FEU-NRMF

INSTITUTE OF MEDICINE - Kimberly Bergalis claims that she acquired AIDS from her
Bioethics 2 dentist after a tooth extraction, making him break the
ethical principle of non-maleficence. Most medical
CASE: KIMBERLY BERGALIS procedure can help a patient improve the quality of health
but most of them possess certain risk that can harm the
Historical Background patient. In this case, Dr. Acer caused harm by infecting
• In 1991, a young Floridian woman named Kimberly Bergalis Bergalis with HIV
died as a result of AIDS. She is recorded as the first person in
history to have been infected by a healthcare worker, Dr. David • Negligence
J. Acer, gay dentist with AIDS. - Negligence is a failure to take reasonable care to avoid
• Ms. Bergalis stated she was a virgin who never took IV drugs or causing injury or loss to another person.
received a blood transfusion. She was born in Tamaqua, Pa., - Since Dr. Acer was the known caused for Bergalis’ AIDS
and moved to Florida at the age of 10 with her family. Her father infection, he as a health care provider did not practice
is the city finance director of Fort Pierce. Her mother, Anna, is safety precautions that could have avoided the
a public health nurse and, in 1989, was the first to suspect that transmission of AIDS infection, not just to Bergalis, but also
her daughter was seriously ill when Kimberly came home on a his other patients.
vacation from college.
• She insisted that the only instance in which she could have been • Justice
exposed to HIV was through her HIV-positive dentist, during a - The principle of justice could be described as the moral
December 1987 procedure to have her molars removed. Dr. obligation to act on the basis of fair adjudication between
David J. Acer knew he had been diagnosed with AIDS in 1986 competing claims. As such, it is linked to fairness,
before performing the procedure and died in September 1990. entitlement and equality.
• The CDC concluded that Ms. Bergalis, as well as 5 other - In health care ethics, this can be subdivided into three
unrelated patients, had contracted the same strain of HIV from categories: fair distribution of scarce resources
Dr. Acer. CDC-conducted tests of DNA sequencing showed that (distributive justice), respect for people’s rights (rights
there was a high correlation between the strain of HIV carried based justice) and respect for morally acceptable laws
by Ms. Bergalis and the others, and that of Dr. Acer. Later (legal justice)
review of the CDC tests strengthened the case that Bergalis' HIV - Justice for both parties was not achieved. Dr. Acer died
infection was linked to Acer. before he could defend himself in the lawsuit given to him.
• The late Dr. Acer is the only health care worker anywhere He was also discriminated for the fact that he had AIDS. As
known to have infected even one of his patients. Because of for Bergalis, she was infected by the disease with malice
publicity about Dr. Acer and his patient Kimberly Bergalis, who accusations that she lives a promiscuous life. Once her
died of AIDS in 1991, legislators and public health officials have claim that her dentist infected her with HIV became
come under enormous pressure to restrict infected health-care significant, the CDC and some of the legislation didn’t take
workers. action immediately.
• To settle a suit, Ms. Bergalis collected $1 million from Dr. Acer's
estate and an undisclosed sum from his insurance company. • Veracity (Truth-telling)
• Before Bergalis died at age 23, she and her family waged a - Veracity is the principle of truth telling, and it is grounded
crusade for laws mandating that all medical workers get AIDS in respect for persons and the concept of autonomy. In
tests and be forced to tell their patients if they were infected. order for a person to make fully rational choices, he or she
Her father, George, argued that "someone who has AIDS and must have the information relevant to his or her decision.
continues to practice is nothing better than a murderer." Moreover, this information must be as clear and
• Before Dr. Acer died of AIDS in 1990, he wrote an open letter to understandable as possible.
his patients saying: "I am a gentle man, and I would never - It relates more generally to professional ethics and the
intentionally expose anyone to this disease. I have cared for basic expectation that we are honest in our professional
people all my life, and to infect anyone with this disease would interactions. This particular application of veracity is
be contrary to everything I have stood for." apparent in a broad range of issues including professional
relationships, documentation standards, billing practices,
Ethical Issues Raised risk management, peer review, community relations, and
• Beneficence and Non-Maleficence regulatory reporting, and compliance.
- Beneficence is action that is done for the benefit of others. - For this case, Dr. Acer made a choice of not telling his
Beneficent actions can be taken to help prevent or remove condition to his patient perhaps thinking of the minimal
harms or to simply improve the situation of others. risk of transmission in his line of work and perhaps was
- Non-maleficence means to “do no harm”. This principle, thinking of the stigma his condition affect his career. But
however, offers little useful guidance to physicians since by not being honest with the patient, his patients are
many beneficial therapies also have serious risks. The unknowingly at risk of being infected even at minimal
pertinent ethical issue is whether the benefits outweigh possibility.
the burdens.






