HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/DROE.ASC

Text File | 1993-01-14 | 32KB | 653 lines

/*  This case is reported in 526 N.Y.S.2d 718. In this child
custody case, a parent who has custody was requested by parties
seeking to change custody to be required to take an HIV test as a
precondition of maintaining custody. The court ruled (rather
forcefully) that since HIV is not passed by casual contact that
such testing would not be required. */

Jane and John Doe, Petitioners,

v.

Richard Roe, Respondent.

Supreme Court, New York County, IAS Part 20.

March 14, 1988



KRISTIN BOOTH GLEN, Justice:

This motion brought pursuant to CPLR  3121 raises an important
question not previously addressed in any written or reported
decision concerning the obligation of a parent seeking to retain
custody of her/his child to submit to a compulsory test for AIDS.
In addition to the general questions which apply in determining
3121 motions, this application presents issues of privacy, public
policy and Fourth Amendment rights.  Further, the special
characteristics of AIDS and AIDS testing, the potential
stigmatization of persons identified as suffering from AIDS or
infected with the so-called AIDS virus, and other detriments of
non-consensual mandatory testing for this dread disease suggest
that a much stricter standard than materiality and relevancy
should be employed where AIDS testing is at issue.

To place the issues in context, a brief summary of the facts may
be useful.



FACTS

Respondent father is the present and long-term custodian of two
minor children. Petitioners, the maternal grandparents, have
obtained certain information, otherwise inadmissible, that
respondent has told various persons that he is suffering from
AIDS.  When asked on the stand, in the course of the custody
hearing, whether he had in fact made such statements or whether
he suffered from AIDS, the respondent asserted his Fifth
Amendment privilege. Based on this assertion of privilege, I drew
a negative inference as permitted by law.

Thereafter, petitioners moved for an order compelling the
respondent to submit to a physical examination, specifically "an
examination to test for AIDS" (Acquired Immune Deficiency
Syndrome).  The motion did not indicate whether the "test"
required was a general physical examination which might indicate
that respondent was actually suffering from AIDS, or a blood test
to determine whether he was seropositive for the HIV antibody.
Respondent opposes any blood test, although he consents to
undergoing a physical examination. The question is, therefore,
what standard must be met, or what showing made before an
involuntary AIDS test can be compelled.  Before this question can
be addressed, the present level of knowledge concerning AIDS and
AIDS testing, as well as special problems such testing raises,
relevant case law and clearly expressed public policy must all be
reviewed and considered.



THE PRESENT MEDICAL UNDERSTANDING OF AIDS AND HIV-SEROPOSITIVITY

AIDS is the clinical manifestation of a dysfunction of the human
immune system caused or at least widely thought to be caused by a
recently discovered virus. Logallo, et al., Frequent Detection
and Isolation of Cytopathic Retroviruses (HTLV-III) from Patients
with AIDS and at Risk for AIDS, 224 Science 500 (May, 1984). The
AIDS  virus  has  received several names:  Human T-Lymphotrophic
Virus Type III (HTLV-III); Lymphadenopathy-Associated Virus
(LAV); AIDS-Associated Retrovirus (ARV); and, most recently, Hu
man Immunodeficiency Virus (HIV).  Coffin, et al., Human
Immunodeficiency Viruses (Letter) 232 Science 697 (May, 1986)
(Proposing HIV Terminology).

Persons who are infected with the HIV virus fall into three
categories. The first, or what is commonly referred to as AIDS,
is the most severe form of the infection,  and most victims of
the disease die within two years.  It is characterized by a break
down of the immunological system and the presence of one or more
opportunistic infections such as Kaposi's sarcoma and
Pneumocystis Carinii pneumonia. The second possible form of
infection is AIDS-Related Complex (ARC) a milder degree of
immunodeficiency characterized by a number of symptoms including
swollen lymph nodes, persistent fever, fatigue, etc.  The third
and most common form of infection is asymptomatic, which results
in no abnormal infections.  There is no certainty that persons in
the third category will ever develop either ARC or AIDS itself,
although it is predicted that some twenty-five (25%) to fifty
(50%) percent of persons infected with the virus will develop
AIDS within five to ten years of the initial infection. Inst. of
Med., Nat'l. Acad. of Science, Confronting AIDS:  Directions for
Public Health, Health Care and Research, 91 (1986).

