cases of the first section of this chapter.
Ms Krebs told Dr Freeland about her HIV status while the dentist was taking her medical history. If she realized that her access to treatment might be in jeopardy with such a disclosure, would it not be in Ms Krebs’s interest to withhold this information? Whether patients have the moral right to withhold such information is the focus of the cases in the second section of this chapter. The link between the patient’s duty to disclose his or her HIV status and the dentist’s duty to treat HIV-infected patients will become apparent.
Also linked to the question of patient disclosure is whether dentists and other dental professionals have a duty to disclose their own HIV status to their patients. Being HIV positive poses some extremely small, but real, risks to patients. Moreover, because of the case of Kimberly Bergalis, the young Florida woman who was apparently infected by her dentist, patients are aware of this risk even if they may not adequately appreciate how small it is. Depending on how one answers the question of the duty to disclose, a related problem arises: whether dentists have a moral duty to be regularly screened for their HIV status.
Other issues can be identified in Dr Freeland’s relationship with Ms Krebs. Special treatment decisions will have to be faced. Dr Freeland says that there will be some additional costs because of increased infection control precautions. However, it is common practice to take universal precautions to control not only HIV but other possible infections as well. If the precautions are universal, is it not morally wrong of Dr Freeland to use special precautions in Ms Krebs’s case? Special calculations of risks and benefits will arise in such cases, issues that will be examined in the fourth section of this chapter.
Assuming that some special treatment costs are generated by the special precautions, Dr Freeland and Ms Krebs face the question of whether Ms Krebs’s insurer will cover the added procedures. The patient will absorb the risk of having to pay for these added costs, apparently to avoid telling the insurer about her HIV status. This raises some interesting consent issues. Is it up to the dentist or the patient to decide whether the protection of confidentiality is worth the risk of generating these extra costs? What does the patient have to be told as part of the consent process? The question of the possible allocation of the scarce pool of resources that could otherwise be used for other patients makes clear that this case also poses social ethical questions that deal with the principles of beneficence and social justice in allocating resources. Does Ms Krebs have a claim to additional resources for the special precautions? If so, should they be paid for out of the pooled insurance funds that would otherwise be available to benefit other patients? These social ethical issues are discussed in the final section of the chapter.
Dentists, like surgeons, are among the health professionals most exposed to blood and other bodily fluids that potentially could transmit HIV or other bloodborne diseases. When patients such as Ms Krebs in Case 67 make their status known to a dentist, it is natural to consider that one would prefer to treat other patients with whom the risk is less. Since the plagues of the Middle Ages, health professionals have faced the question of whether there is a duty to treat a patient in need when to do so would not be in the professional’s interest. Dentists, like other health professionals, face this issue with renewed urgency in the era of AIDS. The next case asks whether there is a moral duty for each dentist to treat his or her share of these high-risk patients.
Dr Morton Cross, the director of a large midwestern city dental health department, faced a chronic problem in getting dentists to treat HIV-infected patients. Some cities set up special clinics to handle the situation, but his city had no funds for that kind of solution. Instead he obtained support for an HIV ombudsperson, who took calls from HIV-infected prospective patients and tried to arrange treatment using a list of dentists known to be willing to treat such patients.
The system worked reasonably well, but it disturbed the city dental health director that such a system was necessary. He believed that, in most cases, treatment could and should be given in the private dental office; the risks of treatment should be more evenly distributed.
The American Dental Association’s (ADA’s) Council on Ethics, Bylaws and Judicial Affairs has held that “[a] decision not to provide treatment to an individual because the individual has AIDS or is HIV seropositive, based solely on that fact, is unethical.’’5 If the ADA’s position is morally correct and if the dentists in Dr Cross’s community abided by it, his problem would apparently be solved.
It is not clear what this duty means, especially in a context in which one’s colleagues are not carrying their fair share of HIV-infected patients. At its worst this could mean that the most conscientious dentist would take the most high-risk patients. If the risk of infection were greater than it is in the case of HIV, this could even mean that the most morally committed, conscientious dentists would be exposing themselves to significant risks and would, in extreme cases, eliminate themselves from the possibility of helping other patients.
