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.”
The statute also sets forth various procedural safeguards, including the requirement, in subdivision (5), that in assessing “compelling need,” “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.”
Appellate Division Decisions
Two recent decisions, from the First and Second Departments of the Appellate Division, have addressed the disclosure of HIV-related information and the circumstances under which a court may order the disclosure of such information. These cases also highlight the apparent tension and conflict between CPLR §3101(a) and the waiver of the physician-patient privilege that results from commencement of an action, and the confidentiality provisions of Article 27-F of the Public Health Law.
In Del Terzo v. The Hospital for Special Surgery,3 decided in May 2012, the First Department relied on Public Health Law §2785(2) to hold that the defendant in a medical malpractice action was not entitled to disclosure of HIV-related information.4
The First Department cited the underlying rationale and the public interest served by Article 27-F of the Public Health Law, i.e., to promote voluntary confidential testing so that individuals may learn their health status, make decisions regarding appropriate treatment, and change behavior that puts them and others at risk, as well as to limit the risk of discrimination.5 These considerations, however compelling in other contexts, should logically give way once a plaintiff waives the physician-patient privilege and places his or her physical condition in controversy by commencing a medical malpractice or other personal injury action and seeking past and future damages.6 This is particularly so inasmuch as the jury, in accordance with CPLR Article 50-A, must determine the number of years covered by awards for future pain and suffering and future economic loss.7 Any condition that potentially limits the plaintiff’s life expectancy is therefore relevant to the defense of future damages.
The Del Terzo court, however, rejected the defendant’s position that a showing that the records were “material and necessary” for the defense of the action was sufficient to demonstrate a “compelling” need for disclosure. Citing the “notwithstanding any other provision of law” clause of Public Health Law §2785(1), the court concluded that the “material and necessary” language of CPLR §3101(a) was trumped by the “compelling need” standard.8 The court also noted that the defendants had not demonstrated a “compelling need” for HIV-related information, in that the action did not involve any claim relating to an HIV infection, and defendants had not suggested that, on the basis of the medical records provided, there was any history of HIV or AIDS.9
In Doe v. Sutlinger Realty,10 however, decided slightly over a month after Del Terzo, the Second Department held that if the defendant has information that the plaintiff is in fact HIV-positive, disclosure of HIV-related information may be warranted, even if the defendant obtained the information inadvertently.
After medical records produced during discovery11 revealed that the plaintiff, who was allegedly injured as a result of a fall on premises owned by the defendant, was HIV-positive, the defendant demanded information regarding his HIV status. The plaintiff refused to provide authorizations for such information and refused to answer questions regarding his HIV status at his deposition. After the plaintiff filed a note of issue, the defendant moved to vacate the note of issue and compel plaintiff to provide outstanding discovery. The Supreme Court granted the motion to the extent of referring the matter to a referee to “hear and report as to the statutorily required findings and to assess the relevance of the medical information sought.”12
The defendant supported its motion by the affirmation of an orthopedist who stated that an individual with HIV may be at a greater risk of infection from surgery and possible greater susceptibility to fracture, and the Supreme Court found that this was “probative and admissible as to the necessity for the disclosure.”13 In opposition, the plaintiff argued that since there was no claim for exacerbation of HIV, the records were not relevant or probative. In addition, the plaintiff cited the confidentiality provisions of the Public Health Law and argued that it would be an invasion of his privacy to order such disclosure.