As of November 9,1987, the total reported number of persons with
AIDS (that is, the most virulent form of the disease) in the
United States reached 44,795, over the half of whom have died.
Fed. Center for Disease Control (CDC), Weekly Surveillance Report-
United States AIDS Program, (November 9, 1987).  The group of
persons who are infected with the HIV virus but who are suffering
neither from AIDS nor from ARC, commonly referred to
"seropositives" in the U.S. is estimated to be between 1-1 1/2
million.  Public Health Service Plan for the Prevention and Con
trol of AIDS Virus: (Report of Coolfont Conference), June 4-6,
1986 at 4, reprinted in principal part in 101 Pub. Health Rep.
341 (July-Aug. 1986).  According to an estimate of Dr. James
Curran at the Center for Disease Control, of men between the ages
of 20 and 50, approximately 1 in 30 carries the virus. AIDS:
Statistics But No Answers, 236 Science 1423, 1425 (June 12,
1987).



MEDICAL ASPECTS OF AIDS TESTING

To speak of an examination for AIDS, therefore, is to propose a
number of entirely distinct possibilities. First, an individual
could be subject to a general physical examination which, if s/he
were suffering from full-blown AIDS would likely reveal one of
the characteristic opportunistic infections.  Second, the
symptoms of ARC might also be apparent in a general physical
examination, although confirmation of the disease and the cause
of the symptoms might be dependent on a blood test.  The third,
and the most commonly used notion of an "AIDS test" is a blood
test which simply shows whether the individual tested is
seropositive for the HIV antibody.

Demonstration of the  extraordinarily high level of false-
negatives and positives from the original AIDS blood test has led
to the standard use of a two-part process. The Enzyme-Linked
Immunosorbent Assay (ELISA) test is the initial screening test.
[footnote 1] The second step of the testing process is the
confirmatory test; the primary confirmatory test now in use is
the Western Blot Test. [footnote 2] Even this two-part testing
protocol may however, produce errors.

The test may register negative in the early stages of viral
infection before the anti-bodies have been sufficiently mobilized
to show up as positive on an antibody test. This incubation
period-the time between infection and antibody reaction-usually
lasts about six weeks but may be as long six months or more.
[footnote 3]  False-positives can also occur. [footnote 4]
Finally, even these accuracy rates assume that the test is
performed properly.  The accuracy rates of commercial
laboratories offering the test vary widely, including up to 20%
false-positivity rates on pretested samples. [footnote 5]

A blood test is, therefore, no guarantee either that the person
tested has or does not have AIDS or the HIV antibody.  Be side
these technical difficulties, however, non-voluntary AIDS testing
presents a number of problems which have been recognized by
authorities involved in the field.



SPECIAL PROBLEMS OF AIDS TESTING

The lack of absolute reliability, threat to civil liberties,
potential ostracization, and psychic harm which may occur from
mandatory testing have resulted in most experts and organizations
including the Surgeon General of the United States, the United
States Public Health Service, The American Medical Association,
and most state and local health departments including New York's
opposing mandatory non-voluntary testing.

A person who has been involuntarily tested for AIDS and receives
a positive result may suffer a number of possible injuries.
Perhaps  first  and  foremost among these is the danger of
stigmatization and ostracism which may result. The AMA Board of
Trustees has written

...  the stigma which accompanies a diagnosis of AIDS, based on
fear and society's attitude towards IV drug abusers and
homosexuals presents a factor beyond the control of the infected
individual or medicine. An HIV-Seropositive individual who might
live five years or much longer with no overt health problems,
once identified in a community, may be subject to many and varied
discrimination, by family and loved ones, neighbors and friends,
employers and fellow employees, and other providers of services.

AMA Board of Trustees Report, Prevention and Control of Acquired
Immunodeficiency Syndrome: An Interim Report, 258 J.Am.Med.Assn.
2097, 2098 (1987).  In addition, the psychological impact of
learning that one is seropositive has been compared to receiving
a death sentence.  Sequelae include severe stress and depression,
including possible contemplation of suicide. [footnote 6] Besides
these social and psychological dangers, mandatory AIDS testing
also raises serious Fourth Amendment questions.