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• Autonomy • Bergalis’ misfortune set in motion much discussion about HIV
- In medical practice, autonomy is usually expressed as the and hepatitis safety in health-care settings. U.S. Congress
right of competent adults to make informed decisions considered various legislative proposals regarding standards of
about their own medical care. The principle underlies the health care and the CDC set about devising advisory
requirement to seek the consent or informed agreement recommendations for the practice of health-care professionals
of the patient before any investigation or treatment takes with HIV-related conditions.
place. The principle is perhaps seen at its most forcible
when patients exercise their autonomy by refusing life- • At the 1991 Congressional Hearing, Bergalis' father, George,
sustaining treatment. went further and plainly said of health-care workers with HIV:
- Informed consent was not given to Bergalis as a disclosure "Someone who has AIDS and continues to practice is nothing
of Dr. Acer’s conditions making her lose the autonomy if better than a murderer." In his view, therefore, his daughter
she wishes to continue to be his patient knowing the risk was murdered, and the failure by government and health
she might be subjected to. organizations to act against health-care workers with HIV
amounted to nothing less than complicity in murder.
Developments
Testing Health Care Workers for HIV Patient Protection and AIDS Activism
• 1989: Kimberly Bergalis’ mother noticed her declining health • From the beginning to the end the impetus and moral of her
and was subsequently diagnosed with AIDS. Because Bergalis story was fear. Her understanding of her illness and her
appeared to have none of the usual risk factors for HIV projected institutional reforms suggested that there were
infection, her illness was of some epidemiological interest. hidden health-care workers whose reckless performance would
infect persons entirely outside the risk groups to which HIV-
• Bergalis' dentist, David Acer, had apparently known for a related conditions have been morally and culturally confined.
number of years that he had an HIV infection, but did not tell
any clients about his condition. Bergalis and others saw such • It is in fact important to find ways to free health-care relations
silence as an arrogation of their privilege to choose the risks to from the fear of HIV infection—for both patient and provider—
which they would voluntarily submit. Apart from the issue of but routine, even mandatory HIV testing clearly cannot deliver
disclosure to patients, Bergalis and her family also frequently what is being demanded in this regard. Bergalis' role as virgin
expressed anger that there was no policy barrier to practice by and martyr dedicated to the cause of testing mystifies its
dentists and other health-care workers with HIV-related limitations and creates an impossible standard of safety. Her
conditions. In a letter written by Bergalis to Florida Health dedication also mystifies a route of HIV infection that in
Professionals: "I blame Dr. Acer and every single one of you absolute numbers and percentages is the least representative
bastards. Anyone who knew Dr. Acer was infected and had full- means of infection in the entire epidemic.
blown AIDS and stood by not doing a damn thing about it. You
are all just as guilty as he was. You've ruined my life and my • Bergalis actively participated in several actions by congressmen
family's. If laws are not formed to provide protection, then my to pass legislation restricting the activities of persons infected
suffering and death was in vain." with HIV. Shortly before Bergalis' 1991 death, despite failing
health, she testified before the Congress in support of a bill
• October 1991: Bergalis’ public ordeal culminated in when in a sponsored by Representative William Dannemeyer mandating
highly debilitated condition she made a trip by train from her HIV tests for healthcare workers, and permitting doctors to test
home in Florida to the nation's capital to offer personal patients without their consent.
testimony before a congressional committee. That hearing was • Dying with AIDS, Bergalis was expected to make a commanding
convened to gather information about proposed federal witness, testifying with all the authority of her ill health against
legislation that would require HIV testing of all health-care the complacency of the federal government that endangered
workers, legislation that was in fact named in honor of Bergalis. patients nationwide. Bergalis statement was "I did not do
anything wrong, yet I am being made to suffer like this. My life
• The interest of the American public in Bergalis' illness has a has been taken away. Please enact legislation so that no other
precedent in the media treatment of a small group of persons patient or health-care provider will have to go through the hell
earlier featured on the cover of a national magazine. In 1985 that I have.”
Life proclaimed on its July cover: "NOW NO ONE IS SAFE FROM
AIDS." The novelty that apparently justified that headline was • In one sense Bergalis was a young woman who got an HIV
that the persons featured in the accompanying article were infection for no obvious morally punitive reason -- perhaps such
outside the apparent risk groups for AIDS. One subject was a a person with AIDS could make clear for many people that the
heterosexual woman, one a heterosexual man, and the others opposite of high risk is low risk, not no risk. And certainly her
all members of a Pennsylvania family, three of whom had AIDS. illness and death showed that HIV infection is possible in the
There were allegedly no gay men in the article, no drug-users, health-care setting for other reasons than blood transfusions,
no prostitutes. The attraction of these people, like that of needle-stick injuries, and artificial insemination. Not a
Bergalis, for the media was that they were stricken with AIDS "threatening" person either in appearance or behavior.
even though they were ostensibly "outside" the groups
mythically taken to define HIV risk. Moreover, someone
infected them in ways unrelated to their personal failings.

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 nd
H.R. 2788 (102 ): Kimberly Bergalis Patient and Health Provider
Protection Act of 1991
nd
• This bill was introduced on June 26, 1991, in the 102 Congress,
by Rep. William Dannemeyer, a Representative for California’s
th
39 congressional district.

• Its aim was to amend title XXVI of the Public Health Service Act
to provide for the establishment of protections against certain
communicable diseases for both health care providers and the
patients of such providers and to provide for certain forms of
assistance for such providers and patients.

• Specifically, it aims to direct the Secretary of Health and Human

Services to establish a list of medical and dental procedures that
health care providers with communicable diseases should be
prohibited from performing because it poses a risk of
transmission of the disease from the provider to the patient. It
also requires the State to meet the following conditions:

ü To require the testing of providers

ü To prohibit the performance of procedures by infected

providers without informed consent

ü To require infected providers to inform patients who may

have been exposed and offer to provide counseling and
testing

ü To provide counseling to providers on the effects of the

prohibition of performing listed procedures

ü To include HIV disease and Hepatitis B on the list of

communicable diseases

ü To include in the list of prohibited procedures those which

pose a risk of transmission from patient to provider

ü To authorize providers to test patients for communicable

diseases with reasonable basis even without consent

• The bill was not enacted.

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