In granting the defendant’s motion, the Supreme Court rejected the plaintiff’s argument that the discovery was unwarranted because he had not made any claims that the accident exacerbated his HIV status, noting that this argument “fails to consider a myriad of other factors which HIV may affect.”14 Citing the “material and necessary” language of CPLR §3101(a), the court reasoned that when a party’s medical condition is “at issue,” “confidential HIV information is discoverable, if necessary, however with appropriate safeguards.”15 The court concluded that “[i]gnoring the information that plaintiff is HIV positive and the possible effect that has had on his overall past and future health is not only inappropriate but would violate the defendant’s right to a fair trial, especially when a jury may be charged with judging plaintiff’s medical condition and if appropriate placing an award based on life expectancy and loss of enjoyment of life.”16
The court, however, was mindful of the legislative intent that exceptions to the general rule of confidentiality of HIV-related information be strictly construed, and sought an appropriate balance between the defendant’s need for disclosure of relevant information and the plaintiff’s interest in confidentiality. In addition to referring the matter to a referee to hear and report as to the statutorily required findings, the court, consistent with the procedural requirements of §2785, directed that the matter be placed under seal; that subsequent proceedings in connection with defendant’s application for disclosure be conducted in camera; and that the plaintiff be referred to as “John Doe.”17
In affirming, the Appellate Division held that the Supreme Court had properly found that the plaintiff had put his HIV status in issue by commencing the action and alleging that he suffered permanent injuries and a total disability as a result of the accident.18 The Appellate Division also agreed that “the plaintiff’s life expectancy would be relevant to an award of damages, and that ignoring the plaintiff’s HIV status would violate the defendant’s right to a fair trial by seriously hindering the defendant’s ability to mount a defense based on a claimed shortened life expectancy.”19
Trial Level Courts
Other trial level courts, as well, have recognized the potential relevance of HIV-related information. In Doe v. G.J. Adams Plumbing,20 which the Supreme Court in Sutlinger Realty used as the model for the safeguards it adopted, the Oneida County Supreme Court noted the apparent relevance of the plaintiff’s HIV status with regard to life expectancy and the extent of the future damages allowable. The plaintiff, who sought damages for orthopedic injuries sustained in an accident involving an all-terrain vehicle, had moved for a protective order redacting HIV-related information and directing that only redacted copies of the plaintiff’s medical records be supplied to the defendants. The court commented that the legislative history of Public Health Law §2785 contained no mention of a legislative intent to restrict the traditionally expansive access which defendants have to a plaintiff’s medical records in a personal injury case.21
In Dwight B. v. Board of Education of the City of Newburgh,22 the infant plaintiff, who was HIV-positive and suffered from hemophilia, was allegedly left with permanent injuries after a head injury was improperly diagnosed and treated. After medical records obtained in the usual course of discovery revealed that the infant plaintiff was HIV-positive, the physician defendant served expert disclosure indicating that a hematologist would be called to testify that there was no malpractice, that the life expectancy of an HIV-positive infant is limited, and that the HIV infection most likely occurred prior to the events at issue. In response, the plaintiff moved to compel disclosure of the name and address of the hematologist, his examination before trial, his report and records evidencing an HIV-positive diagnosis. The defendant, in turn, cross-moved for an order holding that Public Health Law §278023 did not prohibit disclosure of HIV information in preparation for and at trial, or in the alternative, for an order pursuant to §2785(2) permitting disclosure of the information for, or to the jury at trial.
The Orange County Supreme Court concluded that while access to and use of HIV records are highly restricted, their use in civil cases is not prohibited, and that taken together, Public Health Law §2781(1)24 and CPLR 3121 allow for disclosure and use of HIV information when the medical condition of a party is at issue. The court stated that
[i]n bringing this action plaintiff has placed into issue not only his past and present medical condition, but seeks also to argue the permanency of his injuries. That anyone, let alone a young boy, has tested HIV positive, is a cause for great sadness. However, suppressing this information from a jury which is charged with judging his medical condition and, if appropriate, placing an award based on life expectancy, would not serve the interests of justice, and would certainly violate defendant’s right to a fair trial. For these reasons defendant’s cross motion is granted.25
The Supreme Court in G.J. Adams and in Dwight B., and both the Supreme Court and the Appellate Division in Sutlinger Realty thus recognized the relevance of the information and that ignoring the plaintiff’s HIV status would violate the defendant’s right to a fair trial. Nevertheless, the defendants in Dwight B. and Sutlinger Realty were allowed to pursue further discovery of HIV-related information, and/or utilize it at trial, only because of the inadvertent disclosure of the plaintiffs’ HIV status when medical records were produced during discovery. But for the inadvertent disclosure, the defendants would likely have been in the same position as the defendant in Del Terzo, and would not have been able to obtain disclosure regarding the plaintiff’s HIV status. In other words, if the defendant did not already have some information that the plaintiff was HIV-positive, the court would have rejected a request for the disclosure of such information as a prohibited “fishing expedition,” as did the Del Terzo court.26
These cases thus demonstrate an obvious conflict between the discovery which would normally ensue from a party’s waiver of the physician-patient privilege pursuant to the liberal disclosure provisions of the CPLR, on the one hand, and the “compelling need” standard of the Public Health Law on the other. As both the Supreme Court and the Appellate Division recognized in Sutlinger Realty, HIV-related information is relevant to an award of damages, and would enable the defendant to mount a defense based on a shortened life expectancy. Yet, unless there is a reference to a positive HIV status in the plaintiff’s medical records (which may subject the health care provider to civil and possibly even criminal penalties if the plaintiff did not authorize inspection of HIV-related treatment records),27 how is the defendant to obtain this crucial information? The defendant would be entitled to inquire into the existence of other types of pre-existing conditions, such as cancer or severe cardiovascular disease, that might limit the plaintiff’s life expectancy, and the records of treatment would be subject to disclosure under the CPLR. In terms of the defendant’s right to the disclosure of evidence that is relevant to the plaintiff’s life expectancy and which may be essential for a fair trial, the result should be no different if the pre-existing condition is HIV or AIDS rather than cancer.