[1]  It is well-established that an involuntary blood test
constitutes a search and seizure within the Fourth Amendment's
scope requiring probable cause.  Schmerber v. California, 384
U.S. 757, 86 S.Ct. 1826,16 L.Ed.2d 908 (1966). Where a bodily
intrusion may additionally endanger the health of the person
sought to be tested (including, of course, mental health), a
compelling need must be shown. See Winston v. Lee. 470 U.S. 753,
105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The law on mandatory
testing to detect the presence of drugs is in a process of
evolution, but those tests have also been declared
unconstitutional under the Fourth Amendment absent a reasonable
suspicion of impairment on the job or a truly compelling state
interest in regulating a particular industry. See, e.g., Caruso
v. Ward, 131 A.D.2d 214, 520 N.Y.S.2d 551 (1st Dept.1987).

This amalgam of problems has resulted in opposition to
involuntary AIDS testing by such groups as the ACLU, see National
ACLU Policy  268, "Communicable Diseases and AIDS" adopted July
16, 1986.

The Association of State and Territorial Health Officials (ASTHO)
has also taken a position with regard to the availability of
information concerning HIV testing in response to court subpoena.
In the absence of legislation proposed by ASTHO the organization
proposes

Public Health agencies should advocate that court orders for
disclosure of name-linked information should not be issued except
when compelling reasons for disclosure are demonstrated.
(emphasis added).

Astho, Guide to Public Health Practice: AIDS Confidentiality and
Anti-Discrimination Principles: Interim Report at p. 7 (November,
1987).

While there is no consensus under what circumstances the
extraordinary remedy or involuntary testing should take place, it
is clear that the medical, psychosocial, and legal ramifications
of such testing place it on an entirely different plane than
other, non-invasive or minimally invasive procedures.  This
information must be taken into account whenever an  involuntary
AIDS test is sought, and must be part of the balancing process in
which a court en-gages.



CASE LAW ON TESTING

Surprisingly few cases have been found in which an AIDS test, or,
more accurately, HIV antibody test was sought in a court setting.
In the first reported New York case, Glass v. McGreevy, 134
Misc.2d 1085, 514 N.Y.S.2d 622 (S.Ct. Rensselaer Co. 1987) the
court held that it was improper and an abuse of discretion to
impose the condition of a negative AIDS test prior to release on
bail.

/* This case is reported in this service. */

In Matter of Department of Social Services o/b/o Troy C.
(Anonymous) v. Janice T. (Anonymous), 137 A.D.2d 527, 524
N.Y.S.2d 267 (1988) the Second Department reversed an order
directing an AIDS test for a woman who bit a deputy sheriff while
he was attempting to execute a warrant in a neglect proceeding.
The Court did not have to consider whether a stricter standard
was required in the AIDS setting since it found, pursuant to
F.C.A. Sections 251 and 1038-a, that the results of a blood test
were not even "reasonably related to establishing the
allegations" (supra, at 528, 524 N.Y.S.2d 267) in the neglect pro
ceeding.

In one unreported Family Court abuse proceeding where the
respondent mother was charged with biting her son and the son had
threatened suicide because of his fear of contracting AIDS, the
judge withdrew his order after being apprised of the City's
position against involuntary testing by representatives of the
Human Resources Administration and the City Corn-mission on Human
Rights. In the Matter of Michael P. (CSS), Docket No. N1456/86,
(Fam.Ct., Richmond Co. 1986), order with-drawn, Matter of Joann
B., Docket No. N1459-61/86 (Fam.Ct. Richmond Co. 1986), reported
in Staten Island Advance, February 3, 1986 at A1, and February
13, 1986 at A1 and A6.

