Nothing to Fear But Fear itself: HIV-Infected Physicians and the Law of Informed Consent

Abstract

On March 9, 1993, in the first ruling of its kind, the Maryland Court of Appeals declared that physicians and hospitals may be sued for failing to inform patients of a practitioner’s human immunodeficiency virus (HIV) status. What is more significant, these suits may be pursued even in instances when the physician has followed universal precautions and the patient did not contract the virus that causes acquired immunodeficiency syndrome (AIDS). The Maryland court addressed two central questions inFaya v. Almaraz. First, do HIV-infected physicians have a legal duty to inform their patients of their HIV status? And, second, can patients recover damages for fear induced by a physician’s conduct? While one finds numerous precedents that authorize actions to recover damages based purely on fear of disease and emotional distress, theFayacourt’s holdings on the issue significantly expand the scope of potential liability. Moreover, the court’s analysis of the informed consent and HIV-infected physician issue is incomplete, inconsistent, and represents an unjustified and unwise departure from traditional informed consent theory. It, and its progeny, may have widespread and dire repercussions.