The latex allergy crisis: proposing a healthy solution to the dilemma facing the medical community.

• Author: Cherne-Breckner, Lynn

1. INTRODUCTION II. HISTORY AND BACKGROUND OF THE LATEX ALLERGY A. Prevalence of the Allergy B. Sources and Processing of Latex Products C. Latex Reactions D. Diagnosing Latex Allergies E. Current Issues Facing the Healthcare Worker 1. Continuing Workplace Exposure 2. Exposure Outside of the Workplace 3. The Healthcare Worker as Patient F. Overall Progress and Continuing Challenges III. RELIEF SOUGHT THROUGH THE COURT SYSTEM A. Products Liability: Federal and State B. The Main Theories Under Products Liability 1. Strict Liability 2. Breach of Warranty 3. Negligence C. Workers' Compensation IV. ACCOMMODATING WORKERS UNDER THE ADA A. Background of the ADA and Title I B. Establishing Disability Under the ADA C. Application of the ADA to Healthcare Workers with the Latex Allergy 1. Preliminary Requirements 2. Establishing the Prima Facie Case 3. Reasonable Accommodation D. The Current Response to ADA Claims of Healthcare Workers with the Latex Allergy E. The Latex Allergy as a "Disability per se" V. COSTS AND BENEFITS OF ACCOMMODATION AND PREVENTION VI. CONCLUSION I. INTRODUCTION

   Tina Petriella was a 24-year old student at the Cleveland Institute of Dental and Medical Assistants when she had her first encounter with the symptoms of a latex allergy. A mild rash had broken out on her hands several times during her clinical training. She thought little of it as the redness always disappeared eventually. It was not until approximately one year later, during her employment as a Dental Assistant at Family Dental Care in Mentor, Ohio, that her suffering truly began.

   Tina wore the latex gloves provided by her employer as a standard procedure to protect herself and her patients from the HIV virus. She went through dozens of pairs of gloves per day, and once again, the rash returned. It was mild at first, but in a short time, her hands were bleeding from the open sores she had developed. Seeking help from her doctor, Tina was prescribed a treatment of hydrocortisone cream and cotton liners for her latex gloves. Her physician simply told her that she was allergic to the latex gloves she was wearing, and that this treatment should be sufficient to prevent the symptoms she was experiencing.

   Unfortunately, the rash was only the beginning of Tina's problems. Subsequently, she developed latex-related asthma requiring the regular use of an inhaler. The slightest exposure to the latex proteins brings on an attack that includes hives and new allergic cross-reactions to other products occurring on a regular basis. She has been forced to leave her apartment after breaking out in hives from painting with latex-based paint and had her wrist swell up after having a hospital name band placed on her at the Cleveland Clinic. She can only use certain brands of toilet paper and lotions, and must carefully watch workers at the supermarket deli to make sure that they are not wearing latex gloves.

   Extreme precautions also must be taken before Tina can have routine surgery. Any time she needs a procedure, the hospital staff must scrub down the entire operating room to remove all traces of latex. They must make sure every piece of tubing, including the ports on her I.V.'s are non-latex based products. On one occasion before a fairly routine procedure to remove an ovarian cyst, the hospital staff realized that they forgot to specially prepare the operating room. As a result, Tina narrowly escaped what could have been a fatal allergic reaction. Fortunately, the error was caught, but she had to wait for three more hours for the operating room to be sterilized before her surgery could proceed.

   One of Tina's biggest frustrations is the erratic nature of the allergy. Her colleague, a nurse for over fifteen years, went into latex-induced shock as she was driving home from work. The colleague had no warning of the reaction. Consequently, Tina lives with the constant worry that at any moment she could be subject to anaphalactic shock symptoms requiring emergency measures. Presently, at age 35, she is no longer working in the health care field. She had to abandon her chosen career after several unsuccessful attempts to find alternative medical employment, and she is currently working in customer service for a trucking company. She laments that her present employment is in no way financially comparable to the earning potential she had as a skilled dental assistant and is no where near as fulfilling. (1)

   Women like Tina and her colleague represent a growing class of health care workers experiencing an alarming process known as latex sensitization. (2) Each additional exposure, no matter how minute, increases sensitivity to the latex and to other chemical products, thus turning every day activities into potential lifethreatening hazards. (3)

