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Intensivists' Practices and the Influence of State Laws

Scott D. Halpern, MD, PhD, MBioethics; Thomas S. Metkus, MD; Barry D. Fuchs, MD; Nicholas S. Ward, MD; Mark D. Siegel, MD; John M. Luce, MD; J. Randall Curtis, MD, MPH

Arch Intern Med. 2007;167(21):2323-2328.

Background  Human immunodeficiency virus (HIV) testing can improve care for many critically ill patients, but state laws and institutional policies may impede such testing when patients cannot provide consent.

Methods  We electronically surveyed all US academic intensivists in 2006 to determine how state laws influence intensivists' decisions to perform nonconsented HIV testing and to assess intensivists' reliance on surrogate markers of HIV infection when unable to obtain HIV tests. We used multivariate logistic regression, clustered by state, to identify factors associated with intensivists' decisions to pursue nonconsented HIV testing.

Results  Of 1026 responding intensivists, 765 (74.6%) had encountered decisionally incapacitated patients for whom HIV testing was wanted. Of these intensivists, 168 pursued testing without consent and 476 first obtained surrogate consent to testing. Intensivists who believed nonconsented HIV testing was ethical (odds ratio, 3.8; 95% confidence interval, 2.2-6.5) and those who believed their states allowed nonconsented testing when medically necessary (odds ratio, 2.3; 95% confidence interval, 1.6-3.4) were more likely to pursue nonconsented HIV tests; actual state laws were unrelated to testing practices. Of the intensivists, 72.7% had ordered tests for perceived surrogate markers of HIV infection in lieu of HIV tests; more than 90% believed these tests were sufficiently valid to base clinical decisions on.

Conclusions  Most US intensivists have encountered decisionally incapacitated patients for whom HIV testing may improve care. Intensivists' decisions to pursue nonconsented testing are associated with their personal ethics and often erroneous perceptions of state laws, but not with the laws themselves. Uniform standards enabling nonconsented HIV testing may minimize inappropriate influences on intensivists' decisions and reduce intensivists' reliance on perceived surrogate markers of immunodeficiency.

Author Affiliations: Division of Pulmonary, Allergy, and Critical Care Medicine (Drs Halpern and Fuchs), Center for Clinical Epidemiology and Biostatistics (Dr Halpern), Leonard Davis Institute of Health Economics (Dr Halpern), and Department of Medicine (Dr Metkus), University of Pennsylvania School of Medicine, Philadelphia; Divisions of Pulmonary and Critical Care Medicine, Brown University, Providence, Rhode Island (Dr Ward), University of California, San Francisco (Dr Luce), and Harborview Medical Center, University of Washington, Seattle (Dr Curtis); and Section of Pulmonary and Critical Care Medicine, Yale University, New Haven, Connecticut (Dr Siegel).

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