Estate of Behringer v. Medical Center at Princeton

• Citation: 592 A.2d 1251,249 N.J.Super. 597
• Parties: , 55 Fair Empl.Prac.Cas. (BNA) 1145, 56 Empl. Prac. Dec. P 40,779, 1 A.D. Cases 1773, 2 NDLR P 151 ESTATE OF William BEHRINGER, M.D., Plaintiff, v. The MEDICAL CENTER AT PRINCETON, Dennis Doody, and Leung Lee, M.D., Defendants.
• Decision Date: 25 April 1991
• Court: Superior Court of New Jersey

Page 597

249 N.J.Super. 597

592 A.2d 1251, 55 Fair Empl.Prac.Cas. (BNA) 1145,

56 Empl. Prac. Dec. P 40,779, 1 A.D. Cases 1773,

2 NDLR P 151

ESTATE OF William BEHRINGER, M.D., Plaintiff, v. The MEDICAL CENTER AT PRINCETON, Dennis Doody, and Leung

Lee, M.D., Defendants.

Superior Court of New Jersey, Law Division,

Mercer County.

Decided April 25, 1991.

Roger Bernstein and Jennifer Braun admitted pro hac vice (Vladeck, Waldman, Elias & Engelhard, attorneys) and Karen Honeycutt, New York City, for plaintiff.

Brian Sullivan and John R. Heher, for defendants (Smith, Stratton, Wise, Heher & Brennan, attorneys) Princeton.

CARCHMAN, J.S.C.

Plaintiff, William H. Behringer, ¹ was a patient at defendant Medical Center at Princeton (the medical center) when on June 17, 1987, he tested positive for the Human Immunodeficiency Virus (HIV), and combined with Pneumocystis Carinii Pneumonia (PCP), was diagnosed as suffering from Acquired Immunodeficiency Syndrome (AIDS). At the time, plaintiff, an otolaryngologist (ENT) and plastic surgeon, was also a member of the staff at the medical center. Within hours of his discharge from the medical center on June 18, 1987, plaintiff received numerous phone calls from well-wishers indicating a concern for his welfare but also demonstrating an awareness of his illness. Most of these callers were also members of the medical staff at the medical center. Other calls were received from friends in the community. Within days, similar calls were received from patients. Within a few weeks of his diagnosis, plaintiff's surgical privileges at the medical center were suspended. From the date of his diagnosis until his death on July 2, 1989, plaintiff did not perform any further surgery at the medical center, his practice declined and he suffered both emotionally and financially.

Plaintiff brings this action seeking damages for: (1) a breach of the medical center's and named employees' duty to maintain confidentiality of plaintiff's diagnosis and test results, and (2) a violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., as a result of the imposition of conditions on plaintiff's continued performance of surgical procedures at the medical center, revocation of plaintiff's surgical privileges and breach of confidentiality. Defendant denies any breach of confidentiality and asserts that any action by the medical center was proper and not a violation of N.J.S.A. 10:5-1 et seq.

This case raises novel issues of a hospital's obligation to protect the confidentiality of an AIDS diagnosis of a health-care worker, as well as a hospital's right to regulate and restrict the surgical activities of an HIV-positive doctor. This case addresses the apparent conflict between a doctor's rights under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and a patient's "right to know" under the doctrine of "informed consent." This case explores the competing interests of a surgeon with AIDS, his patients, the hospital at which he practices and the hospital's medical and dental staff.

After a bench trial and consideration of the evidence presented, this court makes findings of fact and conclusions of law as set forth below.

To summarize, this court holds:

1. The medical center breached its duty of confidentiality to plaintiff, as a patient, when it failed to take reasonable precautions regarding plaintiff's medical records to prevent plaintiff's AIDS diagnosis from becoming a matter of public knowledge.

2. Plaintiff, as an AIDS-afflicted surgeon with surgical privileges at the medical center, was protected by the Law Against Discrimination. N.J.S.A. 10:5-1 et seq.

3. The Medical Center met its burden of establishing that its policy of temporarily suspending and, thereafter, restricting plaintiff's surgical privileges was substantially justified by a reasonable probability of harm to the patient.

4. The "risk of harm" to the patient includes not only the actual transmission of HIV from surgeon to patient but the risk of a surgical accident, i.e., a scalpel cut or needle stick, which may subject the patient to post-surgery HIV testing.

5. Defendant medical center, as a condition of vacating the temporary suspension of plaintiff's surgical privileges, properly required plaintiff, as a physician with a positive diagnosis of AIDS, to secure informed consent from any surgical patients.

