Information regarding a plaintiff’s HIV status is highly relevant in the defense of a medical malpractice action. A positive HIV status may have a direct bearing on a plaintiff’s life expectancy or the efficacy of treatment for the injuries allegedly sustained, particularly if the plaintiff is non-compliant with a complicated treatment regimen for HIV. Logically, therefore, records regarding the plaintiff’s HIV status should be subject to disclosure. After all, the plaintiff has put his or her physical condition “in controversy” by commencing the action, thereby waiving the physician-patient privilege, and CPLR §3101(a) mandates that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action,” a standard that has been liberally interpreted by the courts.1 Yet, HIV-related information is shielded from disclosure by Article 27-F of the Public Health Law unless a defendant can demonstrate a “compelling need” therefor,2 a standard which has been interpreted as being more stringent than the “material and necessary” standard.
In pertinent part, Public Health Law §2785(1) states that “[n]otwithstanding any other provision of law, no court shall issue an order for the disclosure of confidential HIV related information except…in accordance with the provisions of this section.” Subdivision (2), in turn, gives a court discretion, but does not require the court to order the disclosure of confidential HIV-related information, upon a showing of “a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding.”
