HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/URBAN-12.ASC

Text File | 1993-01-14 | 34KB | 610 lines

/* This case is reported in 226 Cal. App. 3dd 1128. Although the
editors of this program are not personally familiar with the
persons who were involved in this case, the background is well
known. This case is part of the worker's compensation milieu.
Inevitably, the doctors for the insurance company find that the
employee is ready to work tomorrow- the doctors for the employee
usually find that the worker has significant limitations to
working. In this case, after a neurological examination, the
injured worked told a nurse to be careful with the instruments
used in the examination, as he was HIV positive. Although this
was just told to the nurse, and clearly in a humanitarian
context, the doctor was informed, and chose to state that the
patient's HIV was one of the reasons he could not work-- not the
industrial injury. The court finds that in the context of an
adversary proceeding, that the disclosure, for the protection of
the health care workers, was privileged. The case is one in which
the result to the individual litigants, although important was
not as important as the message that were sent in the future. If
the employee would have his HIV status revealed, when not germane
to his examination, then the courts are discouraging future HIV
positive patients from revealing this information. Although there
is a basis for the court's opinion in California like, it is more
likely that the case turns on the policy implications. */

Gary Urbaniak

v.

Frederic H. Newton

OPINION

NEWSOM, J. -- On October 2, 1987, Gary Urbaniak (hereafter
Urbaniak), filed a first amended complaint in the Superior Court
of San Francisco against Frederic H. Newton, M.D., Frederick H.
Newton, M.D., a Medical Corporation (hereafter Dr. Newton), John
J. Parente, Paul D. Karasoff, and Allianz Insurance Co.
(hereafter collectively respondents) seeking damages for
dissemination of a medical report which disclosed that he had
tested positive for the HIV virus. The complaint was based on a
series of distinct legal theories including invasion of the right
to privacy guaranteed in article I, section 1, of the California
Constitution, violation of Health and Safety Code section 199.21,
intentional infliction of emotional distress and negligent
infliction of emotional distress. In their answer, respondents
raised the affirmative defense, among others, that the
dissemination of the report was privileged under Civil Code
section 47 as a publication in a judicial proceeding.

The trial court granted respondents' motion for summary judgment
and a judgment of dismissal was filed on January 13, 1989. During
the pendency of this appeal, Urbaniak died, and the Estate of
Gary Urbaniak was substituted as appellant.

In September 1984, while working as a machine operator for a San
Francisco business, Urbaniak suffered a head injury with
secondary neck and back strain. The injury marked the onset of
disabling head and back pain that prevented him from retaining
any form of gainful employment. He complained of headaches,
shoulder pain, midback pain, and numbness and tingling in the
fingers of his right hand. With the representation of counsel, he
brought a workers' compensation action in mid-1985 against his
former employer. The employer's insurance carrier, Allianz
Insurance Co., retained the law firm of John J. Parente for
defense of the action. In February 1986, Paul D. Karasoff, an
associate in Parente's firm, made arrangements through Urbaniak's
counsel for a medical examination by a neurologist, Dr. Newton,
employed for this purpose by Allianz Insurance Co. On his
counsel's advice, Urbaniak consented to the examination.

In the course of the neurological examination, Dr. Newton
fastened reusable metal electrodes with sharp points to
Urbaniak's body. The devices drew blood, as they occasionally do.
After the examination, Urbaniak disclosed that he had tested
positive for the HIV virus. He and Dr. Newton offered sharply
differing accounts of what was said; but since a motion for
summary judgment is concerned only with identification of triable
issues of fact, it is only Urbaniak's testimony that is relevant
to this appeal. (Code Civ. Proc.,  437c.)

According to Urbaniak, he was concerned that traces of blood on
the electrodes could lead to the infection of other persons. Just
before he left the office after the examination, he struck up a
conversation with Dr. Newton's nurse-"[j]ust a very brief one, to
tell her that I don't want this on my report . and that she
needed to be careful sterilizing it, or when she sterilized it,
the probes. . . . Because my HTLV-III test was positive." He
explained, "I felt morally obligated to tell a medical technician
the fact that my HTLV-III came out positive so she could
sterilize the materials she was using, meaning the metal probes."
Upon receiving this information, the nurse replied, "I will be
back in a minute," and left the room. She returned shortly but
did not mention the matter. Urbaniak insisted that he never spoke
directly to Dr. Newton about his HIV blood test.

