PRACA POGLĄDOWA

REVIEW ARTICLE

THE RIGHTS OF SURGEONS WHILE WORKING WITH HIV-INFECTED PATIENTS IN UKRAINE

PRAWA LEKARZY CHIRURGÓW LECZĄCYCH PACJENTÓW Z WIRUSEM HIV NA UKRAINIE

Anatolii T. Komziuk1, Dmytro M. Velichko1, Volodymyr S. Goshovskyі3, Valentyna A. Goshovska4, Olena V. Klymenko2

1 Kharkiv National University of Internal Affairs, Kharkiv, Ukraine

2 Kryvyi Rih National University, Krivyi Rih, Ukraine

3 Oles Honchar Dnipro National University, Dnipro, Ukraine

4 National Academy for Public Administration under the President of Ukraine, Kyiv, Ukraine

5 Tavrida National V.I. Vernadsky University, Kyiv, Ukraine

Abstract

Introduction: Surgeons that are working with HIV-infected patients in Ukraine are in a vulnerable state due to the lack of special regulation of this issue in labor, medical law and labor contract, as well as the spread of HIV among the population of the country.

The aim of this article is to determine and uncover the content of the rights of surgeons while working with HIV-infected patients in Ukraine.

Materials and Methods: The research materials of the rights of the surgeons that are working with HIV-infected patients consist of national legislation, official explanations of the Social Insurance Fund of Ukraine, statistics on HIV infection. The research methods that have been used are cross-sectoral, complex statistical, analysis and synthesis. In order to obtain the results of the research the norms of medical, labor and civil law have been analyzed.

Review: The authors of the article have emphasized and described the rights of surgeons that are working with HIV-infected patients.

Conclusions: It has been proved that the current system of surgeons’ rights needs to be improved. It has been offered: to establish, at the legislative level, the responsibility of the patient with HIV infection to warn a medical employee about his infection in case of surgery or other medical manipulation that leads to contact with blood or other biological materials; to revise and significantly increase the payment of obligatory insurance of surgeons, if they are infected by a patient with HIV infection.

Key words: rights of surgeons, HIV infected patients, performance of professional duties, work-related disease, obligatory insurance

Wiad Lek 2019, 72, 2, 279-283

Introduction

The rights of surgeons, while working with HIV-Infected patients, is an element of the hygiene system and labor provision. The purpose of this article is to find out the specifics of the protection of the rights of surgeons in working with HIV-infected patients in Ukraine. The research of this problem is caused by the actual HIV prevalence among the Ukrainian population. Thus, in the four months of 2018, according to the data of the Center of Public Health of the Ministry of Health of Ukraine, 5,764 new cases of HIV infection were registered (783 of them are children to 14 years old). Since 1987, 321,382 new cases of HIV infection have been officially registered in Ukraine, 46,024 people died from AIDS in Ukraine [1]. In the world as of 2017 19.5 million people with HIV were registered [2]. Every year, about 1% of people with confirmed positive results are among those who surveyed for HIV in Ukraine [3]. Meanwhile in Ukraine the surgeon is not entitled in refusing treatment or surgical intervention for such persons, as this is prohibited by Art. 16 of the Law of Ukraine “On prevention of diseases caused by Human Immunodeficiency Virus (HIV), and legal and social security of people living with HIV” [4]. In addition, there is no obligation for the patient to report his or her positive status. Therefore, the surgeon during the medical manipulations and operations is constantly in a state of risk, in particular, HIV infecting. The evidence of this is the following facts: in the world there were 350 cases of professional HIV infections registered. In Ukraine, from 1987 to 2013, three cases of medical workers HIV infections were officially registered (1 case before 1997, 1 in 2004, 1 in 2005), which is 2.1 per 100 thousand of the corresponding professional group [5]. So, the risk of surgeons’ infection is constant, since the risk of infection after the wound contact with HIV-infected blood is approximately 0.3% (95% confidence interval (CI): 0.2-0.5%). The risk of infection after HIV-infected blood contact with intact mucous membranes is approximately 0.09% (95% CI: 0.006-0.5%) [6]. Additional negative factor of the surgeon’s work in Ukraine is the low salary, which sometimes does not justify all the risks of the profession. Although, the average salary level has been recently increased significantly. For example, according to statistics in May 2018, the average salary was 12,500UAH [7], which is approximately 450$. The average salary of a surgeon in the United States as of October 31, 2018 is 380,736$, but the average range is usually from 321,978$ to 451,875$. Salaries can vary widely, depending on many important factors, including education, certificates, extra skills and the work experience [11]. The salary of a surgeon, when considering the legal relationship with the participation of a surgeon and an infected patient, acts as one of the safety factors of the surgeon, since the material support of the medical worker is a possibility factor of further personal treatment in case of HIV infection from the patient. Thus, surgeons in Ukraine when working with HIV-infected patients are in a vulnerable state. To overcome it, it is necessary to clearly define at the legislative level the system of the rights of surgeons in working with HIV-infected patients.

