NY Court Finds Longer of Two Statutes of Limitations Applies to HIV-Confidentiality Law Suit Against City Hospital Corporation

Ruling on a question of first impression, New York State Supreme Court Justice Lawrence Knipel rejected a motion to dismiss as time-barred an action filed against the New York City Health and Hospitals Corporation (HHC) for breach of the state's HIV confidentiality law, Public Health Law Article 27-F, by an HHC employee, finding that a damage claim founded on such a violation did not fall within the scope of the shortened statutory notice and filing requirements applicable to personal injury claims against HHC.  Doe v. Belmare, 15908/10, NYLJ 1202490617574, at *1 (N.Y.Sup.Ct., Kings Co., March 31, 2011).  The ruling was reported in the New York Law Journal on April 20, 2011.

According to Justice Knipel's opinion, the "Jane Doe" plaintiff was admitted to Kings County Hospital for treatment of a stomach ulcer and phoned several people to let them know about the admission, including her former boyfriend, Joseph Belmare.  Two days later, Belmare's mother, an HHC employee, visited the plaintiff in the hospital, asked for her last name, and used that information to access her hospital medical records, which contained the information that plaintiff was HIV+.  The opinion does not indicate whether plaintiff knew about her HIV status prior to her hospitalization, but implies that in any event she had not herself previously disclosed this information to Joseph or his mother.  Mrs. Belmare allegedly disclosed the information to Joseph.  Plaintiff claims that as a result of this disclosure, she was "harassed and threatened by Joseph and his friends," leading her to obtain an order of protection against Joseph.  Further, as a result of this unauthorized disclosure, plaintiff "claims to have lost friends, suffered threats and menacing behavior, and suffered emotional harm and mental anguish."

The plaintiff filed this Jane Doe lawsuit on June 25, 2010, just within three years after the date of the alleged wrongful disclosure of her HIV status, asserting a violation of Article 27-F and its implementing regulations, and alternatively claiming a breach of fiduciary duty by the hospital and HHC by revealing her confidential HIV status to Joseph.  An essential element of the claim is that Mrs. Belmare's actions are attributable to HHC under the theory of respondeat superior, by which an employer is made to answer for acts committed by employees within the scope of their employment.

The hospital moved to dismiss on the ground that as a unit of HHC it was not amenable to suit as a distinct entity.  Doe agreed to dismissal on that ground, leaving Mrs. Belmare and HHC as codefendants. 

HHC moved to dismiss, arguing that Mrs. Belmare was acting in her individual capacity and not as an HHC employee when she disclosed the information to her son, so the claim founded on respondeat superior should be dismissed as a matter of law on that basis.  Doe argued that there was strict liability for violation of 27-F, regardless of how the information got out of the hospital's records to an unauthorized person, and also that she should have an opportunity to conduct discovery in support of the respondeat superior theory.  Justice Knipel found that this motion should not be decided prior to discovery; in essence, application of respondeat superior may turn on disputed facts.

Most significantly, however, HHC has also moved to dismiss on grounds of the statute of limitations.  Characterizing Doe's claim as essentially a personal injury tort claim, HHC argued that under NY Unconsolidated Laws Section 7401, personal injury claims against HHC are subject to a relatively short notice of claim requirement, and an abbreviated statute of limitations of one year plus 90 days.  Doe had never filed a notice of claim, and sued almost three years after her claim accrued. Doe argued that her claim against HHC was not a common law personal injury tort claim, but rather was based on a statute, PHL Article 27-F, and should be analogized to civil rights claims filed against HHC under the State Human Rights Law, which are not subject to the Section 7401 requirements.

The court sided with Jane Doe on this point.  "Public Health Law Article 27-F was enacted upon the recognition that 'maximum confidentiality protection' for HIV related information was 'an essential public health measure" and that 'strong confidentiality protections can limit the risk of discrimination and the harm to an individual's interest in privacy.'  It provides that any person who discloses confidential HIV related information in violation of section 2782 shall be subjected to a civil penalty, and that any person who willfully does so shall be guilty of a misdemeanor.  These are characteristics of a claim based on a statute, akin to a claim pursuant to the Executive Law for discrimination, and not a standard claim for personal injury.  It is apparent to this court that Public Health Law Article 27-F was enacted to protect a vulnerable class of individuals and in this regard, is dissimilar to a standard personal injury action to which Unconsolidated Laws section 7401 applies.  Thus, the requirement of the Unconsolidated Laws for service of a notice of claim within a shortened statute of limitations does not apply to this action."

In effect, suing based on the statute vindicates a public policy concerning protection of the confidentiality of HIV-related information, because of the discrimination and harassment that might flow from unauthorized disclosure (as allegedly occurred in this case), and is thus not merely a personal injury claim.

Jane Doe is represented by Suzanne Skinner, an attorney at Paul, Weiss, Rifkind, Wharton & Garrison LLP.  HHC is represented by Toni Gantz, Assistant Corporation Counsel from the City Law Department.

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