Hillman v. Columbia County, 90-0469

• Decision Date: 29 August 1991
• Docket Number: No. 90-0469,90-0469
• Citation: 164 Wis.2d 376,474 N.W.2d 913
• Parties: , 12 A.L.R.5th 997 Roger M. HILLMAN, Plaintiff-Appellant, v. COLUMBIA COUNTY, Columbia Sheriff's Department, James Smith, Individually and as Sheriff of Columbia County, Robert Zanow, Arthur Anacker, Vern Gove, and Gregg Zimmerman, Individually, and in Their Official Capacities as Deputies of the Columbia County Sheriff's Department, and Unknown Named Persons Employed by Columbia County in Their Individual and Official Capacities, Defendants-Respondents. d
• Court: Wisconsin Court of Appeals

Page 913

474 N.W.2d 913

164 Wis.2d 376, 12 A.L.R.5th 997

Roger M. HILLMAN, Plaintiff-Appellant, v. COLUMBIA COUNTY, Columbia Sheriff's Department, James Smith,

Individually and as Sheriff of Columbia County, Robert

Zanow, Arthur Anacker, Vern Gove, and Gregg Zimmerman,

Individually, and in Their Official Capacities as Deputies

of the Columbia County Sheriff's Department, and Unknown

Named Persons Employed by Columbia County in Their

Individual and Official Capacities, Defendants-Respondents.

d

No. 90-0469.

Court of Appeals of Wisconsin.

Argued Dec. 13, 1990.

Opinion Released Aug. 29, 1991.

Opinion Filed Aug. 29, 1991.

Charles H. Barr, argued of Charles H. Barr, S.C., Milwaukee, for plaintiff-appellant.

Virginia L. Newcomb, argued and David J. Pliner, argued of Bell, Metzner, Gierhart & Moore, S.C., Madison, for defendants-respondents.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

Roger Hillman, a former inmate of the Columbia County Jail, appeals from a summary judgment dismissing his complaint against Columbia County and county jail employees (defendants). Hillman alleged that the individual defendants disclosed to jail employees and inmates the fact that Hillman had tested HIV positive. ¹ We conclude that the trial court erred by granting summary judgment dismissing the following claims: (1) public disclosure of private facts, sec. 895.50(2)(c), Stats; and (2) violation of Hillman's constitutional right to privacy against the individual defendants. The trial court properly dismissed the following claims: (1) violation of Hillman's right to confidentiality of HIV test results, sec. 146.025, Stats; (2) invasion of privacy, sec. 895.50(2)(a), Stats; and (3) negligent and intentional infliction of emotional distress. We therefore affirm in part, reverse in part, and remand with instructions for further proceedings.

I. BACKGROUND

Hillman was incarcerated in the Columbia County Jail from September 1987 to February 1988. During that period, Hillman experienced various health problems. He was diabetic, received insulin, and monitored his blood-sugar level daily. He had tested positive for HIV antibodies in July of 1987, and experienced nausea, severe diarrhea and migraine headaches.

Hillman required hospitalization outside of the jail on several occasions. After his first hospitalization in September 1987, Hillman returned to the jail with an envelope containing a medical report. Hillman observed a number of jail employees open the envelope and handle the report.

Shortly thereafter, Hillman became aware that the fact that he was infected with the AIDS virus was general knowledge among jail employees and inmates. Believing the source of that information was jail employees, Hillman brought this action against defendants alleging: (1) violation of his right to confidentiality of an HIV test result, sec. 146.025, Stats.; (2) invasion of privacy, sec. 895.50(2)(a), Stats., and public disclosure of private facts, sec. 895.50(2)(c), Stats.; (3) negligent and intentional infliction of emotional distress; and (4) violation of his constitutional right to privacy under 42 U.S.C. § 1983.

Defendants moved to dismiss for failure to state a claim and, subsequently, for summary judgment. The trial court granted summary judgment. Hillman appeals.

II. STANDARD OF REVIEW

Section 802.08, Stats., governs summary judgment. Summary judgment methodology is well established. See Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476-77 (1980). Our review is de novo and independent of the trial court's decision. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). We initially examine the pleadings to determine whether a claim has been presented.

III. STATE LAW CLAIMS

A. Violation of Section 146.025, Stats.

Hillman alleges intentional ² and negligent violation of sec. 146.025, Stats. Section 146.025 was amended, effective November 24, 1987, by 1987 Wis.Act 70 to add the below underlined portions of sec. 146.025(5)(a)(intro.), 2., 3., 13., and (6) and delete the below stricken portions of sec. 146.025(5)(a)(intro.), 2., 3. and (6). Sections 20, 23, 27 and 36(1)(a), (b), 1987 Wis.Act 70. Hillman's complaint ³ contains allegations of disclosures occurring both before as well as after the effective date of the amendment. Section 146.025 protects the confidentiality of the results of an HIV test and provided in part:

(5) Confidentiality of Test. (a) The results of a test for the presence of HIV or an antibody to HIV may be disclosed only to the following persons or under the following circumstances, except that the person who receives a test may under sub. (2)(b) or (3) authorize disclosure to anyone:

1. To the subject of the test.

2. To a health care provider who provides care to the test subject, including those instances in which a health care provider provides emergency care to the subject.

