Doe v. Roe

• Decision Date: 11 September 1992
• Citation: 588 N.Y.S.2d 236,155 Misc.2d 392
• Parties: John DOE, Plaintiff v. Jane ROE, Individually, and Jane Roe, M.D., P.C., Defendant.
• Court: New York Supreme Court

Page 236

588 N.Y.S.2d 236

155 Misc.2d 392

John DOE, Plaintiff v. Jane ROE, Individually, and Jane Roe, M.D., P.C., Defendant.

Supreme Court, Onondaga County.

Sept. 11, 1992.

Public Interest Law Firm, Syracuse University College of Law (Barry Strom, of counsel), Syracuse, for plaintiff.

Martin, Ganotis, Brown, Mould & Currie (Mark L. Dunn, of counsel), Syracuse, for defendant.

BERNARD L. REAGAN, Justice.

This action involves a New York doctor's alleged improper disclosure of confidential HIV related (AIDS) information to an out-of-state Workers Compensation Board. Many various and sensitive issues of first impression have necessarily been decided by this Court with respect to the patient's rights and remedies under both the traditional physician-patient privilege encompassed in CPLR § 4504(a) and Public Health Law Article 27-F.

A. FACTS:

For the purposes of the pending motions the following facts are not in dispute: Plaintiff, John Doe (an assumed name agreed upon by the parties), a 38 year old male resident of Ohio, has been employed as a flight attendant with a commercial airline, since 1978. From 1987 to the present, plaintiff has been employed in this capacity and based out of the airline's facilities in Pittsburgh, Pennsylvania. On or about February 6, 1987, plaintiff allegedly suffered or exacerbated certain sinus/ear medical problems during the course of his employment. As a result, he filed a Workers Compensation claim with the State of Pennsylvania Bureau of Workers Compensation (Claim # 1). ^* (1) In connection with this claim, plaintiff executed two medical authorizations on or about February 9th and 24th, 1987. The authorizations were identical and provide that:

"I hereby authorize the physician and/or hospital providing treatment to complete this Medical Report. I further authorize the physician and/or hospital providing treatment to release medical records to the above reference claim to representatives of [the airline] and to discuss the status of my injury with representatives of [the airline]."

On April 21, 1989, plaintiff consulted defendant, Dr. Jane Roe, M.D., P.C. (an assumed name agreed upon by the parties) at her office in Syracuse, New York. The purpose of this visit was for treatment of plaintiff's ear and sinus problems. Plaintiff informed Dr. Roe that he was HIV positive and described his HIV medical history so "she could take proper precautions" for any intrusive body tests such as the drawing of his blood. Moreover, he related this information based on his belief that "it might be relevant to her treatment of (his) sinus and ear problems." It is alleged that Dr. Roe specifically agreed to keep this HIV information confidential and not release it without a written authorization.

On May 14, 1989, shortly after plaintiff's visit with Dr. Roe, his ear and sinus problems allegedly became aggravated during the course of his employment. He filed another claim (Claim # 3--See Footnote # 1) concerning this "injury" with the Pennsylvania Board of Workers Compensation on October 5, 1989. On March 5, 1990, the Pennsylvania Workers Compensation referee signed a subpoena which directed Dr. Roe to appear at an April 2, 1990 hearing in Pittsburgh and to bring with her "all medical reports or records of any kind whatsoever relating to your treatment of [John Doe]".

On March 13, 1990, a Pennsylvania attorney acting on behalf of the airline in the compensation proceeding, sent the referee's subpoena and the medical authorizations signed by plaintiff in Claim # 1 to Dr. Roe. In response to the subpoena, Dr.

                Roe forwarded a copy of plaintiff's entire chart and [155 Misc.2d 396] file on March 19, 1990.   Plaintiff's file contained, inter alia, information that he had tested HIV positive. *  (2)
                

B. THE COMPLAINT:

Plaintiff's complaint asserts five causes of action against the defendant and her corporation: 1) Negligence per se; 2) Breach of Confidentiality; 3) Breach of Oral Contract; 4) Breach of Implied Contract; and 5) Invasion of Privacy. All of these causes of action are alleged to have been incurred as a result of defendant's "knowing, deliberate and intentional" conduct. With respect to damages, plaintiff seeks: a) $10,000.00 special damages; b) general damages for pain and suffering (and) loss of wages; and, c) $50,000.00 in punitive damages.

