NY Appellate Division Rules on HIV-Related Discovery Demand

A unanimous four-judge panel of the New York Appellate Division, 2nd Department, ruled on June 20 that a property-owner being sued by an HIV-positive individual who claims to have been injured in a fall on the owner's property is entitled to a hearing on its demand for disclosure of HIV-related information in the plaintiff's medical records.  John Doe v. Sutlinger Realty Corp., 2012 WL 2330560, 2012 N.Y. Slip Op. 04969.

The court explained that "during discovery, the defendant inadvertently received information indicating that the plaintiff was HIV positive.  The defendant then demanded medical information regarding the plaintiff's HIV status, but the plaintiff refused to provide authorizations for such information and refused to answer questions regarding his HIV status at his deposition."  The plaintiff attempted to set matters in motion to close discovery and proceed to trial.  The defendant opposed this, moving instead to compel the plaintiff to comply with outstanding discovery requests. 

Kings County Supreme Court Justice Herbert Kramer responded by referring the discovery matter to a special referee, to "hear and report as to the statutorily required findings and to assess the relevance of the medical information sought."  The John Doe plaintiff appealed this ruling.

New York's HIV confidentiality law, Public Health Law section 2785, sets forth specific findings that a court must make before it can order the disclosure of HIV-related information from medical records.  The law requires that the court make written findings concerning a "compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding."  The court is supposed to weigh the need for disclosure against the individual's privacy interest, and is also supposed to weigh the public interest "which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination."

The Appellate Division does not specify how the defendant could have "inadvertently" learned that the plaintiff was HIV positive during discovery.  One imagines that, as in all personal injury cases where plaintiff is seeking damages whose calculation would depend on a prediction of future health and lifespan, the defendant routinely sought discovery of medical records.  Perhaps the custodians of such records (doctor's office, hospital, clinic?) did not completely remove all HIV-related information in the records before turning them over.  For example, the records might have referred to a medication prescribed for the plaintiff that would be the equivalent of disclosing that the plaintiff is HIV positive. Health care providers generally place HIV-related information into separate files to preserve confidentiality, but stray remarks entered in a patient's general file or references to HIV-related medications or side effects may tip off somebody reviewing a general medical file that the patient is HIV positive.  That's the most likely scenario here.

A recurring issue is whether an HIV positive individual who has a personal injury claim that is, in itself, totally unrelated to their HIV status, such as this slip-and-fall case, should be required to disclose their HIV-related medical history in the context of civil litigation, on the theory that any factor that could affect their future health and potential lifespan is relevant when the plaintiff is claiming damages for loss of future income and/or enjoyment of life as a result of the particular injury for which they are suing. 

To the Appellate Division panel deciding this case, the answer appeared obvious.  "The Supreme Court properly found that the plaintiff put his HIV status in issue by commencing this action and alleging that he suffered permanent injuries and a total disability as a result of the accident.  Furthermore, the Supreme Court properly found that the plaintiff's life expectancy would be relevant to an award of damages, and that ignoring the plaintiff's HIV status would violate the defendant's right to a fair trial by seriously hindering the defendant's ability to mount a defense based on a claimed shortened life expectancy."

The court noted that the Supreme Court had not ordered disclosure, but rather had ordered a hearing before a special referee to do the fact-finding necessary for the court to make the written findings that are statutorily required before it can order disclosure.  Additionally, the statute mandates that the court's disclosure order, if and when it comes, include provisions to protect the confidentiality of HIV-related information by imposing a protective order governing its use and distribution.  Allowing the plaintiff to appeal as "John Doe" is consistent with this concern for confidentiality.


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