In Dr Cross’s case, there are apparently enough dentists willing to treat HIV-infected patients that the burden is distributed sufficiently; no one dentist is completely overwhelmed. Nevertheless, fairness as well as good dentistry suggest that this is not the best arrangement. Is Dr Cross correct in assuming that, in most cases, treatment should be given in the private dental office? If so, then should he not be dissatisfied with the easier, if more unfair, efforts of the ombudsperson?
If Dr Cross intervened more aggressively, to the point that each dentist in the community agreed to treat his or her own HIV-infected patients and further agreed to take a fair share of the new patients, would that solve the problem? Would not certain dentists, because of their clientele and geographic location, still carry more than their share of HIV-infected patients? What plan should Dr Cross pursue?
One reason why it is claimed that dentists have a duty to treat HIV-infected patients is to prevent patients from withholding their HIV status. Case 43 in chapter 9 described a patient who withheld his HIV status. The following case presents a similar problem.
Mr Ted Fisher, aged 35, came to Dr Marilyn Wistar for treatment. His medical history was unremarkable, including his negative response to questions about bloodborne diseases, but his dental needs were considerable. Two carious teeth needed extraction and many restorations were indicated.
The first extraction was technically uneventful, but the socket did not heal properly. Dr Wistar requested a blood workup and a consultation from a physician, Dr Samuel Sharrington, who said that the reason the patient did not heal was his longstanding HIV infection.
This was not the first time that Dr Wistar had been lied to by an HIV-infected patient. It seemed to her that such patients felt their responsibilities regarding disclosure were different for dentists than for physicians.
Current standards of practice require that universal precautions be taken against transmission of infection during dental care. Mr Fisher’s withholding his HIV status from Dr Wistar then poses an interesting problem: If Dr Wistar is already using the precautions thought necessary to prevent HIV transmission, is there any use she could make of the information? If the information is not of any use, there is no reason why Mr Fisher should be expected to disclose his HIV status. On the other hand, controversy remains over the question of whether it is really true that the information is of no use. For example, in this case, if the HIV status changed the way the socket would heal, it could lead the dentist to make different clinical choices. What is appropriate care for the person without known HIV could in some cases be the wrong care for someone with different immune conditions or a different capacity to heal.
Dr Wistar discovered that her patient was HIV positive from the physician, Dr Sharrington. This raises the question of whether Dr Sharrington’s disclosure constituted a breach of confidentiality. Assuming that Mr Fisher did not want Dr Wistar to know his HIV status, we can presume that he would not have consented to the disclosure. Reflecting on the principles of fidelity and the promises made to patients about keeping information confidential, Dr Sharrington may have had a duty to not disclose his discovery. If Dr Sharrington is concerned about the risk to a colleague, this could be a case of a serious threat of bodily harm to a third party (the dentist) that would justify breaking confidence without the patient’s permission. On the other hand, if Dr Wistar is using universal precautions, it is hard to classify the risk as a “serious threat.” If Dr Sharrington wants to transfer the information to Dr Wistar in order to enable better clinical decisions, it is a potential disclosure for the benefit of the patient, in which case, based on the discussion in chapter 8, the patient’s permission would be necessary. Disclosure of patient information between colleagues is generally routine if the disclosure is needed to further patient care. However, the reason is that normally we can presume that the patient would consent to the disclosure. In this case, there is good reason to suspect that Mr Fisher would not have consented. This same reasoning would apply if Dr Wistar received a request from another dentist for a transfer of records so that Mr Fisher could receive further dental care.
The question of fidelity in the relationship between dentist and patient introduces another issue in this case. If the dentist-patient relationship is to be one based on fidelity, the obligation is not solely that of the health care professional; the patient also bears responsibility. The patient should disclose to the health care provider all information that he or she would reasonably need to know to provide care. There is every reason for Mr Fisher to realize that this information is potentially important, if not for the dentist’s self-protection, then at least to be taken into account inmaking clinical decisions about what constitutes appropriate care. If the patient fails to share such information, there is a breach of trust, just as there would be if the dentist broke the implied promise of confidentiality.
Some dentists may develop their own concern for knowing the HIV status of certain patients. In the following case a dentist wants this information but attempts to rely on a physician to obtain it. The physician is unwilling to cooperate.