B.R. v. Vaughan, L-5393-11; Law Division, Middlesex County; opinion by LeBlon, J.S.C.; decided April 18, 2012; approved for publication July 20, 2012. DDS No. 22-3-7077 [8 pp.]

Plaintiff had a long-term relationship with an individual named D.D. that ended in April 2010. Following the end of the relationship, plaintiff discovered that D.D. had tested positive for the human immunodeficiency virus (HIV) in or about December 1993, and that he had infected her with the virus at some point in 2010.

Plaintiff filed suit against her partner’s doctor, the state of New Jersey, and various health agencies alleging defendants failed to notify plaintiff of her partner’s HIV status or the necessity to get tested after potential exposure.

Defendants moved to dismiss for failure to state a claim on which relief can be granted, arguing that there was no duty to disclose D.D.’s HIV status as the state is constrained by the rules and regulations that generally preclude disclosure without written consent. There is no allegation that this authorization was ever provided.

There are no applicable New Jersey decisions that directly address the duty of state agencies and/or their employees to notify a person of their partner’s HIV/AIDS status when the infected individual is a client or patient of that agency or their employee.

Held: The state and its various health agencies did not owe a duty to plaintiff to notify or counsel her regarding her partner’s HIV status due to the laws of confidentiality regarding persons infected with HIV or AIDS in New Jersey where no prior written consent was given.

Essentially, the issue before the court is whether defendants had a duty to notify plaintiff that she was at risk of exposure to HIV from contact with D.D. This case is governed by the applicable statutes, namely N.J.S.A. 26:5C-7 to -9 and N.J.S.A. 26:5C-14.

In 1989, the New Jersey Legislature enacted the relevant statute concerning the acquired immune deficiency syndrome (AIDS). N.J.S.A. 26:5C-7 provides for the confidentiality of AIDS and HIV infection records and information. The records relating to a person who has or is suspected of having AIDS or HIV infection are confidential and shall be disclosed only for the purposes authorized by the act. Disclosure is only permitted with the “prior written consent of the person who is the subject of the record.” If the prior written consent is not obtained, the records may not be disclosed except to qualified personnel, the department, or by court order. Pursuant to the statute, unauthorized disclosure of the name of the person who has or is suspected of having an HIV or AIDS infection may result in a civil action for damages, including attorney fees and punitive damages.

The rules and regulations regarding reporting of HIV and AIDS infection are set forth by the commissioner pursuant to N.J.S.A. 26:5C-24. Although N.J.A.C. 8:57-1.1 provides a scheme for dealing with infectious and communicable diseases, it does not have application to this case, which deals with HIV and AIDS infections. Unless otherwise provided in the statute, individuals infected with HIV or AIDS have the protection of confidentiality under the law. Moreover, the purported reporting regulations, N.J.A.C. 8:57-2.1 to -2.12, do not require notification of an HIV-positive status to an outsider, but rather require a positive status be reported to the state and its agencies so that the virus can be better tracked and services may be offered to infected individuals. Reviewing all of the applicable regulations, the court has not found any duty on the part of the state, its agents or employees to report an HIV-positive status to a third party such as a partner. Thus, the court cannot impose on the state such a duty based on the cited regulations dealing with either general diseases or specifically with HIV and AIDS, especially where there is a mandate of confidentiality in these types of cases.

Therefore, the court finds that defendants had no statutory or common-law duty to notify plaintiff that she was at risk of contracting HIV from D.D. Plaintiff has provided no evidence that D.D. gave written authorization for the disclosure of his HIV status. In fact, plaintiff provided an affidavit signed by D.D. regarding his interaction with defendants, and there was no indication that he provided the required authorization for disclosure. Without prior written permission, defendants would be liable for an unauthorized disclosure and may be responsible for significant civil damages had they attempted to contact plaintiff. Moreover, defendants logically could not notify plaintiff that she was at risk of contracting HIV from D.D. without informing her of his test results.

The court also finds that plaintiff’s reliance on Earle v. Kuklo is misguided. Earle supports a cause of action against D.D. for negligently exposing plaintiff to HIV, but does not require an extension of this duty to report to defendants — state agencies bound by the HIV/AIDS confidentiality laws of New Jersey.

Not only did defendants have no duty to disclose D.D.’s HIV status to plaintiff, but they were actually prohibited from doing so by New Jersey law. Defendants were also not under any common-law duty to notify plaintiff, as any such notice would violate the statute.

Defendants’ motion to dismiss plaintiff’s complaint with prejudice for failure to state a claim is granted.

For defendants — Judith E. Collins, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General). For plaintiff — Todd Drayton (Martin, Kane & Kuper).