The United States Center for Disease Control estimates that over 1.2 million people in the United States are living with HIV infection and HIV/AIDS has resulted in the death of approximately 658,507 Americans.[i] As counsel to those who are infected or affected by HIV/AIDS, attorneys must protect the confidentiality of HIV-related medical records in litigation where disclosure is sought.
A wide scope of discovery is permitted under CPLR § 3101 which instructs that, “There shall be full disclosure of all matters material and necessary in the prosecution of defense of an action, regardless of the burden of proof.”
However, discovery sought must be relevant to the claims asserted by the party seeking such disclosure.[ii] Further, requests for disclosure may not be overbroad, burdensome, or lacking in specificity and they may not seek irrelevant information.[iii] The Courts have noted that the test to determine if the information sought is material and necessary is one of usefulness and reason.[iv]
A higher burden must be met to obtain HIV-related information. PHL § 2785 directs that “No court shall issue an order for the disclosure of confidential HIV related information, except a court of record of competent jurisdiction in accordance with the provisions of this section,” instructing that:
- A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding; (b) a clear and imminent danger to an individual whose life or health may unknowingly be at significant risk as a result of contact with the individual to whom the information pertains; (c) upon application of a state, county or local health officer, a clear and imminent danger to the public health; or (d) that the applicant is lawfully entitled to the disclosure and the disclosure is consistent with the provisions of this article.
* * *
- In assessing compelling need and clear and imminent danger, the court shall provide written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports each finding, and shall weigh the need for disclosure against the privacy interest of the protected individual and the public interest which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination.
PHL § 2785 further notes that even when a Court makes a determination that disclosure is warranted, the Order must include provisions to protect the confidentiality of the involved individuals:
- An order authorizing disclosure of confidential HIV related information shall:
(a) limit disclosure to that information which is necessary to fulfill the purpose for which the order is granted; and
(b) limit disclosure to those persons whose need for the information is the basis for the order, and specifically prohibit re-disclosure by such persons to any other persons, whether or not they are parties to the action; and
(c) to the extent possible consistent with this section, conform to the provisions of this article; and
(d) include such other measures as the court deems necessary to limit any disclosures not authorized by its order.
In a 1991 matter involving a dispute as to what documents would be discoverable by a Plaintiff alleging that she had been infected with HIV by a prisoner, the NYS Court of Claims reflected upon the legislative intent behind the provisions contained in the PHL pertaining to confidentiality of HIV/AIDS information:
According to the legislature, maximum confidentiality protection for information related to human immunodeficiency virus (HIV) infection and acquired immune deficiency syndrome (AIDS) is an essential public health measure. In order to retain the full trust and confidence of persons at risk, the state has an interest both in assuring that HIV related information is not improperly disclosed and in having clear and certain rules for the disclosure of such information. By providing additional protection of the confidentiality of HIV related information, the legislature intends to encourage the expansion of voluntary confidential testing for the human immunodeficiency virus (HIV) so that individuals may come forward, learn their health status, make decisions regarding the appropriate treatment, and change the behavior that puts them and others at risk of infection.
* * *
It is the intent of the legislature that exceptions to the general rule of confidentiality of HIV related information be strictly construed. (L.1988, ch. 584, § 1).[v]
In a case before the NY County Supreme Court involving the Estate of a blood transfusion recipient who developed AIDS which was seeking to obtain discovery in a suit against a blood bank that was allegedly negligent in their screening of blood donations, the Court asserted that the statutory mandate of confidentiality of HIV-related information contained within PHL extends to those who are deceased. The Court denied disclosure of the donor’s name in the event that the donor was alive and in the event that the donor was dead, as well as access to the donor’s relatives for purposes of deposing them about the donor’s prior health history, based the Court’s determination that the information would have “only marginal utility in advancing the plaintiff’s theory of liability.”[vi]
The First Department has further held that the disclosure of HIV-related information is not warranted when the pleadings failed to allege a cause of action proximately related to the information sought, holding, “The court correctly determined that respondent did not establish a compelling need for disclosure of any confidential HIV-related information regarding the child, since the abuse petition did not charge him with infecting her, there was no proof that he was HIV positive, and even if the child were HIV negative, that fact would not undermine the proof of abuse against respondent in view of the incubation period of the disease and the nature of the sexual activities involved.”[vii]
In a 2013 decision denying disclosure of HIV-related information, the First Department instructed that a “‘compelling need’ must exist for disclosure of HIV-related medical records and that such ‘compelling need’ cannot be established by simply showing that the information sought is ‘material and necessary.’”[viii]
When a request for disclosure of HIV-related information is made, a party may move for a protective order citing both the PHL, claiming that the requisite burden has not been established, and the CPLR § 3103(a) which provides, “The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” A movant should also note that, “It is within the sound discretion of the trial court to “make a protective order denying limiting, conditioning or regulating the use of any disclosure device.”[ix]
[i] See, http://www.cdc.gov/hiv/statistics/basics/ataglance.html
[ii] See, Mangialino v. White Haven Memorial Park, 132 A.D.2d 970, 518 N.Y.S.2d 532, (2nd Dept. 1987).
[iii] See, Osowski v. AMEC Constr. Mgt., Inc., 69 AD3d 99, 106 (1st Dept.2009).
[iv] See, Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 235 N.E.2d 430 (1969).
[v] See, Doe v. State of New York, 152 Misc.2d 922, 579 N.Y.S.2d 822 (NY Court of Claims, 1991)
[vi] See, Roth v. New York Blood Center, Inc., 157 Misc.2d 122, 5962d 639 (N.Y. Sup. Ct. 1993).
[vii] See, In the Matter of R. Children, 216 A.D.2d 6, 627 N.Y.S.2d 376 (1st Dept. 1995).
[viii] See, Rahman v. Pollari, 107 A.D.3d 452, 967 N.Y.S.2d 31, (1st Dept. 2013). See also, Doe v. Suttinger Realty Corp., 96 A.D.3d 898, 947 N.Y.S.2d 153 (2nd Dept. 2012) (holding that the disclosure of HIV related information permissible due to HIV status being placed “in issue” by a party by having a proximate relationship with the causes of action plead.)
[ix] See, Tornheim v. Blue & White Food Products Corp., 73 A.D.3d 745, 899 N.Y.S.2d 650, (2nd Dept. 2010). See also, Greenfield v. Brooke, 683 N.Y.S.2d 897, 897, 258 A.D.2d 563, (2nd Dept. 1999).