In his report on the examination, Dr. Newton mentioned Urbaniak's
status as an AIDS victim as a possible source of muscle tension
that might account for his symptoms. Discounting the possibility
that the symptoms were caused by the work injury, the report
stated: "It seems more probable that, psychosocial,
characterological or other factors played a significant role in
the accentuation of symptomatology. Here it is worth noting that
the patient informed me that he has been diagnosed as HLV-III
positive. It would not be surprising that under the circumstances
of concerns about potentially serious health matters, he might
have some increase in symptomatology due to increased muscle
tension."

Dr. Newton sent one copy of the report to Paul D. Karasoff, who
in turn sent copies to Urbaniak's counsel and Allianz Insurance
Company, where it was handled by at least seven employees. John
J. Parente consulted the report, and his secretary sent a copy to
the Workers' Compensation Appeals Board. Upon determining that
Urbaniak was no longer entitled to compensation for chiropractic
treatments, Allianz later sent an additional copy of the report
to Urbaniak's chiropractor as justification for terminating
payments.

(1a)  Appellant urges that the record presents a triable issue of
fact with respect to the third cause of action alleging invasion
of privacy under article I, section 1, of the California
Constitution (hereafter article I, section 1). [footnote 1]

Denying any factual basis for an invasion of privacy, respondents
point out that, in the absence of special circumstances, there is
no confidential physician-patient relationship in a medical
examination of a plaintiff arranged for the benefit of the
defense. Urbaniak's counsel presumably advised him to cooperate
with the examination only because the defense could have secured
an order compelling his compliance under Code of Civil Procedure
section 2032. The examination served as a discovery tool, and
Urbaniak submitted to it in a strictly adversarial context.
(Mercury Casualty Co. v. Superior Court (1986) 179 Cal.App.3d
1027, 1033 [225 Cal.Rptr. 100].)  (2)  In a discovery proceeding,
the examining physician owes the claimant no duty of care (Keene
v. Wiggins (1977)69 Cal.App.3d 308, 315 [138 Cal.Rptr. 3]), and
the claimant has a right to have his own counsel present during
the examination. (Jorgensen v. Superior Court (1958) 163
Cal.App.2d 513, 516 [329 P.2d 550].) And, while an examining
physician might indeed incur liability by disclosing confidential
information irrelevant to the purpose of the examination, such
liability cannot be predicated on invasion of privacy in the
absence of special circumstances indicating that the information
was given in a confidential communication between patient and
physician.

The asserted right of privacy here must be premised on the
peculiar circumstances of Urbaniak's disclosure to Dr. Newton's
nurse. According to his testimony, he revealed his HIV positive
status at a time and for a purpose that had no connection with
the medical examination for his workers' compensation case. The
examination had been completed; he had been asked nothing and had
revealed nothing about his illness. He chose to disclose his HIV
positive status solely to alert the nurse to the need to take
precautions  in  handling  electrodes  contaminated  with  his
blood. (1b)  Thus, the issue is whether a right to privacy arises
in the disclosure of HIV positive status to a health care worker
for the purpose of alerting the worker to the need for taking
safety precautions in handling medical implements contaminated
with infected blood. We conclude that it does. [footnote 2]

As amended in 1972, article I, section 1, includes "privacy"
among the inalienable rights guaranteed all citizens.  (3)  "The
constitutional provision is self-executing; hence, it confers a
judicial right of action on all Californians." (Porten v.
University of San Francisco (1976) 64 Cal.App.3d 825, 829 [134
Cal.Rptr. 839]; White v. Davis (1975)13 Cal.3d 757, 775 [120
Cal.Rptr. 94, 533 P.2d 222].) "And it has been held the state
privacy right protects against invasions of privacy by private
citizens as well as the state." (Chico Feminist Women's Health
Center v. Scully (1989) 208 Cal.App.3d 230, 242 [256 Cal.Rptr.
194]; Park Redlands Covenant Control Committee v. Simon (1986)
181 Cal.App.3d 87, 98 [226 Cal.Rptr. 199].)