The aim

The objective of this article is to define and reveal the content of the rights of surgeons while working with HIV-infected patients in Ukraine, taking into account the provisions of the current medical, civil, labor legislation, as well as statistical data on occupational diseases of Ukrainian surgeons, when dealing with this category of patients. The tasks of the article are to characterize the rights of surgeons while working with HIV-infected patients, to find out the perspectives for their further study and to suggest the ways to improve legislation in this area.

Materials and Methods

The research materials of the rights of the surgeons that are working with HIV-infected patients consist of national legislation, official explanations of the Social Insurance Fund of Ukraine, statistics on HIV infection. The research methods that were used are cross-sectoral, complex statistical, analysis and synthesis. In order to obtain the results of the research the norms of medical, labor and civil law have been analyzed.

Review and discussion

In modern medical law, surgeons in Ukraine are no different in rights compared to other medical workers, which declared in the Art. 77 of the Law of Ukraine “Fundamentals of Health Care Legislation” [9]. Analyzing the rehabilitation rights of surgeons that are working with HIV-infected patients, following should be mentioned: 1) the right to proper conditions of professional activity; 2) the right to free choice of tested forms, methods and means of activity, introduction, in accordance with the established procedure, of modern advances in medical and pharmaceutical science and practice; 3) the right to free use of social, environmental and special medical information that is necessary for the performance of professional duties; 4) the right to receive payments in case of HIV infection while performing professional duties; 5) the right to protect their personal non-property rights (honor, dignity) and property rights (right to compensation, etc.).

The right to provide individual protection while working with HIV-infected patients is defined in the Typical instruction on the use of personal protective equipment by workers who carry out diagnostic tests for HIV infection, provide medical care and social services to people living with HIV or who are in contact with blood either other human biological materials, contaminated tools, equipment or objects [10]. In particular, chiefs of health facilities should provide medical staff and other staff with personal protective equipment such as bathrobes, gloves, safety glasses, etc. In this case surgeons are obliged to use them. The right to provide individual protection is based on the fact that the life and health of a person, as well as a surgeon while performing his professional duties, is protected by the law in accordance with the Art. 3 of the Constitution of Ukraine, which determines that a person, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value [11].

The right of a surgeon to choose methods and means of action is implemented in accordance with the established order of modern advances in medical and pharmaceutical science and practice. This right has certain limitations in the form of rights and interests of patients, in particular the treatment may be appointed after its agreement with the patient. Surgeons in nowadays are facing more ethical dilemmas than before, due to the growth of scientific knowledge, increased availability and effectiveness of medical technologies, more equal relationships between patients and surgeons. The growth of scientific knowledge and technologies has provided surgeons with new and better diagnostic equipment and treatment options [12]. The choice of treatment for an HIV-infected patient should be based on the patient’s interests, and only then on his own safety.

