Senate OKs jail for HIV-bearing doctors But milder measure is also approved

WASHINGTON -- The Senate voted overwhelmingly yesterday to impose a minimum 10-year prison term on health care workers infected with the AIDS virus who treat patients without first disclosing theircondition.

The proposal by Sen. Jesse Helms passed 81-18, despite appeals from opponents who urged the Senate to adopt a less severe measure that would codify guidelines released Monday by the federal Centers for Disease Control.


The Senate then voted 99-0 to approve that measure, too. It would require states to enact and enforce the CDC guidelines, which call for doctors, dentists and other medical personnel who might accidentally spread AIDS to be tested for the human immunodeficiency virus, which causes the disease. Doctors who failed to comply would risk discipline by state medical licensing boards.

Congress will ultimately decide whether to keep one or both of the measures in Senate and House negotiations over a final bill. The House has not yet considered legislation on the issue.


Both measures came in response to rising public concern over the spread of AIDS by infected health care workers, an issue that gained national attention in the case of Kimberly Bergalis.

Ms. Bergalis, 23, of Fort Pierce, Fla., is dying of acquired immune deficiency syndrome. She and four other patients were infected by a dentist. The five cases are the only known incidents of their kind.

"She doesn't have a chance," Mr. Helms, R-N.C., said of Ms. Bergalis. "So I don't think a 10-year sentence is severe when you talk about what these people are willing to do to their innocent patients."

The Helms measure calls for a fine of up to $10,000, at least 10 years in prison or both for an HIV-positive health care worker who treats an unknowing patient. Medical personnel would be exempt if treating a medical emergency "in which alternative medical treatment is not reasonably available."

Maryland's senators split over the Helms amendment, Paul S. Sarbanes voting for it and Barbara A. Mikulski opposing it.

The second measure passed yesterday, a compromise bipartisan bill, would compel states to adopt CDC guidelines advising doctors, dentists and nurses who perform procedures involving exposure to blood to be tested for HIV.

Under the guidelines, medical personnel who test HIV-positive should stop performing such "exposure-prone" treatments. Those procedures would include abdominal surgery, root canals and other treatments in which a health care worker could be injured and bleed into an opening in a patient.

Health care workers who wish to continue treating patients should inform patients of the infection and seek guidance from a panel of medical experts, the guidelines say.


Under the legislation approved yesterday, states would have to adopt the guidelines within a year or risk losing millions of dollars in federal public health grants.

Senate Democrats and Republicans and Bush administration officials worked out the compromise measure in negotiations Wednesday as an alternative to the Helms proposal.

The CDC guidelines "represent the best thinking of scientists and the medical profession who have been reviewing this subject for the past year," said Sen. Edward M. Kennedy, D-Mass., who sponsored the amendment.

Opponents of the Helms measure argued that it would force doctors who suspected they may carry HIV to avoid being tested.

"Do you think any of these people who already have a fatal disease are going to be deterred by a prison term?" asked Sen. Dave Durenberger, R-Minn. "We need prevention, not punishment. We need to cure AIDS, not criminalize it."

The CDC estimated in January that about 300 surgeons and 1,200 dentists in the United States were infected with HIV.


As of March 31, there were 6,436 health care workers in the country known to have AIDS, including 703 physicians, 47 surgeons and 1,358 nurses, and 171 dentists and dental hygienists.

The American Medical Association and other health care groups lobbied against the Kennedy-sponsored legislation, even though they considered it far less onerous than the Helms amendment.

Health workers' lobbyists said they favored the compromise's call for caution but opposed linking the steps to a doctor's license. Such linkage, they said, would make the provisions all but mandatory.

The AMA and the American Dental Association have already urged their AIDS-infected members not to perform so-called invasive procedures unless their patients are told of their condition and consent to being treated.