   The explosion in the number and severity of latex allergies began with the emergence of the AIDS epidemic as the Centers for Disease Control issued universal precautions advising health care workers to use protective barriers to prevent the spread of the infection. (4) This resulted in constant use of the gloves by medical workers and a great increase in demand for cost effective gloves. Essentially, the quality of the glove making processes decreased, increasing the amount of allergy inducing proteins excreted to wearers. (5) Afflicted workers include physicians, nurses, dentists, dental hygienists, operating room personnel, laboratory technicians and ambulance attendants among others. (6) Many of the most extensively trained medical professionals in our society are being turned away from jobs or forced to quit due to the potential health consequences. This situation has resulted in mass product liability litigation against the manufacturers of the latex gloves, employment discrimination suits against employers, and voluminous worker's compensation lawsuits. (7) Pursuit of these remedies has yielded mixed results, with some plaintiffs receiving multi-million dollar awards and others receiving nothing. As with most litigation, the outcome is rarely satisfactory to any party involved.

   This note first explores the nature of the latex allergy, followed by an explanation of the various types of litigation that have been brought by health care workers to obtain relief. In Part IV, this paper explores the issue of the latex allergy as a "disability" under the Americans with Disabilities Act. Finally, it will propose that education regarding prevention and accommodation measures combined with proper government agency regulations will ensure the health of individuals who chose to pursue a career in the medical field, will protect consumers, and will preserve the strength of the health care industry as a whole. Most importantly, the value obtained in accommodating these highly skilled workers outweighs the costs incurred by medical employers and providers.

2. HISTORY AND BACKGROUND OF THE LATEX ALLERGY

   1. Prevalence of the Allergy

      According to the National Institute of Allergy and Infectious Diseases, at least fifty million Americans have some type of allergic disease, and allergies are the sixth leading cause of chronic disease costing the health care industry eighteen billion dollars annually. (8) The prevalence of latex allergy in the general population varies widely, with estimates ranging from less than one percent up to six percent. (9) However, recent estimates show that latex allergies currently affect 10% to 12% of health care workers and up to 24% of anesthesiologists. (10) Why is the percentage of latex allergies so much higher in the medical field? The answer is the increased use of powdered latex gloves. This was triggered by the issuance of universal precautions from the Centers for Disease Control in the early 1980's to prevent the spread of AIDS, hepatitis C and other blood-borne pathogens. (11) Latex glove use increased dramatically, from 12 billion pairs in 1987 to more than 200 billion pairs in the next decade. (12)

   2. Sources and Processing of Latex Products

      Natural rubber latex mainly comes from the sap of the rubber tree, Hevea brasiliensis, which grows in Africa, Asia and South America. (13) While harvesting rubber, the trees are scribed to create wounds producing milky sap. The tree invokes a defense response to the wounding by forming defense proteins within the sap that eventually becomes the latex product. (14) Several rubber proteins have been found to be linked to allergies, and when these proteins leach out of the gloves into the wearer's skin, an allergic reaction can be triggered. (15)

      Rubber processing involves many complex chemical reactions which require numerous chemical additives to give the rubber its needed properties. These additives include fungicides, stabilizers, blocking agents and the like. (16) Due to the high demand for the gloves starting in the 1980's, many inexperienced firms rushed to begin producing gloves at high volumes by cutting corners on quality. To decrease production time, for example, necessary wash and rinse cycles were reduced. To quicken reaction times, the latex was overdosed with accelerators, activators and sulfur. This excessive use of chemicals was greater than the solubility of the rubber, thus producing a leaching effect. This caused the additives, along with the latex proteins, to contact the glove wearer's skin to an extent never seen before. (17) In fact, cost cutting methods such as insufficient rinsing and excessive use of chemical reagents account for the varied concentrations of extractable latex proteins in different brands of gloves, up to a 3,000 fold difference. Large variations also occur between different lots of gloves made by the same manufacturer. (18)

      The problems are exacerbated because the latex proteins bind with the cornstarch powder used inside many gloves to ease their removal. This, in turn, releases the proteins into the air when the gloves are snapped off. (19) This process results in the inhalation of the aerosolized...