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Michigan: HIV testing and pregnant women seeking medical care.

Question In Michigan, a doctor is supposed to make sure that a pregnant woman gets information and counseling about an HIV test. But how much responsibility do nurses have, if the doctor doesn't take care of this?

Answer Under Michigan law, plenty.

This is a good question, because it points out one of the areas where the law creates an affirmative duty to offer HIV testing. Who has a legal duty and who is in trouble if the duty is neglected is always worth understanding, especially if you are the person who could get in trouble.

Michigan Compiled Law 333.5123 (see this and the rest of Michigan's statutes at www.michiganlegislature.org) says that a "physician or an individual otherwise authorized by law to provide medical treatment to a pregnant woman shall take or cause to be taken, at the time of the woman's initial examination, test specimens of the woman and shall submit the specimens ...for the purpose of performing tests approved by the department for venereal disease, HIV or an antibody to HIV, and for hepatitis B."

Split this long and awkward sentence into logical parts, and the answer to the question is that a nurse shares the responsibility for this testing with the doctor. And, note that the law is not clearly limited to just the obstetrics and gynecology health care providers. The law imposes the obligation to test on ANY authorized health care provider whose patient is a pregnant woman.

This is important, because that means that the results of the test could be stashed away in the woman's health records AT SOME OTHER health care provider, other than the ob/gyn. The law says, "If, when a woman presents at a health care facility to deliver an infant or for care in the immediate postpartum period having recently delivered an infant outside a health care facility, no record of results from the test required by this subsection is readily available to the physician or individual otherwise authorized to provide care in such a setting, then the physician or individual otherwise authorized to provide care shall..." re-do the test.

So that means that a health care provider who is treating a woman who is either pregnant or has recently delivered must do the whole analysis. And the "analysis" is the usual pre-test counseling process plus the seeking of consent, plus more. The law says this:

"This ... does not apply if, in the professional opinion of the physician or other person, the tests are medically inadvisable or the woman does not consent to be tested."

(Note that in this sentence, the phrase "or other person" means the "individual otherwise authorized by law to provide medical treatment" phrase that is repeated through the rest of the statute.)

So in the case of a pregnant woman, or a woman who has recently delivered a baby, the analysis must include whether the test is medically advisable. And of course, the woman must consent.

The point is that the law provides a sort of recurring occasion for a mom-to-be or new mom to be counseled and advised about testing for HIV, hepatitis B and venereal disease. That counseling should occur several times during the year or so that a woman is pregnant and after her delivery.

And the law puts the obligation to make sure that this repeating conversation occurs onto the woman's treating physicians and other people who are "authorized by law to provide medical treatment," no matter what their exact specialty or medical field. So if a pregnant woman goes to a cardiologist, then the cardiologist is supposed to have this conversation with her, too.

The only provision in the law that allows health care providers to avoid bringing up the subject of testing is that the law requires that the woman's medical record must contain a note showing either that the tests were ordered and their results, OR an explanation of why the tests were not ordered. In a practical sense, all that means is that any given doctor will probably only have to offer the test once since after that point there will be either a result or a note in that doctor's records.

Bottom line answer If a nurse does not see a record in the file that the testing has been offered and either completed or declined, then the "analysis" has to happen.

CONCLUSION

The risk of HIV transmission at birth is not yet zero, anywhere. To get to that point, and then to keep the perinatal transmission rate at zero, the "risk of transmission/reward of testing" conversation must happen. And nurses are just as responsible under the law as physicians to ensure that it actually happens.

 Answered by Kendra S. Kleber JD

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