6. The medical center's policy of restricting surgical privileges of health care providers who pose "any risk of HIV transmission to the patient" was a reasonable exercise of the medical center's authority as applied to the facts of this case, where plaintiff was an AIDS-positive surgeon. ²

I.

A.

Plaintiff, a board-certified ENT surgeon, developed a successful practice during his ten years in the Princeton area. His practice extended beyond the limited area of ear, nose and throat surgery and included a practice in facial plastic surgery. He served as an attending physician at the Medical Center since 1979 and performed surgery at the medical center since 1981.

In early June 1987, plaintiff felt ill. He complained of various symptoms and treated himself. Acknowledging no improvement, plaintiff consulted with a physician-friend (the treating physician). On June 16, 1987, plaintiff's companion arrived at plaintiff's home and observed that plaintiff was in distress. A call was made to the treating physician, and at approximately 11:00 p.m., plaintiff and his companion proceeded to the medical center emergency room, where plaintiff was examined initially by a number of residents and, thereafter, by the treating physician. The treating physician advised plaintiff that a pulmonary consultation was necessary, and a pulmonary specialist proceeded to examine plaintiff. A determination was made to perform a bronchoscopy--a diagnostic procedure involving bronchial washings--to establish the existence of PCP, a conclusive indicator of AIDS. The pulmonary consultant assumed that plaintiff, as a physician, knew the implications of PCP and its relationship to AIDS. In addition, the treating physician ordered a blood study including a test to determine whether plaintiff was infected with HIV--the cause of AIDS.

Plaintiff's companion has no recollection of specific information being transmitted to plaintiff regarding the HIV test, nor does she recollect any specific "counselling" or explanation being given to plaintiff about the significance, impact or confidentiality of a positive result of the HIV test. While the companion specifically denies any direct conversation between plaintiff and his doctors regarding the HIV test, the pulmonary consultant indicated that during his conversation with plaintiff, the pulmonary consultant discussed PCP as one of a number of possible diagnoses resulting from the test. Plaintiff was admitted to the medical center that evening.

Conforming to medical center policy, plaintiff executed a consent form granting to the pulmonary consultant the general consent to perform a bronchoscopy. In addition, plaintiff executed a special consent form granting specific consent to perform an HIV blood test. During the morning of June 17, 1987, plaintiff submitted to a bronchoscopy and returned to his room in the afternoon, where he was described as "sedated" and "out of it." Later that day, the pulmonary consultant reported to plaintiff that the results of the tests were positive for PCP, and he concluded that this information was new to plaintiff. Early that evening, the treating physician returned to plaintiff's room, and in the presence of plaintiff's companion, informed plaintiff that the HIV test was positive. Plaintiff was also informed that he had AIDS. Plaintiff's reaction, according to plaintiff's companion, was one of shock and dismay. His emotions ranged from concern about his health to fear of the impact of this information on his practice. Plaintiff's companion described her initial response as "who else knew?" The treating physician responded that he had told his wife; both plaintiff and his companion, close personal friends of both the treating physician and his wife, responded that "they understood."

It was readily apparent to all persons involved at this point that plaintiff's presence in the medical center was cause for concern. An infectious disease consultant and staff epidemiologist suggested to plaintiff that he transfer to Lenox Hill Hospital in New York or other available hospitals in the area. After inquiry, it was determined that no other beds were available. This concern for an immediate transfer appeared to be two-fold--to insure the best available treatment for plaintiff (the treating physician suggested that AZT treatment be considered) and to prevent plaintiff's diagnosis from becoming public. It is apparent that all parties involved to this point--plaintiff, the treating physician, the epidemiologist and plaintiff's companion--fully understood the implications of the AIDS diagnosis becoming a matter of public knowledge. A determination was made that plaintiff would leave the hospital and be treated at home. Plaintiff was discharged from the hospital on the afternoon of June 18, 1987. To minimize the significance of his condition, plaintiff walked out of the hospital rather than following the normal medical center practice of being wheeled out.

Plaintiff's concern about public knowledge of the diagnosis was not misplaced. Upon his arrival home, plaintiff and his companion received a series of phone calls. Calls were received from various doctors who practiced at the medical center with plaintiff. All doctors, in addition to being professional colleagues, were social friends, but none were involved with the care and treatment of plaintiff. All indicated in various ways that they were aware of the diagnosis. Statements were made either directly to plaintiff's companion or by insinuation, such as an inquiry as to whether the companion was "tested." Sh...