Although the state right of privacy has been held to be broader
than the federal right (Committee to Defend Reproductive Rights
v. Myers (1981) 29 Cal.3d 252, 281 [172 Cal.Rptr. 866, 625 P.2d
779, 20 A.L.R.4th 1118]), California courts construing article I,
section 1, have looked for guidance to federal precedents. (E.g.,
Fults v. Superior Court (1979) 88 Cal.App.3d 899, 903 [152
Cal.Rptr. 210].) We see some relevance in a line of United States
Supreme Court decisions that has recognized the sensitivity "in
terms of privacy interests" of a person's sexual practices. (See
Jones v. Superior Court (1981)119 Cal.App.3d 534, 549-550 [174
Cal.Rptr. 148], and cases collected therein.) Since in the
popular mind AIDS is commonly conceived as a social disease
suggestive of forms of sexual conduct, these precedents have at
least an indirect bearing on the right to privacy attaching to
dislosure of HIV positive status.

California courts construing article 1, section 1, have noted
other privacy interests having some parallel to the present case.
In Cutter v. Brown bridge (1986)183 Cal.App.3d 836 [228 Cal.Rptr.
545], we held that the provision protects the privacy of
disclosures to a psychotherapist, and a line of cases has held
that confidential medical records come within its purview.
(Binder v. Superior Court (1987) 196 Cal.App.3d 893, 900 [242
Cal.Rptr. 231]; Wood v. Superior Court (1985)166 Cal.App.3d 1138,
1147 [212 Cal.Rptr. 811]; Jones v. Superior Court, supra, 119
Cal.App.3d at p. 546; Board of Medical Quality Assurance v.
Gherardini (1979) 93 Cal.App.3d 669, 678-679 [156 Cal.Rptr. 55].)

Perhaps more pertinent are decisions construing the zone of
privacy protected by the Fourth Amendment from unreasonable
governmental intrusion.  (4)  State and federal decisions
stemming from Katz v. United States (1967) 389 U.S. 347 350-352
[19 L.Ed.2d 576, 581-582, 88 S.Ct. 507], have established that
"[t]he basic test as to whether there has been an
unconstitutional invasion of privacy is whether the person has
exhibited a subjective expectation of privacy which is
objectively reasonable and, if so, whether that expectation has
been violated by unreasonable governmental intrusion." (Jacobs v.
Superior Court (1973) 36 Cal.App.3d 489, 493-494 [111 Ca1.Rptr.
449]; People v. Bradley (1969) 1 Cal.3d 80, 8486 [81 Ca1.Rptr.
457, 460 P.2d 129].) One California decision has stated in dicta
that this reasonable expectations test is also the "basic test"
of violation of the right to privacy under article I, section 1.
(Armenta v. Superior Court (1976) 61 Cal.App.3d 584, 588 [132
Cal.Rptr. 586].) Whether or not it should be so regarded, the
reasonable expectations test of these Fourth Amendment precedents
may be read as at least establishing a criterion, relevant to
certain categories of cases, for recognizing a right to privacy
protected under the California Constitution. [footnote 3] (See
Valley Bank of Nevada v. Superior Court (1975)15 Cal.3d 652, 656
[125 Ca1.Rptr. 553, 542 P.2d 977] ["'reasonable expectation of
privacy'"].)

Shortly after passage of the 1972 amendment which added the right
of privacy to article I, section 1, the Supreme Court in White v.
Davis, supra, 13 Cal. 3d at p. 773, relied heavily on the
election brochure argument as an aid to construing the provision,
noting that it is the only legislative history available. Among
other things, the brochure stated: "This simple amendment will
extend various court decisions on privacy to insure protection of
our basic rights." (Ballot Pamp., Proposed Amends. to Cal. Const.
with arguments to voters, Gen. Elect. (Nov. 7, 1972) rebutted to
argument against Prop. 11, p. 28.) Several cases have relied on
this statement in construing the provision. (Porten v. University
of San Francisco, supra, 64 Cal.App.3d at p. 829; Jones v.
Superior Court. supra, 119 Cal.App.3d 534, 546; Central Valley
Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d
145,160 [262 Cal.Rptr. 496].)  (5)  The statement indicates that
the interests traditionally embraced by the tort of invasion of
privacy now come within the protection of article 1, section 1,
although the limits of the tort cause of action do not
necessarily represent limits to an action taken for violation of
the constitutional right.