There are also several unreported decisions from other states
which have arisen in custody disputes.  In one such case in
volving a request for an HIVS-antibody test, an Ohio court
refused to order a gay father to submit to such testing as a
condition for visitation despite a request by his ex-wife, the
custodial parent. In the Matter of Smalley, No. 83-112,
Dom.Rel.Ct., Muskingum Co., filed 12/86; reported in Lambda, AIDS
Update, vol. 2, no. 1, June/July 1987, at 4. Accord Doe v. Doe,
No. 78D 5040 (Cir.Ct. Cook Co., 111.1978); JR. v. L.R. (Cir.Ct.
St. Louis Co., Mo.1986); In re Marriage of Grein, No. 80-C-72
(Cir.Ct. Champaign Co., Ill.1988) (mother, a nurse treating AIDS
patients required to inform court and father concerning her
patients, but no test ordered). [footnote 7]  However, none of
these cases considered the public policy aspects involved in
involuntary AIDS testing, particularly where the relevant public
policy was clear and unambiguous.





NEW YORK PUBLIC POLICY ON AIDS TESTING

[2]  The clear position of state and city health officials has
been a virtually complete ban on involuntary testing for the HIV
virus.  Laboratories which may conduct the tests are limited in
number and subject to strict regulation. They are specifically
prohibited from conducting any test in the absence of a signed
consent form. 10 N.Y.C.R.R.  58-1.1 (last amended October 1,
1987) (State regulation); New York City Department of Health
Commissioner's Regulations, HIV/HTLV-II, LAV Antibody Testing,
September 3, 1986 (City regulation). Thus, even if a court were
to order a test, no laboratory authorized and equipped to perform
it would be able to do so without violating the law. [footnote 8]

The State and City have demonstrated a similar concern for the
confidentiality of records of persons already tested and found to
be infected with AIDS.  Such records are specifically subject to
the confidentiality requirements of Pub.Health L.  206(1)(j)
(McKinney 1971 & Supp.1988); 10 N.Y.C.R.R.  24-1.2 (effective
December 23, 1985); see also New York City Health Code  11.07(a)-
(b) (as amended September 27, 1983). [footnote 9] The Department
of Health has proposed a Bill to create a new Article 27-H of the
Public Health Law. N.Y.C. Draft of Proposed "AIDS Confidentiality
Bill" (circulated by NYC Department of Health January 11, 1988 as
"8s Health



This proposed legislation would further strengthen and clarify
legal protections for confidentiality of AIDS records. One of its
provisions, reflecting the current policy of health officials,
would prohibit turning over such confidential information, even
pursuant to court order, absent a showing of "compelling need for
disclosure which cannot otherwise be accommodated in a civil or
criminal proceeding."  (Emphasis added). Pub. Health L. Proposed
2797(2)(h)(i). This, it should be noted, deals with compulsory
protection of records only after a person has voluntarily been
tested. The testing itself is, of course, a far greater
intrusion.

[3]  Existing regulations and laws, as well as the stated policy
of responsible Health Departments and health officials
demonstrate  a  public  policy  militating strongly against court
interference in the confidentiality of existing records, and
unalterably opposed to judicially coerced nonvoluntary testing.



PHYSICAL EXAMINATIONS AND TESTS PURSUANT TO CPLR  3121

CPLR  3121(a) provides as follows: After commencement of an
action in which the mental or physical condition or the blood
relationship of a party ... is in controversy, any party may
serve notice on another party to submit to a physical, mental or
blood examination by a designated physician...

CPLR   3121(a)  (McKinney Supp.1988). The party seeking such
examination must meet two burdens.  First, s/he must demonstrate
that the other party's mental or physical condition is actually
"in controversy". &e, e.g., Koump v. Smith, 25 N.Y.2d 287, 303
N.Y.S.2d 858, 250 N.E.2d 857 (1969).

Second, the party seeking the test or examination must ordinarily
demonstrate that the evidence sought is "material and necessary"
pursuant to CPLR  3101(a) (McKinney Supp.1988), referable to
disclosure under CPLR  3121(a), see Koump v. Smith, 8upra.  If
these burdens are met, the party opposing the test may assert
that the material or examination is privileged under CPLR
3101(b) and CPLR  4504. As to this issue, the opposing party has
the burden.