The right to receive medical information in the treatment of a patient with HIV is based on the fact that a medical worker has the right to receive information about the results of a person’s testing for the detection of HIV in connection with the treatment of this person (Part 4 of Article 13 of the Law of Ukraine “On prevention of diseases caused by Human Immunodeficiency Virus (HIV), and legal and social security of people living with HIV” [4]). The patient has the right not to warn the doctor about his condition, as in accordance with Part 1 of Art. 12 of this Law, but people living with HIV are obliged: 1) to take measures to prevent the spread of HIV infection, proposed by health authorities; 2) to inform the persons who were their partners before the fact of infection about the possibility of their infection; 3) to refuse donations of blood, its components, other biological fluids, cells, organs and tissues for their use in medical practice [4]. Thus there is no direct obligation for a person living with HIV to warn about his health condition. It may be reasonable to expand the list of these responsibilities. For example, Part 1 of the Art. 12 should be added with the fourth paragraph, for example: “To warn of about the possibility of infection of a health worker in case of surgery or other medical manipulations leading to blood or biological materials contact”.

There is also the right to receive payments in case of surgeon’s infection with HIV while performing their professional duties. The Article 22 of the Law of Ukraine “On prevention of diseases caused by Human Immunodeficiency Virus (HIV), and legal and social security of people living with HIV” [4] determines that the HIV infection by a surgeon while performing his professional duties belongs to work-related diseases. According to the List of Work-related Diseases, approved by the Cabinet of Ministers of Ukraine on November 8, 2000, No. 1662, the AIDS disease is classified as a disease caused by the action of biological factors in the case of contact with infectious patients, infected materials or carriers of diseases in medical institutions [13].

Work-related disease is a disease that arose as a result of the professional activity of the insured and is determined exclusively or mainly by the influence of harmful substances and certain types of work and other factors related to the work (paragraph 7, Part 1of the Art. 1 of the Law of Ukraine “On Mandatory state social insurance”) [14]. Cases of work-related infectious diseases and other chronic professional intoxications are being investigated as chronic work-related diseases (Part 3, paragraph 63 of the Procedure for the Investigation and Accountability of Accidents, Work-related Diseases and Accidents at Work) [15]. Each case of a work-related infectious disease of a surgeon requires an investigation that is specifically created by a employer commission, which includes a representative of the sanitary and epidemiological service. Before the beginning of the investigation, it is necessary to establish the final diagnosis and connection of the disease with the influence of harmful factors of the production environment and labor process. This is done by the occupational therapist of the region. In addition, the level of sustainable loss of professional ability is established on the basis of the conclusion of the medical and social expert commission. A medical report of a medical-expert commission of a specialized occupational pathology treatment-preventing institution about the presence (absence) of a work related disease (paragraph 72 of the Procedure for the Investigation and Accountability of Accidents, Work-related Diseases and Accidents at Work) is issued to the employee on a receipt. [15]. As a result of the investigation an act of investigation of a chronic occupational disease is compiled, also the employer makes an act about the causes of work-related infectious disease. On the basis of these acts, the employer is obliged to give a five-day period an order to take measures to prevent the occurrence of work-related diseases and to bring to the responsibility the offenders of violations of sanitary norms and rules that led to the emergence of a work-related disease.

