New York Appellate Division Construes HIV Confidentiality Law in Discovery Dispute

A unanimous five-judge panel of the New York Appellate Division ruled on June 6 that plaintiffs in a wrongful death action had failed to provide evidence necessary to show a “compelling need” for medical records that might include HIV-related information about the decedent.  The ruling, reversing a trial court discovery order, granted plaintiff’s cross-motion for a protective order “concerning records related to any HIV/AIDS status that plaintiff’s decedent may have,” and also cut down the scope of medical-related discovery generally in the case from ten years to five.  Rahman v. Pollari, 2013 Westlaw 2436231 (June 6, 2013).

According to the court’s opinion, the decedent “stopped his car on the side of an overpass on the Bruckner Expressway to close the hood,” which plaintiff alleges had “not been properly closed by defendant Speedy Lube after it performed an oil change on the car earlier that day.  While decedent was standing in front of the car, another car, driven by defendant Catherine Pollari, rear-ended decedent’s vehicle.  This caused decedent’s car to roll into him and push him off the overpass, which was apparently missing a guardrail.  Decedent was killed by the fall,” and his wife brought the wrongful death action against Pollari and Speedy Lube.

Defendants sought discovery of decedent’s medical records, as bearing on the issue of damages.  The trial court ordered that they depose the plaintiff before she would be “required to execute any authorization for the release of medical records related to physician and hospital visits made by decedent prior to his death,” but at the deposition she invoked spousal privilege and refused to answer questions about her husband’s medical history, although she did mention that he had “received social security disability benefits for an eight-year period ending approximately five years before his death.”  She would not disclose the nature of his disability.  Speedy Lube then moved to compel her to authorize release of any medical records going back up to ten years prior to decedent’s death.  There was also a dispute about inspecting the car, which was in the possession of plaintiff.  Other defendants joined in the discovery motions.

Plaintiff sought a protective order, citing Public Health Law Section 278(2)(a), which deals with confidentiality of HIV-related information in medical records.  She argued that such information was only discoverable upon a showing of “compelling need,” which defendants had not shown.  She also opposed any disclosure of medical records, arguing that defendants were on a “fishing expedition.”  The defendants responded that by invoking the HIV confidentiality law, “plaintiff had ‘suggested’ that decedent had HIV or AIDS, which was sufficient to require inspection of related medical records.”  The motion judge ruled in favor of defendants, and plaintiff appealed.

The appellate court pointed out that the normal “material and necessary” standard for evaluating a discovery request was only the first step when the HIV confidentiality law was invoked.  Normally, said the court, “it is appropriate for defendants to have access to records reflecting decedent’s health condition in the months and years prior to his death,” but “closer analysis” was necessary because the HIV confidentiality law “limits the circumstances under which a court may order disclosure of such records, and the only one applicable here mandates that the requesting party demonstrate a ‘compelling need’ for the records,” which is not automatically established by satisfying the “material and necessary” test.  Indeed, “in demonstrating a compelling need,” said the court, “the requesting party must, as a threshold matter, establish that the subject of the requested records actually has or had HIV or AIDS,” and in this case the defendant’s sole evidence on that point was that plaintiff had invoked the HIV confidentiality law in response to their discovery request.  “Defendants here have failed to offer any direct evidence suggesting that decedent had HIV or AIDS.”

Why would such information be relevant, when decedent’s death had nothing to do with HIV?  In calculating damages for wrongful death, a court is to take into account evidence that would tend to show a shortened lifespan due to factors apart from the accident that caused the death in this case, since damages in this wrongful death case would be calculated to compensate the surviving wife for pecuniary losses as a result of the death of her husband.  His projected lifetime earning capacity would thus be “relevant and material” on that issue. 

But the court was not convinced, stating that even if defendants had provided direct evidence that decedent had HIV or AIDS, “we would not find that they demonstrated a compelling need for records related to decedent’s condition.  The mere fact that decedent was infected with HIV or had AIDS would not necessarily be material in determining the pecuniary value of his life had the accident not occurred,” said the court.  Under the HIV confidentiality law, “defendants were required to present an expert affidavit linking any such condition to an expected diminution in plaintiff’s quality of life and life expectancy.  After all, without such evidence it would be impossible for the court to satisfy its obligation” as codified in the confidentiality law “to support any ruling finding a compelling need to disclose HIV and AIDS records” with written findings of fact, “including scientific or medical findings, citing specific evidence in the record” to support such a finding.  In this case, the trial judge did not make any such findings on the record before ordering that plaintiff authorize disclosure of the records.

The court said that the need for the defendants to establish compelling evidence was not obviated just because the subject of the records was deceased, since the statute still requires a finding of compelling need.  And, implicit in the court’s opinion is the understanding that because of treatment advances, there is no necessary inference to be drawn that a person’s HIV-status is, by itself, a sign of diminished life expectancy or quality of life.

In other words, the court is taking the position that plaintiffs in a personal injury case of this type are not required to authorize disclosure of medical records that might include HIV-related information about the deceased unless some special showing, based on expert testimony, demonstrates that defendants will not be able to mount a proper defense to damages claims without such information.