The requirement that the movant show the requested test or
physical examination to be only material and relevant is not,
however, universally applied. Section 3121 is generally employed
in personal injury actions where a plaintiff who seeks monetary
recovery can be deemed to have waived privacy and confidentiality
claims about relevant physical information by virtue of
commencing her/his lawsuit. Virtually all of the case law under
the section has arisen in this context.

More recently, however, physical tests have been sought from
defendants, posing an entirely different conceptual situation
because of their involuntary participation in the action.
[footnote 10]  Professor Siegel suggests that this may require a
"stronger showing" than is necessary in the usual case.  This
suggestion has already been implicitly adopted in the family law
setting.

[4]  Thus, where the physical condition of the defendant is in
controversy and the evidence sought is arguably material and
relevant but where there are other, less intrusive ways of
proving the facts in controversy, a blood test will not be
ordered. See In Re Ivette D., 118 Misc.2d 434, 460 N.Y.S.2d 718
(Fam.Ct. Kings Co.1983). [footnote 11] Courts have also refused
to order tests, even though material and relevant where the
result of such tests would unnecessarily stigmatize the parties.
See Hill v. Hill, 20 A.D.2d 923, 249 N.Y.S.2d 751 (2d Dept.
1964); 1n Re Ivette D., supra.

[5]  There is, therefore, authority for flexible application of
Section 3121 depending on the context in which the test is sought
and the nature of the test itself. Based on the special
characteristics and dangers of AIDS testing and on the strong
public policy of confidentiality and insistence in voluntary
testing, I hold that the most stringent test-that is, a showing
of compelling need-must be met before an involuntary test for the
HIV antibody may be ordered.



EFFECT OF RESPONDENT

HAVING AIDS

It is important to note what is not at issue here.  There is no
claim, nor could there be on the available medical evidence, that
the children would be in danger from living with respondent if he
were seropositive.

The overwhelming weight and consensus of medical opinion is
clear; the HIV virus is not spread casually. Rather, it has
specific and well-known  modes of transmission, through sexual
contact, exposure to infected blood or blood components, and
prenatally from mother to infant. Recommendations for Prevention
of HIV Transmissions in Health Care Settings, 36 Morbidity and
Mortality Weekly Report 35 (August 1987).  A recent summary of
HIV infection routes concludes that the three routes discussed
above "still remain the only ones demonstrated to be important",
Freedland and Klein, Transmission of the Human Immunodeficiency
Virus, 317 N.Eng.J.Med. 1125 (1987).

Numerous studies have found no risk of HIV infection through
close personal contact or sharing of household functions.

See, J. Curran et al., Epidemiology of HIV Infection and AIDS in
the United States, 239 Science 610, 615 n. 45 (February 5, 1988);
e.g., Lawrence, HTLV-III/LAV Antibody Status of Spouses and
Household Contact Assisting in Home Infusion of Hemophilia
Patients, 66 Blood 703, 704-05 (1985). These studies have figured
prominently in decisions by federal and state courts upholding
the rights of HIV-infected children to attend public schools
(see, e.g., Ray v. School District of Desoto County, 666 F.Supp.
1524,1530-32 (M.D.Fla.1987); Thomas v. Atascadero Unified School
District, 662 F.Supp. 376, 380 (C.D.Cal.1987); District 27
Community School Board v. Board of Education of the City of New
York, 130 Misc.2d 398, 502 N.Y.S.2d 325 (Sup.Ct. Queens Co.1986).
Cf Jane W v. John W, 137 Misc.2d 24, 519 N.Y.S.2d 603 (Sup.Ct.
Kings Co.1987) (father suffering from AIDS not precluded from
visitation with one-and-a-half-year old daughter).

[6]  Instead, petitioners make two other claims. They are: (1)
"that a person with AIDS, among other reasons, has a minimal life
expectancy, which is certainly a consideration in the courts
awarding temporary or permanent custody"; and (2) "the court will
want to consider if a person facing a death-threatening illness
is prone to take his own life and that of others."

It is well-settled that the fact of a handicapping condition
alone cannot deny custody to an otherwise qualified parent, e.g.,
Hatz v. Hatz, 116 Misc.2d 490 (Fam.Ct. Rensselaer Co.1982),
citing the leading case of Carney v. Carney, 24 Cal.3d 725, 598
P.2d 36 (1979).  The question which must be answered is the
effect, if any, of the handicapping condition on the child or
children.