3. To an agent or employe of a health care provider under subd. 2 who prepares or stores patient health care records, as defined in s. 146.81(4), for the purposes of preparation or storage of those records; provides patient care; or handles or processes specimens of body fluids or tissues.

4. To a blood bank, blood center or plasma center that subjects a person to a test under sub. (2)(a)....

.... 13. To a sheriff, jailor or keeper of a prison, jail or house of correction or a person designated with custodial authority by the sheriff, jailer or keeper, for whom disclosure is necessitated in order to permit the assigning of a private cell to a prisoner who has a positive test result. ⁴

....

(6) Expanded Disclosure of Test Results Prohibited. No person to whom the results of a test for the presence of HIV or an antibody to HIV have been disclosed under sub. (5)(a) or (5m) may disclose the test results except as authorized under sub. (5)(a) or (5)(m). ⁵

Hillman alleges that jail personnel learned of his HIV test results by reading his medical files. He further alleges that these individuals disclosed his HIV positive status to other jail employees and inmates.

In Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis.2d 905, 447 N.W.2d 105 (Ct.App.1989), cert. denied, 496 U.S. 929, 110 S.Ct. 2626, 110 L.Ed.2d 646 (1990), a sheriff informed reporters that an inmate had exposed jailers to AIDS by slashing his wrists. Id. at 909, 447 N.W.2d at 107. The inmate argued that "he was deprived of his right to confidentiality under sec. 146.025[, Stats.,] when the newspapers published reports that he had AIDS." Id. at 921, 447 N.W.2d at 112. Rejecting the inmate's argument, the court stated:

The trial court correctly determined that sec. 146.025 is directed toward health care providers and blood banks, and not toward newspapers. Section 146.025(6) prohibits further disclosure of test results by persons learning of the results from the health care provider or from the blood bank; however, the newspapers did not obtain the test results under either of those subsections. Therefore, summary judgment was appropriate.

Id. at 922, 447 N.W.2d at 112.

Arguing that the discussion of sec. 146.025, Stats., by the Van Straten court was cursory, Hillman contends that sec. 146.025 should be interpreted expansively to impose liability for disclosure of HIV test results not only to those persons and entities listed in sec. 146.025(5)(a), Stats., but also to members of the general public.

The cardinal rule in all statutory interpretation is to discern the intent of the legislature. Employers Ins. of Wausau v. Smith, 154 Wis.2d 199, 226, 453 N.W.2d 856, 867 (1990). The primary source of statutory interpretation is the language of the statute itself. Robert Hansen Trucking, Inc. v. LIRC, 126 Wis.2d 323, 332, 377 N.W.2d 151, 155 (1985).

If a statute is plain and unambiguous, a court must apply its plain meaning, without resort to rules of construction. Boles v. Milwaukee County, 150 Wis.2d 801, 813, 443 N.W.2d 679, 683 (Ct.App.1989). A statute is ambiguous if reasonable persons could disagree as to its meaning. Sonnenburg v. Grohskopf, 144 Wis.2d 62, 65, 422 N.W.2d 925, 926 (Ct.App.1988).

Section 146.025, Stats., does not specifically state who may be found liable for disclosure of HIV test results. We believe reasonable persons could disagree as to the scope of sec. 146.025. We thus examine the "scope, history, context, subject matter and object of the statute" to discern legislative intent. Schinner v. Schinner, 143 Wis.2d 81, 89, 420 N.W.2d 381, 384 (Ct.App.1988).

Section 146.025, Stats., was enacted in 1985. Section 1962gm, 1985 Wis.Act 29. The first entry in the drafting record is a letter from Representative David Clarenbach to Representative Jeff Neubauer, stating in part:

Listed below are the points Rep. John Robinson and I would like included in the budget bill relating to confidentiality and the testing for Acquired Immune Deficiency Syndrome (AIDS) antibody. The purpose of this amendment, which is patterned after the recently enacted California statute, is to guarantee the confidentiality of people whose blood is tested by private or public physicians, clinics or research facilities.

As enacted in 1985, sec. 146.025(1), Stats., provided in part:

(b) No person may disclose the results of a test to screen for the existence of an antibody to the human virus HTLV-III causing acquired immunodeficiency syndrome, except that the test results may be disclosed as follows:

1. To the subject of the test.

2. To the health care provider.... ⁶

Similarly, sec. 199.21 of the California Health and Safety Code provides in part:

(a) Any person who negligently discloses results of a blood test to detect antibodies to the probable causative agent of acquired immune deficiency syndrome to any third party, in a manner which identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization ... shall be assessed a civil penalty.......