Doe v. State

• Citation: 579 N.Y.S.2d 822,152 Misc.2d 922
• Decision Date: 04 October 1991
• Docket Number: No. 82265,82265
• Parties: Jane DOE and Joseph Doe, her husband, Claimants, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 822

579 N.Y.S.2d 822

152 Misc.2d 922

Jane DOE and Joseph Doe, her husband, Claimants, v. The STATE of New York, Defendant.

Claim No. 82265.

Claims Court of New York.

Oct. 4, 1991.

Robert F. Julian, Julian & Pertz, Utica, for claimants.

Debra S. Staley, Asst. Atty. Gen., Robert Abrams, Atty. Gen., New York State Dept. of Law, Syracuse, for defendant.

ISRAEL MARGOLIS, Judge.

Claimants, who have anonymity pursuant to a previous order of the court, petitioned that the court order the New York State Department of Corrections, a private hospital, a county coroner, and a certain municipality to show cause why a certain third party's autopsy report, medical records, death certificate, blood specimens, pathology slides, X rays, and "CT scans" should not be provided claimants. Following some extraordinary procedures the court has found necessary under section 2785 of the Public Health Law, the court has granted claimants' disclosure demand.

In their claim the Does allege, inter alia, that Mrs. Doe became contaminated with a virus which can cause AIDS when defendant's correction officers failed to restrain a certain inmate who allegedly had the virus while a patient in the hospital where Mrs. Doe worked. It is records related to this inmate which claimants seek.

According to the legislature,

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. By providing additional protection of the confidentiality of HIV related information, the legislature intends to encourage the expansion of voluntary confidential testing for the human immunodeficiency virus (HIV) so that individuals may come forward, learn their health status, make decisions regarding the appropriate treatment, and change the behavior that puts them and others at risk of infection.

. . . . .

It is the intent of the legislature that exceptions to the general rule of confidentiality of HIV related information be strictly construed. (L.1988, ch. 584, § 1).

Because the claimants' application for disclosure of allegedly confidential HIV related information was subject to the legislative interdiction as expressed in article 27-F of the Public Health Law, the court took care to protect the confidences of the decedent.

Some of the documents which claimants seek are not generally the subject of section 2785 of the Public Health Law in that they, in and of themselves, should not contain "Confidential HIV related information" as that term is defined in subdivision 7 of section 2780 of the Public Health Law. One readily recognizes, for example, that the detection of HIV infection in an autopsy does not occur because of any physician-patient relationship between the decedent and the coroner (see, e.g., Walsh v. Beckman, 29 Misc.2d 591, 215 N.Y.S.2d 398). Rather, in the usual case, we would only have to consider the additional disclosure limitations set forth under section 677 of the County Law with respect to disclosure of an autopsy report or set forth in 10 NYCRR 35.4 with respect to disclosure of a certified copy of a death certificate.

However, an order authorizing the disclosure of confidential HIV related information shall include such other measures as the court deems necessary to limit any unnecessary disclosure (see, Public Health Law, § 2785[6][d]. In our view, the legislature's extraordinary protections afforded confidential HIV related information compel us to take extraordinary measures to protect that confidentiality. We note that in the case of Flynn v. Doe, 146 Misc.2d 934, 553 N.Y.S.2d 288 it was held that article 27-F of the Public Health Law does not provide authority to provide anonymity to an AIDS patient who is a defendant in a suit alleging fraud related to sexual transmission. There, the court found the interests of the alleged AIDS victim, who had died, less compelling than if he were still alive, and further the court refused to provide a pseudonym for the true name of the alleged HIV-infected decedent. We find, however, that the protections imposed under article 27-F of the Public Health Law are broad enough to dictate that affirmative measures must be taken to ensure that confidentiality of HIV related material be maintained. In Flynn v. Doe, the court simply offered that any "confidential medical information which may become part of the record during the pendency of this action will be sealed pursuant to Public Health Law article 27-F" (146 Misc.2d 934, 937, 553 N.Y.S.2d 288).

In our view, such protection in practice is inadequate. If all that the courts had to do was seal a medical record under section 2785 of the Public Health Law, without affording the HIV infected individual with any anonymity, the legislation would be ineffective. Indeed, by sealing the confidential medical record alone, the court does allow the inference that the alleged HIV infected person had medical records relating to an HIV condition. Thus, one could assume, in a matter that alleges that a defendant or third-party infected another with the HIV virus, that if an exhibit was sealed, it contained HIV related information made confidential under section 2785 of the Public Health Law. If there were no other medical records available for public inspection as exhibits, it would be pointless to assume that that record was anything other than a health record which indicated that the patient was infected with the HIV virus.

Clearly, the legislature intended that the courts do something more than pay lip service to the confidentiality it imposed upon such records. The legislature, after all, noted...