The Ethical Dilemma of HIV Infected Surgeons

Margaret Somerville
Originally published as:
"Ethical dilemma of doctors with HIV:
Should infected surgeons be allowed to operate?
Should patients know?",
The [Montreal] Gazette, February 15, 2004, IN8
© Margaret Somerville
Reproduced with Permission

The case of Dr. Maria Di Lorenzo, the HIV-infected paediatric surgeon at Sainte-Justine Hospital requires complex ethical analysis, if we are to avoid an ethically wrong response.

Should she have given up surgery? Should the hospital have refused to allow her to operate? If not, what safeguards should have been in place? Should the consent of the parents to an HIV-positive surgeon operating on their child have been obtained?

Risk is an important, ethically relevant consideration in answering these questions.


All operations and all surgeons pose risks to patients, so the issue is not one of eliminating all risks. It is, rather: Which risks must not be run? Which may be run only with safeguards? Which only with the consent of the patient and which without? And in which category of risk is a surgeon's HIV-positive status?

Seriousness and probability of risk matter ethically. The higher they are the less justified ethically we are in running the risks.

Death is the most serious risk and AIDS is still [at that time] a fatal condition.

The probability of a patient contracting HIV from an HIV-positive surgeon is very low, but not zero. There are only two recorded cases in the world and both involved the highest risk surgery - that where surgeons cannot always see their hands. The risk is much lower for "visible hands" surgery and possibly non-existent for a surgeon being treated with anti-retroviral drugs who has no detectable virus load. And the risk can be kept very low by proper supervision, counseling and, if required in individual cases, restrictions placed on the surgeon. Sainte-Justine may have failed in these regards.

So would banning all HIV-positive surgeons be over-reacting? Is the risk acceptable when compared with other risks or is such comparison invalid? For instance, there is a much greater risk of death from general anaesthetic. But that risk is not avoidable, HIV is  a non-infected surgeon could operate. Does that make a difference? And other fatal, avoidable risks, for instance, hospital-generated infections don't elicit the same response.

Are parents' refusals of an HIV-positive surgeon operating on their child, a response to AIDS itself, rather than the level of risk? HIV infection elicits dread and social stigmatization still. As dread increases tolerance for the risk that elicits that dread decreases. Or is the reaction to HIV-positive surgeons primarily emotional (very primitive emotional responses to infectious disease may be hard-wired into our brains), rather than rational? Emotions and feelings can provide ethical insights, but the judgments to which they lead need validating.

If surgeons who are HIV-positive should not operate, should all surgeons be tested? If so, how often  a negative test is not a future guarantee? Certainly, surgeons who have an accident that could transmit HIV should be tested and, if positive, the patient immediately started on treatment.

And if all surgeons should be tested, should all patients? Surgeons are at much greater risk (although still small) of contracting HIV from patients than vice versa. Indeed, Dr. Di Lorenzo reportedly became infected from operating on an infected baby.

Is any risk of a physician transmitting disease to a patient ethically unacceptable? What view and values does an affirmative answer reflect? That physicians must be "pure" (not "contaminated", not "unclean") to restore health? That smacks of discrimination, stigmatization and breach of ethics. The concept of the "wounded healer" recognizes the physicians best able to heal have personally experienced illness and suffering. Indeed, Dr. Di Lorenzo's colleagues testify that she was an outstanding surgeon and a model of care and compassion for her patients.

Is it relevant the risk arises from the surgeon herself rather than extrinsic circumstances? In operating, does she breach a physician's primary obligation to "first do no harm? Does she breach the patient's trust? What other personal, risk-creating factors would mean a surgeon should not operate or should at least disclose? A "boozy" party the night before? Only two hours sleep? Ageing eyesight? The first unsupervised operation of that kind they perform?

Is the response in Dr. Di Lorenzo's case coloured by the fact that children were the patients  a vulnerable group who did not decide for themselves which risks to run? Or are we, as parents or just citizens, using our fears for children as carriers of our fears for ourselves, because we don't want to admit to unreasonable or discriminatory fears?

Informed consent…

Assuming that the level of risk is such that, with appropriate safeguards, an HIV-positive surgeon may ethically undertake some surgery, must patients (or their parents, where children are involved) be told of the surgeon's HIV-positive status to give informed consent to surgery?

Informed consent requires patients to be given the information that a reasonable person in the same circumstances would want in making a decision. That must include disclosure of all "material risks"  the risks that a reasonable person would want to know  and full, open and honest answers to patients' questions about risks that are not material, that is, risks that would not otherwise need to be disclosed.

So is a surgeon's HIV-positive status a material risk? It is hard to say because the risk is very, very small, but it is very serious  a risk of death, which some courts say must always be disclosed. And failure to answer honestly a patient's question about a surgeon's HIV-positive status would negate consent.

Sainte-Justine's recommendation that everyone operated on by Dr. Di Lorenzo should be tested for HIV, supports the view that the risk is material. If there was no material risk, why test? But is the testing recommended  and the risk material - only because the hospital could not reassure itself proper safeguards had been respected? Is the risk not material with such safeguards, but material without them? Or is it an example of "defensive medicine"  acting on legal advice so as to avoid liability to any patient who, in the future, happens to become HIV-positive from some other source?

Ethicists disagree about HIV-positive surgeons. Some argue that surgery is the most intimate intervention one person can make on another and surgeons must live up to the highest standards of trust. They believe that requires refraining from operating. Others disagree. Rationally we know that with proper safeguards, the risk of transmitting HIV is extremely small.

My view at present is that with proper safeguards (supervision, counseling and appropriate restrictions), ethically and legally, HIV-positive surgeons may operate and need not disclose their HIV-positive status to patients, unless the patient directly or indirectly indicates that information is material to them in deciding on surgery.