Doe v. Roe

• Decision Date: 28 May 1993
• Parties: , 61 USLW 2796, 4 NDLR P 37 John DOE, Respondent-Appellant, v. Jane ROE, Individually, and Jane Roe, M.D., P.C., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 350

599 N.Y.S.2d 350

190 A.D.2d 463, 61 USLW 2796, 4 NDLR P 37

John DOE, Respondent-Appellant, v. Jane ROE, Individually, and Jane Roe, M.D., P.C. Appellants-Respondents.

Supreme Court, Appellate Division Fourth Department.

May 28, 1993.

Martin, Ganotis, Brown, Mould & Currie, P.C. by Mark L. Dunn, Syracuse, for appellant-respondent.

F. Gerard Plater by Michael Bersani and J.R. Biden, Public Interest Law Firm, Syracuse, for respondent-appellant.

Before DENMAN, P.J., and GREEN, BALIO, FALLON and DAVIS, JJ.

BALIO, Justice.

On this appeal, we are asked to decide whether Supreme Court properly resolved several issues of first impression concerning a physician's disclosure of her patient's HIV status to the attorney representing the patient's employer in a Pennsylvania Workmen's Compensation proceeding.

I

On April 21, 1989, plaintiff, a flight attendant employed by a commercial airline based in Pittsburgh, Pennsylvania, presented himself at defendant's office in Syracuse, New York, seeking medical treatment for ear and sinus problems. The verified complaint alleges that, in the course of that consultation, plaintiff informed defendant that he had tested HIV (human immunodeficiency virus) positive and specifically asked defendant to protect the confidentiality of that information because he was concerned that release of the information could jeopardize his employment. The complaint further alleges that defendant orally agreed to protect the confidentiality of that information.

Several months after that consultation with defendant, plaintiff filed a claim in Pennsylvania for compensation benefits pursuant to that State's Workmen's Compensation Law (Pa.Stat.Ann., tit. 77), asserting that the ear and sinus problem for which he had sought defendant's treatment was a job-related injury. In the course of that compensation proceeding, a Referee for the Pennsylvania Bureau of Workmen's Compensation signed a subpoena directing defendant to appear at a hearing to be held on April 2, 1990 at the law office of the attorneys for plaintiff's employer in Pittsburgh, Pennsylvania, and directing defendant to bring with her "all medical reports or records of any kind whatsoever relating to your treatment of" plaintiff. The attorney representing plaintiff's employer mailed that subpoena and two medical reports to defendant's office in Syracuse. Each medical report, completed and signed by a physician in February of 1987, includes a paragraph authorizing a treating physician to release medical information regarding the "above reference claim" for Pennsylvania Workmen's Compensation to plaintiff's employer and to discuss the status of plaintiff's injury with the employer. The attorney's transmittal letter advised defendant that she was not required to appear at the hearing if she submitted the requested documents directly to the attorney. Defendant forwarded her entire chart regarding plaintiff to the attorney. That chart included reference to the fact that plaintiff had tested HIV positive.

Plaintiff commenced this action to recover compensatory and punitive damages for defendant's disclosure of his HIV status. The complaint asserts five causes of action (denominated "claims") seeking recovery on different theories: negligence, breach of confidentiality, breach of oral contract, breach of implied contract, and invasion of privacy.

After joinder of issue, plaintiff moved, and defendant cross-moved, for several items of relief, including summary judgment. Supreme Court granted certain requests and denied others (Doe v. Roe, 155 Misc.2d 392, 588 N.Y.S.2d 236). Five principal issues are presented by defendant's appeal and plaintiff's cross appeal from that order: (1) whether the law of Pennsylvania, rather than New York, should have been applied to resolve the substantive issues raised by the parties; (2) whether a private cause of action exists as a remedy for a violation of Public Health Law article 27-F; (3) whether the authorizations signed by plaintiff in 1987 were sufficient to comply with that article and the related regulations of the Commissioner of Health (10 NYCRR part 63) and, if they did not comply, whether defendant's conduct violated Public Health Law § 2782; (4) whether punitive damages are recoverable for defendant's conduct; and (5) whether Supreme Court erred by dismissing the cause of action for breach of an oral promise to preserve confidentiality.