The expert psychiatrist appointed by the court, interviewed all
parties and the children. His testimony was clear that even if
the respondent were suffering from AIDS and bad a shortened life
span, this fact would not justify removing the children from
their long-term custodial parent with whom they have such strong
bonds of love and affection. In addition, again assuming that the
respondent actually suffered from AIDS, the expert witness felt
that respondent's knowledge of the disease would create no danger
to him or to the children. Finally, the expert testified that he
saw no evidence of any suicidal ideation.

The psychiatrist was asked to assume the worst case scenario
precisely to determine whether a test or examination would
produce evidence necessary or relevant to this proceeding.  Since
it is the expert's opinion that infection with AIDS would not
justify removal of these children from their loving long-term
custodial parent, the need for such information, if it must be
involuntarily compelled, cannot be justified.





CONCLUSIONS

AIDS is a terrible and tragic reality in our city, state, nation,
and world.  Although many approach AIDS victims with sympathy and
compassion, AIDS has all too frequently been the occasion for dis
crimination, stigmatization, and hysteria. As an institution
which is and should be a bulwark against discrimination of all
kinds, the court system must be especially wary about attacks on
individual and social rights made in the guise of health-related
AIDS claims.

I have no reason to believe, and do not mean to suggest that the
petitioners in this case acted in other than good faith in
bringing on this application. Nevertheless, the potential for
misuse in other cases cannot be overlooked, particularly when cou
pled with possible racism or homophobia, given the composition of
the major groups "at risk" for AIDS.  Accordingly, the re
quirement of showing a compelling need for involuntary testing in
civil litigation must be recognized and enforced by the courts in
this painful and troubled time.



[7]  For the reasons discussed above and on the facts of this
case, I find that no compelling interest has been shown. Even if
the more lenient test of relevancy and materiality were applied,
however, petitioners have not met their burden here. [footnote
12] Accordingly, the motion, insofar as it seeks an involuntary
blood test for the HIV antibody is denied. [footnote 13]



1.   The ELISA test is highly sensitive to HIV anti-bodies. so
much so that its potential for error is to "overreact" resulting
in a false-positive. The New York Blood Center has found that 1-3
percent of donors are repeatedly positive on the ELISA test and
that 90% of those are negative on the confirmatory test. A study
conducted by the Atlanta Red Cross and the CDC in 1935 tested
61.190 units of blood, finding 569 to be initially reactive on an
ELISA test but 171 repeatedly ELISA reactive.  Of the 150 which
were tested further. only 40 were confirmed as positive. Ward et
al., Laboratory and Epidemiologic Evaluation ol Enzyme Immuno
Assay for Antibodies to HTLV-Ill, 256 J.Am.Med.Assn. 357 (1986).

2.   The Western Blot became the first confirmatory test to be
licensed by the Food and Drag Administration shortly after the
CDC conference on testing.  Biotec Research, DuPont AIDS Cleared
by the FDA, Wall Street Journal. May 1, 1937 at 5.

3.   See. e.g., Marlink et al., Low Sensitivity of ELISA Testing
in Early HIV Infection. 315 New Eng.J.Med. 1549 (1986).

4.   The predictive value for seropositivity of an ELISA positive
confirmed by a Western Blot has been estimated at 90.9% in a
population in which the level of infection is .05%. For every one
hundred people who test positive in that group, 10 will be false-
positives. Davis, Serologic Tests lor the Presence of Antibody to
Human T-Lymphothropic Virus Type 111(1986), Table 111 at 17.

5.   See Burke, et al., 256 J.A.M.A. 347 (1986).

6.   See e.g., Pindyck, Psycho-Social Impact of Anti-HTLV-III
Notification: The New York Experience, in N.I.H., Impact of
Routine HTLV-III Antibody Testing of Blood and Plasma Donors on
Public Health (1986).