While investigating the infection of a surgeon with HIV while performing his professional duties, it must be established that there is a link between the infection of the surgeon with HIV and the fulfillment of his professional duties, in accordance with the Procedure of confirming the connection of the infection with the HIV with the performance of the worker’s professional duties approved by the order of the Ministry of Health of Ukraine dated March 17, 2015, No. 148 [16]. This Order applies to health care providers who provide medical care and are subjects of mandatory state social insurance in accordance with the Law of Ukraine “On Mandatory state social insurance” [14] and mandatory insurance against infection with HIV while performing their official duties in accordance with the Resolution of the Cabinet of Ministers of Ukraine of 16 October 1998 No. 1642 “On Approval of the Procedure and Conditions for Mandatory Medical Insurance of medical workers and other persons in case of HIV infections while performing their professional duties, as well as in case of occurrence of disability or death due to diseases caused by the development of HIV infection, and the list of categories of medical workers and other persons, which are subjects of mandatory insurance in case of HIV infection while performing their professional duties, as well as in case of the onset of disability or death from illnesses caused by the development of HIV infection” [17]. From the above, it follows that establishing of a connection between the infection of a surgeon with HIV while performing his professional duties is possible only if the following conditions exist: 1) the surgeon must work in a health care institution; 2) the surgeon has a mandatory state social insurance; 3) the case of infection occurred during the performance of work-related duties. Establishment of the relation of infection with HIV is carried out by the commission of the institution of health care, scientific institutions, enterprises, which concludes on this fact. A decision to confirm the connection of HIV infection with the employee’s performance of his professional duties is taken by the regime committee in three, six and twelve months, in the presence of a certificate of positive results of confirmatory researches for the presence of antibodies of HIV [16].

Confirmation of the fact of this connection provides an opportunity to assert the existence of a work-related infectious disease, which is the basis for receiving compensation. In this case, the Art. 9 of the Law of Ukraine “On Labor Protection” will be used for a compensation for damage in the event of damage to the health of workers or in the event of their death [18]. Compensation for damage in case of establishing the fact of work-related disease is carried out by the expense of social insurance payments made by the Social Insurance Fund of Ukraine. Insurance payments consists of: 1) insurance payment of lost earnings (or the corresponding part), depending on the degree of loss of victims of professional disability; 2) the insurance payment in the established cases of one-time assistance to the victim (his family members and those who were dependent on the deceased); 3) insurance payments to a child born as a disabled person as a result of a professional illness of her mother during pregnancy; 4) insurance costs for medical and social assistance [19]. Another form of payments to an infected surgeon is the payments of an employer at the expense of the legal entity’s own funds in accordance with a collective or employment contract (Part 2 of the Art. 9 of the Law of Ukraine “On Labor Protection” [18].) This method is exclusively discretionary, thus it is implemented on voluntary basis by the employer and may be considered as additional. In accordance with paragraph 2, Part 1 of the Art. 7 of the Law of Ukraine “On Insurance”, personal insurance of medical workers (except for those who work in institutions and organizations financed from the State Budget of Ukraine) in case of infection with HIV during performing their official duties is mandatory [20]. Insurers are paying insured sums: a) in case of death of the employee from diseases caused by the development of HIV infection due to infection with HIV during the performance of his professional duties – in the amount of ten-year salary of the deceased for his last position held; b) in the case of recognition of an employee with a disabled person as a result of the infection with the human immunodeficiency virus during his professional duties: I group – in the amount of 100 non-taxable minimum incomes of citizens; Group II – in the amount of 75 non-taxable minimum incomes of citizens; Group III – in the amount of 50 non-taxable minimum incomes of citizens; c) in case of temporary disability of the employee as a result of the infection with the human immunodeficiency virus during the performance of his duties – for every day 0,3 non-taxable minimum incomes of citizens, but not more than 50 non-taxable minimum incomes of citizens for all time of temporary disability during the course of action of the mandatory insurance agreement; d) in the case of a person infected with a human immunodeficiency virus during performance of his professional duties – in the amount of 50 tax-free minimum incomes of citizens (paragraph 10 of the Procedure and Conditions of Mandatory Medical Insurance of medical workers and other persons in case of HIV infections while performing their professional duties, as well as in case of occurrence of disability or death due to diseases caused by the development of HIV infection, and the list of categories of medical workers and other persons, which are subjects of mandatory insurance in case of HIV infection while performing their professional duties, as well as in case of the onset of disability or death from illnesses caused by the development of HIV infection ) [17]. If we analyze the mandatory insurance payments, then we understand that their size is too low, since the cost of a surgeon’s harm in case of HIV infection from a patient is significant. Therefore, the size of the payment of mandatory insurance of surgeons needs to be reviewed and significantly increased.