Among the several distinct forms of tortious invasion of privacy,
the form closest to the case at bar consists of "public
disclosure of true, embarrassing private facts about the
plaintiff." (Porten v. University of San Francisco, supra, 64
Cal.App.3d at p. 828.)  (6)  As described in Diaz v. Oakland
Tribune, Inc. (1983) 139 Cal.App.3d 118, 126 [188 Cal.Rptr. 7621,
"the public disclosure tort contains the following elements: (1)
public disclosure (2) of a private fact (3) which would be
offensive and objectionable to the reasonable person and (4)
which is not of legitimate public concern." These criteria are
now relevant to a cause of action under article I, section 1.

While tortious invasion of privacy requires a "public
disclosure," a cause of action under article I, section 1, may be
based on a more extensive, if still somewhat amorphous, concept
of "improper use of information properly obtained." In White v.
Davis, supra, 13 Cal.3d at page 775, the Supreme Court observed
that the election brochure identified "the principal 'mischiefs'
at which the amendment is directed." The third of these was "the
improper use of information properly obtained for a specific
purpose, for example, the use of it for another purpose or the
disclosure of it to some third party . . .     (7) (Set hi. 4.)
Porten v. University of San Francisco, supra, 64 Cal.App.3d 825
holds that this purpose of the constitutional amendment creates a
cause of action broader than that allowed under tort principles.
[footnote 4]

In the Porten case, the complaint alleged that the defendant had
without permission disclosed a portion of the plaintiff's
academic record to a state scholarship commission. Reviewing a
judgment of dismissal on demurrer, the court agreed that the
complaint failed to state a tort cause of action for "public
disclosure of private facts" since the disclosure to the state
commission 'was not a communication to the public." (Porten v.
University of San Francisco, supra, 64 Cal.App.3d at p. 828.) It
held, however, that the complaint stated a "prima facie violation
of the state constitutional right of privacy" based on "the
improper use of information properly obtained for a specific
purpose." (Id. at p. 832.)

California decisions have applied the concept of "improper use of
information properly obtained" to overly broad dissemination of
arrest data (Central Valley Ch. 7th Step Foundation, Inc. v.
Younger, supra, 214 Cal.App.3d at p. 161; Central Valley Chap.
7th Step Foundation v. Younger (1979) 95 Cal.App.3d 212, 236 [157
Cal.Rptr. 117]), to the posting of a personnel action memorandum
in a public place (Payton v. City of Santa Clara (1982)132
Cal.App.3d 152, 154 [183 Cal.Rptr. 171), and, most pertinent to
the present case, to a psychotherapist's disclosure of
confidential communications of a  patient.  (Cutter v.  Brown
bridge,  supra,  183 Cal.App.3d at pp. 841-844.) Our holding in
Cutter drew support from in re Lifschutz (1970) 2 Cal.3d 415 [85
Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1], the decision that
first recognized a constitutional right of privacy under
California law.

In the Lifschutz case, a psychiatrist sought a writ of habeas
corpus after he was imprisoned for contempt of court for refusing
in discovery proceedings to divulge communications of a former
patient. The propriety of his refusal turned on the patient-
litigant exception to the psychotherapist-patient privilege. The
Supreme Court interpreted the exception in light "of the
justifiable expectations of confidentiality that most individuals
seeking psychotherapeutic treatment harbor .... ' "The
psychiatric patient confides more utterly than anyone else in the
world . . . . It would be too much to expect them to do so if
they knew that all they say -- and all that the psychiatrist
learns from what they say-may be revealed to the whole world from
a witness stand."'"  (In re Lifschutz, supra, 2 Cal.3d at p.
431.) The court proceeded to hold that the patient's interest in
preserving the confidentiality of these private revelations was
not only protected by statute but "draws sustenance from our
constitutional heritage. In Griswold v. Connecticut (1965) 381
U.S. 479, 484 [14 L.Ed.2d 510, 517, 85 S.Ct. 1678], the United
States Supreme Court declared that 'Various guarantees [of the
Bill of Rights] create zones of privacy,' and we believe that the
confidentiality of the psychotherapeutic session falls within one
such zone." (2 Cal.3d at pp. 431-432.)

