California Appeals Court Maintains Strict HIV Confidentiality

An unanimous panel of the California 1st District Court of Appeal ruled in _Children's Hospital & Research Center Oakland v. Workers' Compensation Appeals Board_, 2010 WL 3936050 (Oct. 8, 2010) (not reported in Cal.Rptr.3d), that the Workers' Compensation Appeals Board erred in ordering a hospital to provide statistical data drawn from patient files on the possible presence of HIV+ infants at the hospital during the years 1981-1999 as part of discovery in a Workers' Compensation case brought by an HIV+ former child care worker who claimed to have been infected on the job. The court ruled that California Health and Safety Code sec. 120975 absolutely prohibits the discovery order. (We will identify the former child care worker by her initials to preserve her confidentiality, although the court used her full name throughout its unofficially published opinion.)

S.M., the real party in interest, worked in the petitioner hospital's Parent Infant Program (PIP) during the years in question. She did not know the HIV status of any infants in the program. She began to experience what might, in retrospect, be considered symptoms of HIV infection in 1996, but did not undergo HIV testing at that time. As various symptoms mounted in subsequent years, she finally was diagnosed HIV+ in 2002, several years after she had ceased working in the program. She filed a claim for Workers= Compensation benefits, alleging based on her lifestyle and work history that she was most likely infected through contact with the blood of infants in the program, reciting at least two incidents of actual blood exposure during her employment. She alleged that she is a married, monogamous woman who had not experienced any of the other potential blood exposures that might lead to HIV infection, and that her husband had tested negative for HIV.

The Workers' Compensation judge in her case appointed a special master to take evidence and make a recommendation concerning her discovery request for statistical information about HIV+ patients in the program. Dueling experts testified. The hospital's expert testified that the possibility she could have been infected through occupational exposure was vanishingly small. Her own expert testified there was a theoretical possibility that she was exposed occupationally. She emphasized in her discovery request that she was not requesting identifying information about clients of the program who might have been HIV+, but rather merely statistical data about the presence of HIV+ clients so that she could make an argument that the most likely explanation for her infection was occupational exposure. The hospital agreed in the context of the special master proceeding that it would review its patient records for the years 1994-1996, the most likely time period, based on S.M.'s recollection of her symptoms, when there might have been occupational exposure. The review found that no HIV+ infants were in the program during the relevant years. McKnight came back with a new request for a similar review covering all the years she was working in the program, but the hospital balked, arguing that any further discovery would violate section 120975 and would also raise state constitutional privacy issues.

The special master recommended that the hospital be required to conduct the requested review, the hospital objected, and the matter came before the workers' compensation judge at a status conference in August 2009. The judge adopted the special master=s recommendation, emphasizing in his ruling that S.M.'s discovery request did not require revealing the individual identity of any HIV+ child. The hospital appealed to the Appeals Board, which denied the petition for review, and the petition to the Court of Appeal followed.

The court found that section 120975 contains some specific narrow exceptions, but that this case did not fall within them. "Importantly, "wrote Justice Ruvolo for the court, "there is no exception to section 120975 permitting disclosure of HIV-related blood test information because it has relevance to the issues in an unknown third-party's legal proceeding. To the contrary, the statute specifically protects this information from disclosure 'in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings….' If section 120975 is violated, there are strict penalties, including civil and criminal liability, for the disclosure of HIV-related test information in a manner that provides the identity or provides identifying characteristics of the person to whom the test results apply. Each disclosure is a separate, actionable offense."

S.M had consistently argued that she was.requesting statistical data about the presence of HIV+ children in the program, and was not requesting that any individual HIV+ child be identified. But the court rejected this argument, referring to its early and historic HIV-confidentiality ruling in _Irwin Memorial Blood Centers v. Superior Court_, 229 Cal.App.3d 151 (1991). There a trial court's discovery order had permitted depositions of HIV+ blood donors with arrangements made to preserve their anonymity, but on appeal the court rejected the process, finding that even with precautions to prevent the identity of the donors being revealed to the plaintiffs in that case, their very participation in the deposition process meant that their identity would be revealed to personnel who were implementing the process. So here, the process of combing through patient records and extracting data meant that the personnel who would be carrying out the discovery order would necessarily learn the identity of individual patients who were HIV+, against the explicit guarantee in the statute that such identity would be revealed to nobody for the purpose of discovery in civil litigation.

Furthermore, S.M.'s data request asked for certain demographic breakdowns of the data, such as gender of HIV+ patients. Thus, wrote Justice Ruvolo, "even though the discovery order did not require the disclosure of the names of the individuals who have tested HIV+, the order still required the production of sufficient identifying information so that the overarching purpose behind section 120975 – the >absolute= protection of the identity and privacy of individual who have taken a blood test to determine their HIV status – would be jeopardized if we allowed this order to be enforce."
Consequently, the court ordered that a writ of mandate issue vacating the Workers Compensation Appeals Board order and annulling its decision.

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