Surgeons are typically afforded great latitude in choosing whether or not to operate on a patient. For example, Jehovah’s Witnesses generally eschew transfusion of blood products. If a Jehovah’s Witness needs a coronary artery bypass, you are not obligated to operate on this patient. You can, of course, send the patient to another surgeon who will accede to the restrictions. If you make the decision to cut, you must honor the patient’s religious request to avoid using blood products. But, if you’re not comfortable with the demand, you can Just Say No.

Further, you can generally refuse to operate on an elective patient because you don’t like him. If that is the real reason, and it’s not based on the fact the patient belongs to a particular protected class, such as race or religion, you’re typically on safe ground.

A plastic surgeon recently saw an overtly healthy patient who wanted an aesthetic procedure. She confessed she had chronic hepatitis C, but there were no obvious manifestations of liver disease. Her chronic condition was controlled. She just wanted to look better.

The surgeon agreed that a face lift would rejuvenate. One thing. He said he did not operate on patients with hepatitis C and would refer the patient to another surgeon who did.

Guess what happened next?

You are intuitive, indeed.

The patient called the office threatening to sue for discrimination.

Is this right? Do surgeons have an obligation to perform an elective surgery on a patient? Most of the time, the answer is no. But, in patients with some types of chronic infections, the answer may be yes.

Such a case was litigated to the US Supreme Court. In Bragdon v. Abbott, 524 U.S. 624 (1998), Sidney Abbott was HIV positive (but without AIDS) for eight years when she saw her dentist. She disclosed her HIV status on a patient intake form. Dr. Bragdon diagnosed a cavity; then explained his policy against filling cavities of HIV-infected patients in his office. He offered to perform the filling in the hospital. The dentist was not going to charge any additional fees for his work. Ms. Abbott would be responsible for any additional facility fees. The patient refused the offer and sued under the Americans with Disabilities Act (“ADA”).

The Supreme Court said that HIV positive status was a disability as understood by the ADA. But, that was not the end of the story. They also ruled that Dr. Bragdon could have legally refused to treat the patient if he reasonably believed, based on a credible scientific basis (even if that scientific basis differed from the prevailing medical consensus), that her infectious condition posed a direct threat to the health or safety of others. It was not enough that the dentist have a good faith belief that her condition posed a risk to others. It would have to be supported by scientific evidence. Bragdon was unable to supply this evidence.

By now, most doctors know that universal precautions are considered reasonably adequate to prevent transmission of diseases such as HIV and hepatitis. Further, most surgeons have safely operated on patients who were already infected – but the surgeon was not aware of this. Either the patient was ignorant of his/her serology status. Or the patient withheld this information.

Back to the plastic surgery patient. Based on Bragdon, a surgeon who refuses to operate on a patient solely because she is infected with hepatitis C would need to demonstrate that either (a) the procedure is unsafe for the patient; or (b) the scientific evidence suggests the risk for the surgeon or team is unreasonably high even with appropriate accommodations. Prong (b) would be an uphill struggle given the scientific evidence on disease transmission and CDC recommendations.

Here’s a different legal case – same year – where the facts are flipped around. Mauro v. Borgess Med. Center, 137 F.3d 398, 402 (6th Cir. 1998). A scrub tech, Mauro, was fired because he was HIV positive. The ADA permits discrimination if based on objective criteria promoting safety. Such action is not “discrimination on the basis of mythology.” Mauro’s duties occasionally required him to place his hands within a surgical wound. He admitted sometimes his gloves tore, and rarely, a needle stuck him. The court determined that even if this occurred uncommonly, it “could have catastrophic results and near certainty of death [for the patient].” I believe this ruling emerged prior to triple therapy for HIV. The court ruled the hospital acted within its rights when it terminated Mauro because “he was a direct threat.”

What should this surgeon do? Hard to say. Might make sense to call the patient and explain that he had a chance to review the CDC’s recommendations and speak with an infectious disease expert. Based on what he learned, he is prepared to perform the procedure. Let’s get it scheduled. This phone call would likely sidestep a trip to the courtroom.

To be clear, the question is, do you, as a surgeon, have to risk your life (and your family’s lives) operating on patients? The answer, of course, is no. But, if you refuse treatment to a patient with a chronic, stable infection, your refusal will need to be grounded in a scientific appraisal of risk versus benefit.

Let us know what you think.

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