Health; Rubella Vaccination or Immunity

Subject:

Requested By: J. N. MacCormack, M.D., Chief Epidemiology Section Division of Health Services

Question: May a hospital, clinic or other medical facility lawfully require all personnel to provide documentation of immunity to rubella or to be tested for susceptibility for rubella and to be immunized if susceptible?

Conclusion: A hospital, clinic or other medical facility, as a reasonable condition of employment, may (1) require all personnel who come in contact with pregnant woman to provide documentation of immunity to rubella or to be tested for susceptibility for rubella and to be immunized if susceptible and (2), if deemed necessary in the professional judgment of the medical director of the facility, require all personnel who come in contact with female patients of childbearing age to provide documentation of immunity to rubella or to be tested for susceptibility for rubella and to be immunized if susceptible.

In a letter to the New England Journal of Medicine, (October 20, 1983, Vol. 309, No. 16), Stephen Kahler, M.D., Trish Magyari, M.S., and Robin D. Ifft, M.S. of the Univeristy of North Carolina at Chapel Hill wrote concerning an incident at the prenatal-diagnosis clinic that revealed the need for awareness of rubella-immune status among persons working in the medical setting. The writers stated:

"There were 2283 cases of rubella reported to the Centers for Disease Control in 1982 (personal communication, April 1983) — an increase of 206 cases over the 2077 reported in 1981. Approximately one fourth (24.4 per cent) of the reported cases in 1981 occurred in people over the age of 20 years. Although the rubella "syndrome" occurs in fetuses who acquire exposed at 16 to 18 weeks after conception (the usual time of a visit to a prenatal diagnostic clinic) may suffer from hearing loss or other problems. Co-workers or patients who are in the early, undetectible states of pregnancy may be dangerously exposed. These women would be at risk for having an infant with the full rubella "syndrome." For this reason we believe that all who work in a medical setting should have their rubella status confirmed, and if unprotected, they should be immunized.

A Morbidity and Mortality Weekly Report of the Centers for Disease Control (January 28, 1983, Vol. 32, No. 3) stated:

"The Immunization Practices Advisory Committee (ACIP) recommends that "– (to) protect susceptible female patients and female employees, persons (both male and female) working in hospitals and clinics who might contract rubella from infected patients or who, if infected, might transmit rubella to pregnant patients should be vaccinated against rubella, unless there are contraindications." This is supported by the American College of Obstetricians and Gynecologists. The American Hospital Association Advisory Committee on Infections within Hospitals also recommends that susceptible health care personnel of both sexes and all ages who have contact with female patients of childbearing age should be immunized. It also states that "the hospital has a responsibility to protect its patients from infection. The need for this protection would appear to be sufficient reason for a policy obliging personnel who come in contact with pregnant patients to be tested for susceptibility to rubella and to be immunized if susceptible.""

The question presented is whether hospitals, clinics or other medical facilities have a responsibility under North Carolina law to protect patients from the risk of obtaining rubella during their visits to or stays in such facilities. In Bost v. Riley, 44 N.C. App. 6738, 261 S.E. 2d 391 (1980), the North Carolina Court of Appeals discussed the doctrine of corporate negligence of hospitals. "(The) doctrine of "corporate negligence" involves the violation of a duty owed directly by the hospital to the patient." (Emphasis in original) (Id. at 645) The Court cited North Carolina cases concerning the duty to make a reasonable inspection of equipment, to provide equipment reasonably suited for the intended use, to not obey instructions of a physician which are obviously negligent or dangerous, to promulgate adequate safety rules relating to the handling, storage and administering of medications, and to investigate the credentials of physicians selected to practice at the hospital. The Court concluded that "a breach of any such duty may correctly be termed corporate negligence and that our State recognizes this as a basis for liability (for a hospital)." (Id. at 647) See Taaje v. St. Olaf Hospital, 271 N.W. 109 (1937) where the hospital was held liable for the death of an infant from tuberculosis contracted from a maternity-ward nurse. The nurse had had a severe cough and cold for over six weeks.

In Tripp v. Pate, 49 N.C. App. 329, 271 S.E. 2d 407 (1980), the North Carolina Court of Appeals held that the plaintiff’s failure to offer some evidence that the care of the hospital was not in accordance with the standards of practice among other hospitals in the same or similar communities as provided by G.S. 90-21.12 required dismissal of the claim. Below is a chart of the staff rubella immunity policy of licensed hospitals in North Carolina as prepared by the Department of Human Resources.

STAFF RUBELLA IMMUNITY POLICY

LICENSED HOSPITALS

NORTH CAROLINA

SEPTEMBER, 1983

NUMBER REQUIRE REQUIRE SCREENING POLICY NO

OF HOSPITALS RUBELLA RUBELLA REQUIRED UNDER POLICY

IMMUNITY IMMUNITY BUT SHOT CONSIDERATION

OF

OF ALL OPTIONAL

SELECTED

STAFF STAFF

151 2729 15 41 39

Although the chart does not attempt to identify hospitals in the same or similar communities, it is evident that as of September, 1983, there was no consensus among licensed hospitals in North Carolina concerning the appropriate method, if any, of protecting patients from contracting rubella.

In Wall v. Stout, ___N.C.___ , 311 S.E. 2d 571 (February 2, 1984), the North Carolina Supreme Court stated, however, that the same or similar community standard of care is not the only criteria by which the performance of physicians is to be judged. "The doctor must also use his "best judgment" and must exercise "reasonable care and diligence" in the treatment of his patients." (Id. at 580, fn. 2) Similarly, a hospital must not only meet the same or similar community standard of care in G.S. 90-21.12 but also must satisfy any duty owed to patients. See Bost v. Riley, supra. Breach of either duty may incur liability.

The inquiry turns to what duty may be imposed upon hospitals, clinics, and medical facilities to protect patients from contracting rubella. Duty is "only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Derrick v. Ontario Community Hospital, App. 120 Cal. Rptr., 566, 571 (1975). The duty to exercise that degree of care for others’ safety which a reasonably prudent man, under like circumstances, would exercise remains constant; but the degree of care varies with the circumstances depending upon the likelihood and seriousness of the danger. See generally 9 NC Index 3rd. Negligence, ss. 1 and 1.2.

In an effort to anticipate the holding of our court in an action where the patient contracted rubella from a source within a hospital, clinic, or other medical facility, this Office recommends that these facilities take reasonable precautions to prevent the occurrence of rubella. This Office agrees with the American Hospital Association that the need for protecting unborn children justifies a policy for requiring all personnel who come in contact with pregnant patients to provide documentation of immunity to rubella or to be tested for susceptibility to rubella and to be immunized if susceptible. Additionally, if deemed necessary in the professional judgment of the medical director of the facility, all personnel who come in contact with female patients of childbearing age should also be required to provide documentation of immunity to rubella or to be tested for susceptibility to rubella and to be immunized if susceptible. Such measures would be prudent in order to protect the unborn child and to limit potential liability for the facility. Further, it should be noted that G.S. 143B-142 affords authority to the Commission for Health Services to promulgate appropriate rules and regulations on this subject if such are felt to be necessary.

RUFUS L. EDMISTEN Attorney General

Robert R. Reilly Assistant Attorney General