C. PLAINTIFF'S MOTION:

In response to the complaint, defendant has asserted ten "affirmative defenses" which plaintiff seeks to dismiss for the reasons stated below. At this juncture it is appropriate to preliminarily note that while the complaint involves many sensitive issues and intricate points of law, it does not allege or attempt to allege a cause of action for medical malpractice against defendants. Accordingly, to the extent defendants seek summary judgment dismissing the complaint on the issues of wrongful statement of damages or for lack of a medical certificate under CPLR § 3012-a, 3017[c], such an application is without merit, is denied and plaintiff's application to dismiss affirmative defenses relating to medical malpractice is granted. (cf. Tighe v. Ginsberg, 146 A.D.2d 268, 540 N.Y.S.2d 99).

(1) Failure to State a Cause of Action

Plaintiff has characterized his action as one for a breach of fiduciary duty not to disclose confidential information and for breach of an oral contract, notwithstanding his separately pleaded five causes of action. In written questions propounded by the Court, it was asked whether all causes of action were subsumed by a single cause of action for the breach of the fiduciary duty of non-disclosure (See Tighe v. Ginsberg, supra). In response, plaintiff has now conceded that, in the circumstances of this case, four of his claims coalesce into one action for breach of fiduciary duty, i.e., negligence per se (cause 1); breach of confidentiality (cause 2); breach of implied contract (cause 4); and invasion of privacy (cause 5). Accordingly, causes of action numbers 1, 4 and 5 are dismissed.

(a) Breach of Fiduciary and Statutory Duty

With respect to the claim of breach of fiduciary duty, plaintiff notes that this claim is framed not only upon the traditional grounds of the physician/patient relationship and privilege of CPLR 4504(a) as recognized in Tighe, supra and MacDonald v. Clinger, (84 A.D.2d 482, 446 N.Y.S.2d 801), but also on the independent special duties imposed upon physicians by statute in Public Health Law Article 27-F with respect to disclosure of HIV related information concerning their patients. While a separate cause of action is not pleaded for violation of Public Health Law Article 27-F, it is clear that cause of action # 2 is, in reality, two causes of action: (1) for breach of the physician-patient fiduciary duty of confidentiality recognized in CPLR § 4504(a); and, (2) for breach of the statutory duties imposed upon physicians with regard to disclosure of confidential HIV related information under Public Health Law Article 27-F. Plaintiff has made out a prima facie case for breach of a fiduciary or statutory duty under either theory espoused above. The motion to dismiss cause of action # 2, for failure to state a cause of action is denied.

(b) Breach of Oral Contract--Consideration--Duty of HIV

Infected patient to Disclose Disease to Doctor

Plaintiff contends however, that his claim for breach of an oral contract (cause # 3) is not subsumed by either the breach of a statutory or fiduciary duty, but relies instead upon Dr. Roe's alleged independent, oral promise not to reveal plaintiff's HIV related information. In this regard, plaintiff notes that Tighe did not deal with The Court especially notes that plaintiff claims his "consideration" for this alleged independent contract with defendant to maintain confidentiality was his disclosure to defendant that he was HIV positive so that defendant and her office personnel could take necessary precautions to prevent their own infection with this deadly disease. Plaintiff concedes a moral duty to inform Dr. Roe, but contends he had no legal duty to disclose his HIV status to Dr. Roe, when it became apparent the physical testing might become bodily intrusive, e.g. by the drawing of his blood. This Court disagrees.

                an independent oral doctor/patient "contract" not to disclose confidential information.   However, the court in Tighe, (supra, 146 A.D.2d at 271, 540 N.Y.S.2d 99) emphasized that the gravamen of plaintiff's complaint in these matters is not malpractice or, as is here, one of contract, but rather concerns a doctor's alleged failure to fulfill a duty not to disclose confidential information.   Indeed, as a practical matter, plaintiff concedes that if a cause of action for breach of a fiduciary or statutory duty is upheld, there is little reason for him to attempt to prove the alleged oral contract.   This is a [155 Misc.2d 398] practical decision because plaintiff would be limited to strictly economic loss on a mere "contract" claim (See Tighe at 271, 540 N.Y.S.2d 99)
                

In New York State Society of Surgeons v. Axelrod, 77 N.Y.2d 677, 569 N.Y.S.2d 922, 572 N.E.2d 605), the court, in the limited review of a CPLR Article 78 proceeding, held that the State Department of Health's (DOH) determination that AIDS need not be added to the list of communicable and sexually transmissible disease was a rational determination. This decision was based upon the policy enunciated in Public Health Law Article 27-F to promote voluntary testing for HIV infections and the recognition that, were AIDS added to DOH's lists as a "communicable or sexually transmitted" disease, certain mandatory reporting, testing, quarantine and contact tracing would ensue. The Court did not address the issue of whether or not defendant had a legal duty to disclose a known infection to the health care provider. That AIDS, in reality, is communicable and may also be sexually transmitted is and was not disputed (See Matter of Doe v. Coughlin, 71 N.Y.2d 48, 57, 60, 523...