Academic journal article
By Bobinski, Mary Anne
Albany Law Review , Vol. 61, No. 3
As fragile living beings we walk the world at risk for injury. Human society is organized--in theory and in fact--to reduce the risk of harm. Social safety nets reduce the risk of starvation. Armies and police forces reduce the risk of violent death from war or anarchy. We use law to reduce the risk of harm as well. Criminal and tort rules deter and punish conduct that creates a risk of harm to others. Elaborate regulatory regimes attempt to reduce the risks of human activities ranging from the development of new pharmaceuticals to the safety of the industrial workplace.(1)
Our systems of risk identification and reduction have become so elaborate that we--those who are the beneficiaries of these protections--sometimes complain. Not all of us want to wear seatbelts or motorcycle helmets.(2) We grumble at a legal system that requires vendors of coffee to provide detailed warnings regarding the obvious risks of consuming hot beverages.(3) We balk at applying coercive social policies against groups, even when those policies might be supported by statistically greater probabilities of harm. Pregnant women present unique risks of harm to their fetuses, for example, yet we hesitate to apply coercive social controls to their conduct.(4)
Our resistance to some types of legal regulations designed to reduce risk suggests that we value more than safety alone. In some contexts, we are willing to trade a risk of harm for some other valued good. We can explore the tension between our interests in risk reduction and our other values and concerns by examining where and how we make decisions about risk. What risks are significant enough to warrant legal intervention? What values are sufficiently strong to outweigh our interests in reducing risk? How will the risk be reduced? Will creation of the risk be prohibited? Or will we be given information about the risk and permitted to decide whether to accept it?
This Symposium's analysis of the past and future of our responses to the AIDS epidemic can illuminate our understanding of the legal response to risk. The last fifteen years of the AIDS epidemic have given us ample opportunities to study social and legal responses to health threats in the context of an apparently new and frightening risk of harm. The epidemic has sparked a wide range of social and legal policies designed to minimize the risks of HIV infection.(5) As demonstrated elsewhere in this Symposium issue, courts and legislatures have focused on the use of criminal, tort, and public health law to reduce perceived risks. This Article focuses on the process of risk identification and reduction in the relationship between patients and physicians, nurses, and other health care professionals. It explores whether and how laws prohibiting discrimination against persons with disabilities--which reflect important social values--have constrained efforts to eliminate the risk of HIV transmission between provider and patient. The Article also examines whether the legal response to HIV is consistent with the legal response to other types of risks in the provider-patient relationship.
In Part II, the Article summarizes current research attempting to assess and to quantify the risk of HIV transmission in the health care treatment relationship.(6) These studies indicate that there is a risk of HIV transmission from patient to provider and from provider to patient, though there is no agreement on the precise probability of harm. In Part III, the Article focuses on the parallel development of two seemingly inconsistent lines of decisions under the Americans with Disabilities Act (ADA).(7) One line of cases, decided under the Act's employment provisions, permits employers to discriminate against HIV-infected health care workers on the theory that they present a "direct threat" to the health and safety of others, especially patients.(8) The second line of cases, decided under the Act's public accommodation provisions, prohibits health care providers from discriminating against HIV-infected patients because those patients do not present a "direct threat" to providers. …