II

Defendant contends that, because the physician's disclosure was made pursuant to a subpoena issued in the normal course of a Pennsylvania Workmen's Compensation proceeding, issues concerning the propriety of that disclosure should be determined according to Pennsylvania law. We disagree.

The essence of plaintiff's action is that defendant violated her common-law and statutory duties to preserve the confidentiality of his HIV status by disclosing that status to his employer's attorney. Plaintiff does not challenge or question the denial of his compensation claim by the Pennsylvania Workmen's Compensation Appeal Board. Thus, we are not called upon to decide which state's substantive laws should be applied in resolving a claimant's entitlement to compensation benefits (cf., Cooney v. Osgood Mach. Co., 81 N.Y.2d 66, 595 N.Y.S.2d 919, 612 N.E.2d 277). The issues sub judice involve the scope of the confidentiality accorded by New York statutory and common law to a patient's HIV-related information and the enforceability of that statutory scheme by a person harmed by an improper disclosure.

Supreme Court properly determined that the substantive issues regarding the physician's duty to maintain confidentiality should be resolved according to New York law. The disclosure was made by a New York physician from her office in New York. The disclosed information concerned treatment provided to a patient in New York. The oral promise to preserve confidentiality allegedly was made in New York.

In addition, strong public policy concerns weigh heavily in New York's favor. In 1988, the New York Legislature enacted article 27-F ( §§ 2780-2787) of the Public Health Law (L.1988, ch. 584) to define, in comprehensive fashion, the confidentiality rights of those persons who were or might be infected by HIV or suffering from AIDS. The Legislature, in enacting article 27-F, declared that

"the 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"

(L.1988, ch. 584, § 1). The Legislature further declared that the strong confidentiality protections were designed to encourage voluntary testing so individuals could learn their status, make appropriate decisions regarding treatment and adjust behavior that places them and others at risk of infection (id.). New York clearly has a significant interest in the health of its citizens, and the scope and enforceability of this legislation is particularly a matter of this State's interest and concern.

New York's interests extend well beyond the context of a compensation proceeding. Plaintiff, who knew that he had tested positive for HIV, sought treatment while in New York. The strong confidentiality protections of the New York statute are intended specifically to encourage such treatment.

III

Supreme Court properly determined that plaintiff has the right to maintain a private cause of action against his physician for a disclosure of confidential HIV-related information in violation of Public Health Law article 27-F (see, Matter of V. v. State of New York, 150 Misc.2d 156, 566 N.Y.S.2d 987; Nolley v. County of Erie, 776 F.Supp. 715, both concluding that a private cause of action may be maintained for a violation of the confidentiality provisions of Public Health Law § 2782).

Public Health Law § 2783, which authorizes the imposition of criminal and civil penalties for certain violations of article 27-F, contains no express provision authorizing a private cause of action as a remedy for a disclosure made in violation of article 27-F, and specifically section 2782. Defendant contends that the existence of a private cause of action to remedy a violation of article 27-F may not be implied, principally because the Legislature's provision of remedies in the nature of a criminal sanction and a civil penalty and its failure to include additional remedies indicate an intent to limit the remedies to those expressed. We disagree.

The language of subdivision (3) of section 2783 reveals that the Legislature acknowledged a private cause of action to remedy violations of article 27-F. Subdivision (3) of section 2783 provides:

"There shall be no criminal sanction or civil liability on the part of, and no cause of action for damages shall arise against any physician or his or her employer, or health facility or health care provider with which the physician is associated, or public health officer, solely on account of:

* * * * * *

(c) the disclosure of confidential HIV related information to any person, agency, or officer authorized to receive such information, when carried out in good faith and without malice, and in compliance with the provisions of this article"

(emphasis added). That grant of immunity has meaning only if a cause of action for damages exists for a violation of article 27-F. Further, the Governor's Bill Jacket regarding enactment of article 27-F indicates that the Legislature intended to create a private cause of action to remedy violations of that article (see, Letter to Governor Cuomo from Senator Ohrenstein dated Aug. 31, 1988; Letter to Evan Davis, Esq., then Counsel to Governor Cuomo, from Assemblyman Gottfried dated Sept. 1, 1988).

We...