(1c)  The right to privacy recognized in the Cutter and Lifschutz
decisions is congruent with the reasonable expectations test
found in Fourth Amendment cases. The significance of the
patient's reasonable expectations in this context lies in the
public interest in encouraging confidential communications within
a proper professional framework. By enforcing the patient's
reasonable expectations of privacy, the courts will both
encourage free communication needed for an effective professional
relationship and protect the relationship from abuse.

Board of Medical Quality Assurance v. Gherardini, supra, 93
Cal.App.3d 669 relied on similar considerations in holding that
article I, section 1, protects the confidentiality of medical
records. The court observed that under California statutes "[t]he
patient-physician privilege (Evid. Code, 990-1007) creates a zone
of privacy whose purposes are (1) 'to preclude humiliation of the
patient that might follow disclosure of his ailments' [citations]
and (2) to encourage the patient's full disclosure to the
physician of all information necessary for effective diagnosis
and treatment of the patient. [Citations.]" (Id. at pp. 678-679.)
Holding that this zone of privacy is now entitled to
constitutional protection under article I, section 1, the court
reasoned, "The patient should be able to rest assured with the
knowledge that 'the law recognizes the communication as
confidential and guards against the possibility of his feelings
being shocked or his reputation tarnished by their subsequent
disclosure.' . . . The reasonable expectation that such personal
matters will remain with the physician are no less in a patient-
physician relationship than between the patient and
psychotherapist." (Id. at p. 679, italics added.)

We will now apply this lengthy exposition of California law of
privacy to the case at bar. There can be no doubt that disclosure
of HIV positive status may under appropriate circumstances be
entitled to protection under article I, section 1. The condition
is ordinarily associated either with sexual preference or
intravenous drug uses. It ought not to be, but quite commonly is,
viewed with mistrust or opprobrium. Under the test of tortious
invasion of privacy, it is clearly a "private fact" of which the
disclosure may 'be offensive and objectionable to a reasonable
[person] of ordinary sensibilities." (Forsher v. Bugliosi (1980)
26 Cal.3d 792, 809 [163 Cal.Rptr. 628, 608 P.2d 716], italics
omitted.) In the field of constitutional law, federal decisions
concerning the right of privacy accorded to sexual practices, and
California precedents dealing with the privacy attaching to
medical records and the psychotherapist-patient relationship,
provide judicial recognition of privacy interests in closely
related areas of life.

The circumstances under which disclosure of HIV positive status
may give rise to a cause of action pursuant to article I, section
1, are governed by the concept of "improper use of information
properly obtained." (White v. Davis, supra, 13 Cal. 3d 757, 775.)
In the field of health care, disclosure of information about a
patient constitutes "improper use" when it will subvert a public
interest favoring communication of confidential information by
violating the patient's reasonable expectations of privacy. We
find such a public interest here in a patient's disclosure of HIV
positive status for the purpose of alerting a health care worker
to the need for safety precautions. Although Urbaniak's concern
may perhaps have been groundless, it came within a wider sphere
of communications between patients and health practitioners, and
among health practitioners themselves, where disclosure of a
patient's HIV positive status has undoubted importance for safety
precautions in treatment. (See Health & Saf. Code,  199.215,
199.24, & 199.33.) The evidence here would support the inference
that Urbaniak reasonably anticipated privacy. [footnote 5] By
enforcing such reasonable expectations of privacy, the courts
will simultaneously foster needed disclosures of HIV positive
status and protect against their abuse.

/* Urbaniak only revealed that he was HIV positive in an effort
to protect the health care workers. One wonders if Urbaniak did
not reveal this if the health care workers would have sued
Urbaniak. The court will not penalize Urbaniak for the act which
serves the public good. */

As an affirmative defense, the respondents counter that the
repetition of Urbaniak's statement was privileged under Civil
Code section 47, subdivision 2, as a statement published in a
judicial proceeding.  (8)  The privilege may indeed "defeat
claims of invasion of privacy." (Ribas v. Clark (1985) 38 Cal.3d
355, 364 [212 Ca1.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417].)
(1d)  We hold that it does provide a valid defense for the defend
ants John J. Parente, Paul D. Karasoff, and Allianz Insurance
Company. They received the disclosure in a context--the report of
a physician retained by the defense in discovery proceedings--
that did not indicate a confidential communication, and the
evidence does not reveal that they had actual notice of facts
suggesting an invasion of privacy. [footnote 6] It is true that,
following normal claim procedures, Allianz -- over Urbaniak's
objection -- distributed a copy of the report to his chiropractor
but the record still does not establish that at this time Allianz
had received notice of the facts on which we have predicated
Urbaniak's right to privacy.