The right of a surgeon to protect his personal non-property and property rights arises in the case of their violation. In accordance with Part 1 of the Art. 15 of the Civil Code of Ukraine: Every person has the right to defend his civil rights in case of violation, non-recognition or their disputes [21]. This rule also applies to the rights of surgeons. The surgeon has the right to sue for the protection of honor and dignity in case of distribution of false or offensive information about his professional activity, moral qualities, etc. The property rights of a surgeon can be protected by appealing to a court with a claim for compensation for property damage, in particular if the HIV-infected patient intentionally infects a surgeon. The protection of civil rights and interests of surgeons (the right to health care) can also be enforced through self-defense. The self-defense of surgeons against HIV infection can be manifested in all actions aimed at protecting themselves while performing the treatment of patients, in particular the use of safety glasses, bathrobes, etc. In this case, subjectively the surgeon has the right to consider each patient as a potential carrier of HIV / AIDS, especially during an urgent surgical intervention.

Conclusions

The rights of surgeons while working with HIV-infected patients in Ukraine have been determined in the article. In particular, the authors distinguish the following types of the rights: 1) the right to proper conditions of professional activity; 2) the right to free choice of tested forms, methods and means of activity, introduction, in accordance with the established procedure, of modern advances in medical and pharmaceutical science and practice; 3) the right to free use of social, environmental and special medical information that is necessary for the performance of professional duties; 4) the right to receive payments in case of HIV infection while performing professional duties; 5) the right to protect their personal non-property rights (honor, dignity) and property rights (right to compensation, etc.).

The scholars did not address the topics in modern scientific papers on medical law concerning the rights of surgeons while working with HIV-infected patients. This problem was addressed in the context of protecting the labor rights of medical workers without taking into account the specifics of the protection of the rights of surgeons working with HIV-infected patients.

The rights of surgeons’ topic is the perspective area of scientific research, since unlike other medical workers, they are constantly at risk of direct contact with blood and / or biological materials of patients.

Surgeons in Ukraine while working with HIV-infected patients are in a vulnerable state, and to overcome it, it is necessary to clearly define at the legislative level the system of the rights of surgeons that are working with this group of patients. The existing system of the rights of surgeons needs to be improved, in particular: 1) Part 1 of the Art. 12 of the Law of Ukraine “On prevention of diseases caused by Human Immunodeficiency Virus (HIV), and legal and social security of people living with HIV” should be complemented by the fourth paragraph of the following sentence: “A patient with HIV infection is obligated to warn of about the possibility of infection of a health worker in case of surgery or other medical manipulations leading to blood or biological materials contact”; 2) the payment of mandatory insurance of surgeons, if they are infected by a patient with HIV, need to be reviewed and significantly increased.

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Author Contributions:

Conceptualization, Anatoliy Komziuk and Dmitro Velichko;

Formal analysis, Dmitro Velichko and Valentyna Goshovska;

Methodology, Volodymyr Goshovskyі and Olena Klymenko;

Validation, Dmitro Velichko, Anatoliy Komziuk and Valentyna Goshovska;

Visualization, Anatoliy Komziuk and Olena Klymenko;

Writing – original draft, Anatoliy Komziuk, Dmitro Velichko and Volodymyr Goshovskyі;

Writing – review & editing, Volodymyr Goshovskyі, Valentyna Goshovska and Olena Klymenko.

Conflicts of Interest:

The authors declare no conflict of interest.

CORRESPONDING AUTHOR

Dmytro Velichko

Kharkiv National University of Internal Affairs

L. Landau avenue, 21, 61080, Kharkiv, Ukraine

tel: +380661882892

e-mail: velichkodm29_@ukr.net

Received: 10.12.2018

Accepted: 31.01.2019