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New York Times
Should a Hospital Tell Patients if a Surgeon Has AIDS?
December 12, 1989
LEAD: A lawsuit filed by a physician before he died of AIDS in June is forcing a court review of the rights of ill doctors to continue to treat patients and perform surgery without informing patients of their condition.

A lawsuit filed by a physician before he died of AIDS in June is forcing a court review of the rights of ill doctors to continue to treat patients and perform surgery without informing patients of their condition.

Dr. William H. Behringer, an ear, nose and throat specialist, sued the Princeton Medical Center, where he was a staff member, after he was diagnosed there in 1987 as having AIDS and learned, he said, that news of his illness had spread quickly through the community.

Dr. Behringer sued last year and died six months ago. His estate is continuing the legal action.

Although his condition did not prevent him at first from continuing his medical practice, the hospital asked him to give up surgery. When he refused, it required his patients to sign a consent form in which they said that they knew he had tested positive for the AIDS virus and that there was "a potential risk of transmission." De Facto Ban Charged

The refusal of patients to sign the form, lawyers for the physician's estate said in Superior Court here last week, made the form a "de facto prohibition" from surgical practice at the hospital. They have argued that the language in the form ran "contrary to all available scientific evidence" about the risks of a patient contracting the AIDS virus from a health-care worker.

The medical center denies any breach of obligations to the physician, saying that early disclosures of his condition were unauthorized and accomplished by "third parties over whom these defendants had neither control nor right of control."

The hospital said its decision to require the unusual consent form before allowing Dr. Behringer to perform surgery was "reasonable and proper." It said, too, that it had "an obligation to protect the interests of the patients it serves," Judge Philip S. Carchman, who is hearing the case without a jury, has been unable to elicit a standard against which to gauge the hospital's actions. He has shown some concern about the line he may be asked to draw between a patient's right to know and a physician's right to confidentiality about his own health.

During testimony Judge Carchman posed this question to Dr. Peter Alan Selwyn, an AIDS researcher and clinician at the Montefiore Medical Center in the Bronx, who was called as an expert witness by the plaintiff's lawyers:

"Wouldn't it be reasonable for a patient to want to know if a physician had AIDS before deciding whether to allow surgery?"

"I think they would want to know," Dr. Selwyn said. "But there's a distinction between that and whether they need to know."

Dr. Selwyn said there was no reported case of transmission of the acquired immune deficiency syndrome virus from a health-care worker to a patient. Confidentiality Issue Raised

He said the only special requirement that should be made regarding a surgeon with AIDS would be to determine if he was physically able to perform the proposed surgery.

The suit, a breach-of-contract action, accuses the hospital of violating its obligation to protect the confidentiality of the doctor, both as a patient and in his role as a member of the hospital staff. In addition the hospital is accused of violating New Jersey laws against discrimination by disclosing his condition and imposing conditions that made it impossible for him to continue his medical practice.

Dr. Behringer went to the hospital's emergency room in June 1987 complaining of fever, a respiratory infection, shortness of breath and a feeling of malaise. Examining physicians suspected AIDS, a diagnosis that was confirmed by a bronchoscopy - the taking of lung tissue - and a blood test.

He was in the hospital from June 16 to 18, but before he was released, news of his condition is reported to have spread through the hospital and the community.

"Telephone calls came to his home and his office, said Jennifer Braun, one of the lawyers representing the estate. "His secretary heard about it before he was released."

Ms. Braun said Dr. Behringer believed he had contracted the disease when he performed an emergency tracheotomy on an infected patient while not properly masked. Infection is thought to have occurred from the patient's blood and saliva.