(9)  But Civil Code section 47, subdivision 2, does not provide
"blanket immunity for disclosures . . . of constitutionally
protected privileged communications." (Cutter v. Brown bridge,
supra, 183 Cal.App.3d at p. 847.) Where the constitutional right
of privacy is at stake, the statute calls for "careful balancing"
of the relevant statutory and constitutional interests.  (Ibid.)
(1e)  The allegations of the complaint support the inference that
Dr. Newton knew of and ratified the use of the information
confided to his nurse. The offending information had limited
relevance to the medical examination. It would have been possible
to mention the patient's concern over his health as a source of
stress without specifically mentioning his HIV positive status.
Under these circumstances, as in Cutter v. Brownbridge. Supra, at
p. 848, "[w]e have determined that the constitutional right to
privacy outweighs the policies underlying the judicial
proceedings immunity when private material is voluntarily
published, without resort to a prior judicial determination."

 (10)  Dr. Newton also defends on the ground that Urbaniak's
cause of action abated on his death while this appeal was
pending. Probate Code section 573, subdivision (c) provides:
"Where a person having a cause of action dies before judgment,
the damages recoverable by his or her personal representative are
limited to the loss or damage the decedent sustained or incurred
prior to death, including any penalties or punitive or exemplary
damages that the decedent would have been entitled to recover had
the decedent lived but not including any damages for pain,
suffering, or disfigurement." Although the statute refers to
death "before judgment," not to death while an appeal is pending,
it must be taken into account in determining whether a reversal
of judgment would have any practical effect. (Consol. etc. Corp.
v. United A. etc. Workers (1946) 27 Cal.2d 859, 863 [167 P.2d
725].)

Under Probate Code Section 573, the Estate of Urbaniak is
unquestionably barred from recovering damages for emotional
distress (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910,
920, fn. 3 [148 Cal.Rptr. 389, 582 P.2d 980]), but it can still
recover special damages, if any, and may seek punitive damages.
For recovery of punitive damages, it is only required that "a
tortious act be proven." (Carr v. Progressive Casualty Ins Co.
(1984)152 Cal.App.3d 881, 892 [199 Cal.Rptr. 835]; Weiss v.
Blumencranc (1976) 61 Cal.App.3d 536, 543 [131 Cal.Rptr. 298].)
Since appellant still possesses a right to seek damages, Probate
Code section 573 does not operate to abate the cause of action.

(11)  Appellant strenuously argues that the complaint also states
a cause of action under Health and Safety Code section 199.21.
Subdivision (a) of the statute provides: "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 iden
tifies 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 in an
amount not to exceed one thousand dollars ($1,000) plus court
costs ...."  Subdivision (b) provides higher penalties for
"willful" disclosures, and subdivision (c) makes negligent or
willful disclosures a misdemeanor under certain defined
circumstances.

In a very thorough exposition of legislative history, appellant
maintains that the statute should be broadly construed to effect
its legislative purpose; so construed, the statute would extend
to "disclosures of information received from the individual whose
test results are disclosed." Taking this logic further, appellant
regards the disclosure to Dr. Newton's nurse as conveying to
respondents "the results of a blood test" that they could not
reveal to a third party without violating the statute.

Without questioning the legislative history calling for a broad
interpretation of the statute, we observe that appellant's
interpretation would give the statute an extraordinarily long
reach, affecting the transmittal of information about AIDS
victims in a wide variety of social contexts. This sweeping scope
is not supported by the statutory language. Liability is limited
to any person who "discloses results of a blood test." Health and
Safety Code section 199.21, subdivision (k) defines the word
disclosed as follows: "'Disclosed,' as used in this section,
means to disclose, release, transfer, disseminate, or otherwise
communicate all or any part of any record orally, in writing, or
by electronic means to any person or entity." (Italics added.)
The word "record" can only refer to the record of a blood test.
The statutory language, in short, appears to apply only to
disclosures by persons having access to the record of the results
of a blood test.