Yet, as Del Terzo and Sutlinger Realty demonstrate, the current provisions, except in the case of inadvertent disclosure, allow an HIV-positive plaintiff to use §2785(2) as a “sword,” rather than a “shield,” and prevent the defendant’s access to relevant and essential information. The plaintiff can thwart disclosure of this highly relevant information, as well as records related to alcohol and drug treatment and mental health information, simply by refusing to answer questions at a deposition and/or by not checking the appropriate box on the authorization. If the defendant nevertheless learns that the plaintiff is HIV-positive, the defendant must make a showing of “compelling need,” in response to which the court “may,” rather than “shall,” direct disclosure of HIV-related information.
Particularly since the stigma attaching to HIV and AIDS appears much less significant today than in the 1980s when Article 27-F was added to the Public Health Law,28 and given the use of pseudonyms, sealing and other safeguards that may be implemented to limit the dissemination of HIV-related information, it may be time for the Legislature to reexamine the “compelling need” standard of Public Health Law §2785(2) and bring it more closely in line with the CPLR’s “material and necessary” standard.
At a minimum, in light of Sutlinger Realty, careful perusal of the records of the treatment at issue, and any prior or subsequent treatment, including pharmacy records, is essential in order to determine whether there is any basis for concluding that the plaintiff may be HIV-positive. Even if treatment records do not contain a specific indication that the plaintiff is HIV-positive, as in Dwight B. and Sutlinger Realty, it may still be possible to infer that the plaintiff is HIV-positive from the medications that have been prescribed, or if the plaintiff has received treatment for conditions frequently associated with HIV and AIDS. This would then enable the defendant to submit an expert affirmation establishing a “compelling need” for the information and explaining the impact that the plaintiff’s HIV status will have on his or her life expectancy and the efficacy of future treatment.
John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg is a partner at the firm and head of its appellate department.
1. See Allen v. Crowell-Collier Pub., 21 N.Y.2d 403, 406 (1968) (“The test is one of usefulness and reason”).
2. Public Health Law §2785(2).
3. 95 A.D.3d 551 (1st Dept. 2012).
4. In addition, the court relied on Mental Hygiene Law §§22.05 and 33.13 to hold that the defendant was not entitled to disclosure of alcohol/drug treatment information or mental health information.
5. Application of Gribetz, 159 Misc.2d 550 (Sup. Ct., Rockland County 1994).
7. See CPLR 4111(d).
8. 95 A.D.3d at 552-553.
9. Id. at 553.
10. —A.D.3d—, 947 N.Y.S.2d 153 (2d Dept. 2012).
11. Doe v. Sutlinger Realty, 33 Misc.3d 1206A, 938 N.Y.S.2d 226, 2011 N.Y. Misc. LEXIS 4715 (Sup. Ct., Kings County 2011). The court also observed that while there was no indication that defense counsel received the records containing the HIV-related information in any unethical, improper or illegal means, “it is not apparent that the medical facilities which provided defense counsel with the records are not in violation of the Public Health Law.” 2011 N.Y. Misc. LEXIS at ***5.
12. Id. at ***2.
13. Id. at ***9.
16. Id. (citation omitted).
17. Id. at ***1 – ***2.
18. 2012 N.Y. App. Div. LEXIS 4889 at * 4.
20. 8 Misc.3d 610 (Sup. Ct., Oneida County 2005).
21. Id. at 615.
22. 157 Misc.2d 1004 (Sup. Ct., Orange County 1993).
23. Section 2780(9) states that a general authorization for release of medical information will not authorize release of confidential HIV information, and that only specific reference to the release of HIV information on the authorization will permit its release.
24. Although the court referred to §2781(1), the likely intent was to refer to §2785(1), since §2781(1) refers to HIV-related testing.
25. Id. at 1007.
26. See also Budano v. Gurdon, 2012 N.Y. App. Div. LEXIS 5625, 2012 NY Slip Op 5704 (1st Dept. 2012).
27. Public Health Law §2783(1)(b) provides a civil penalty of up to $5,000 for disclosure of confidential HIV-related information in violation of §2782, and §2783(2) imposes criminal liability for willful violation of the section.
28. L. 1988. c. 584, §2.