7.   But see local 1812 American Federation of Government
Employees v. United States Depanrtment of State, 662 F.Supp. 50
(D.C.D.C.l987), holding that no preliminary injunction would
issue against inclusion in medical fitness program for foreign
service employees of a blood test for the HIV antibody. The court
found that the test there involved no additional intrusion (since
a full blood work-up was already required) and was rationally and
closely related to fitness for duty in a post with inadequate
ability to deal with AIDS.  Significantly, the Department of
State had determined that

...  HIV-infected  individuals showing  no symptoms of related
disease and without significant immune system dysfunction ... are
eligible for placement in the United States and ... posts in ...
foreign countries which do not present unusual health hazards and
where adequate medical care is believed to be available.
Individuals in more serious condition are limited to United
States service.  No employee will be separated ... by a finding
of HIV infection.

Id. at 52.

8.   Several requests for HIV-antibody tests have been made by
the District Attorneys offices in New York City, e.g. People v.
Santana, Indictment No. 4419/83 (Sup.Ct.Oueens Co.). In such
cases Dr. Stephen C. Joseph, the Commissioner of the Department
of Health of the City of New York has submitted an affidavit
setting forth this policy and set of regulations, and the re
quests have been withdrawn.

9.   In his affidavit in People v. Santana, supra, (indictment
No. 4419/83, Sup.Ct.. Queens County), Dr. Joseph explicitly made
the connection between involuntary testing and confidentiality.
He wrote

Testing in the absence of consent may also have harmful
consequences for the AIDS antibody testing program.  A precedent
established by coercive, non-anonymous testing could undermine
the City's efforts to assure individuals of its commitment to
confidentiality.

Affidavit of Dr. Stephen C. Joseph dated September 3, 1987.

10.  As Professor Siegel writes in the 1987 Supplementary
Practice Commentaries to Section 3121 of the CPLR:

...  [Tlhere is always more conceptual trouble in exacting a
physical examination of a defendant than of a plaintiff, mainly
because of physician-patient privilege.  Waiver of the privilege
is not hard to spell out with a plaintiff whose examination is
sought. The invocation of the court's jurisdiction is a strong
basis for a waiver.  But the defendant, who just wants to be left
alone, is no jurisdiction invoker. The waiver route is not
available, therefore, or harder to negotiate in any event, when
the one whose condition is involved is the defendant.

Siegel, Practice Commentaries, CPLR C3121:6 (1987) (McKinney
Supp.1988).

11.  That case involved a child protective proceeding  where  the
respondent/stepfather was charged with having sexually abused his
thirteen-year old step-daughter by engaging in repeated acts of
sexual intercourse over a period in excess of one year.  It was
further alleged that as a result of this sexual abuse the child
gave birth to an infant son. The Commissioner of Social Services
moved for a Human Leukocyte Antigen (HLA) blood grouping test of
the step-father, the child and her infant in an effort to prove
the alleged sexual abuse.  The court denied the request and wrote
as follows:

The HLA test, in the instant proceeding, is neither material nor
necessary to the prosecution of the action. It is unnecessary,
certainly, in that the subject child is a willing, cormpetent,
and available witness to testify at the trial.  It is immaterial,
in the sense that the establishment of probable paternity, is not
required to prove what is at issue in the proceeding  -- that is,
sexual abuse of the child and, further that an exclusion of
paternity could not free the respondent from meeting the issue of
alleged repeated sexual intercourse with the child.

Ivette D., supra, 118 Misc.2d 434, at 438, 460 N.Y.S.2d 718.

12.  The issue of potentially shortened life span is also
insufficient grounds for removing custody (cf. Collins v.
Collins, 115 A.D.2d 979, 497 N.Y.S. 2d 544 [4th Dept.l985]).

13.  As respondent has offered and agreed to undergo a physical
examination, arrangements for this will be made by the court in
consultation with attorneys for both sides.  In the unlikely
event that respondent actually does suffer from AIDS, this
information will be necessary for him in terms of planning his
own long-term care as well as considering long-term arrangements
for the children. The physical examination is both voluntary and
non-intrusive, and, to the extent that it would turn up evidence
of AIDS itself, rather than simply seropositivity, is far more
useful given the issues and facts in this case.