Our interpretation is favored by the legislative history. For
example, the emergency provision of the statute explains that it
was intended "to protect the confidentiality of persons
undergoing a blood test for" AIDS and thereby "to encourage
individuals who are stricken with the disease to undergo
treatment  . . . "  (Stats. 1985, ch. 22,  4, p. 83.) This
legislative purpose will be served only to the extent that the
statute is applied to persons and institutions that conduct tests
for AIDS, assume responsibility for custody or distribution of
test results, or use test results in connection with treatment of
affected persons.

(12)  Lastly, we hold that the record fails to present a triable
issue of fact on the theories of intentional and negligent
infliction of emotional distress. An element of the tort of
intentional infliction of emotional distress is "outrageous"
conduct that is "beyond all bounds of decency." (5 Witkin,
Summary of Cal. Law (9th ed. 1988) Torts,  404, p. 484.) Dr.
Newton's conduct cannot be characterized in such harsh terms.
Mention of the HIV positive test results is justified, he claims,
by his desire to indicate the high likelihood of attendant
emotional stress. And while appellant may reasonably contend that
the disclosure was in fact unnecessary, the record simply
provides no basis for characterizing Dr. Newton's conduct as
outrageous within the meaning of tort precedents.

(13)  "Damages for severe emotional distress ... are recoverable
in a negligence action when they result from the breach of a duty
owed the plaintiff ... ."(Marlene F. v. Affiliated Psychiatric
Medical Clinic, Inc. (1989) 48 Cal. 3d 583, 590 (257 Cal.Rptr.
98, 770 P.2d 278].)  (14)  Appellant here attempts to premise a
duty alternatively on the foreseeability of harm and the
statutory policy of Health and Safety Code section 199.21. The
record does not support an inference that respondents' actions
involved a foreseeable risk of "severe emotional distress," as
that term has been defined. (See Thing v. La Chusa (1989) 48 Cal.
3d 644, 666-668 [257 Cal.Rptr. 865, 771 P.2d 814].) They did not
know of any unusual vulnerability of appellant and limited the
distribution of the report to usual channels in a workers'
compensation proceeding. Appellant's alternative theory that a
duty may be based on section 199.21 is based on an expansive
interpretation of this statute which we earlier rejected.

The judgment dismissing the third cause of action against Dr.
Newton is reversed. In all other respects, the judgment is
affirmed. Costs to appellant.

Dossee, J., concurred. Racanelli, P. J., concurred in the result.





FOOTNOTES

1.   The first amended complaint also alleged causes of action
for tortious invasion of privacy and violation of the right of
privacy under the United States Constitution. but appellant has
abandoned these theories on appeal.

2.  The parties have devoted much of their briefs to the issue of
waiver. but our analysis is based entirely on evidence that
Urbaniak disclosed his HIV positive test results to Dr. Newton's
nurse, after requesting confidentiality. for the purpose of
alerting her to the need to take safety precautions in handling
the electrodes. In this narrow factual context, we see no rea
sonable basis for inferring waiver.

3. See criticisms of the reasonable expectations test in
Gerstein, California's Constitutional Right to Privacy: The
Development of the Protection of Private Life (1982) 9 Hastings
Const.L.Q. 385; Comment, A Taxonomy of Privacy: Repose,
Sanctuary, and Intimate Decision (1976) 64 Cal.L.Rev. 1447.

4.  While article 1, section 1, does not require "public
disclosure," some kind of overt disclosure is inherent in the
concept of invasion of privacy. 'be question remains whether a
disclosure is sufficiently overt to violate a constitutionally
protected interest in privacy. Whatever may he the general
standard for resolving this issue. we note that decisions under
article I, section I, indicate that a disclosure for purpose of
litigation may give rise to a cause of action tinder article I,
section 1. (Valley Bank of Nevada v. Superior Court, supra, 15
Cal.3d 652; Cutter v. Brownbridge, supra, 183 Cal.App.3d 836.)

5. As a standard for recognizing the right to privacy. the test
of reasonable expectations can sometimes be circular:
expectations will be reasonable where privacy is recognized. But
the patient's expectations under the actual circumstances of
disclosure are still relevant to evaluating the confidential
nature of the disclosure.

6. We do not reach the issue whether Allianz is also protected by
the exclusive remedy rule of Labor Code section 3602.