HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/V-NEWYO.ASC

Text File | 1993-01-14 | 17KB | 319 lines

/* This case is reported in 566 N.Y.S.2d 987. In this case a
private law of action is recognized for violation of the New York
state HIV confidentiality law. */

In the Matter of V., Claimant,

v.

The STATE of New York, Defendant.

The Court of Claims of New York.

Jan. 23, 1991.



DONALD J. CORBETT, Jr., Presiding Judge.

This is a motion for permission to file a late claim pursuant to
Court of Claims Act  10(6). This motion raises provocative issues
which may ultimately reverberate within the State's correctional
facilities. For this reason, and because Claimant should not be
deprived of the opportunity to pursue a claim which, at this
early pleading stage, meets the parameters of a valid and viable
cause of action, he will be allowed to proceed.

The gist of the proposed claim involves purported violations of
Article 27-F of the Public Health Law (entitled "HIV and AIDS
Related Information", Sections 2780 through 2787), alleging,
inter alia, unauthorized access to medical records and disclosure
of Claimant's affliction with the AIDS virus.  Inasmuch as the
underlying causes of action deal with confidentiality and AIDS, I
granted Claimant's separate motion (M41642) to proceed with
anonymity.

The instant motion raises two issues of particular interest.  The
parties focused in great depth upon the legislative intent in
passing Article 27-F, specifically whether a private cause of
action by aggrieved individuals was contemplated and thus whether
the proposed claim is meritorious.  The second issue revolves
around the alleged improper access to records and disclosure of
Claimant's affliction with AIDS by correction officers at a time
or times prior to the effective date of Article 27-F on February
1, 1989 (L.1988, ch. 584, Section 6). This complicating factor
clouds the issue, inasmuch as it appears that Claimant grieved
alleged breaches of his purported right to confidentiality as an
AIDS victim in September 1988.  Claimant, at all relevant times
herein, was an inmate incarcerated at the Attica Correctional
Facility and thus initially suffered some damages complained of
at a time prior to the statutory creation of his purported
private causes of action.

[1]  I find this circumstance to be troublesome, and I project
difficulties in proof since it appears that Claimant's affliction
was already known within the confines of Attica prior to the
effective date of the statute. Although there may be great
difficulty in proving or assessing damages on any of the proposed
causes of action, I find the appearance of meritoriousness in the
claim, as the Claimant here need do no more than present a claim
which is not patently groundless, frivolous or legally defective,
and, subject to proof thereof, appears valid (Matter of Santana
v. New York  State  Thruway  Authority,  92 Misc.2d 1,11, 399
N.Y.S.2d 395).  This he has done at a minimum by alleging
violations of Article 27-F of the Public Health Law after its
effective date which, if true and proven, would comport with
Governor Cuomo's statements when he noted that the law requires
that HIV-related information be kept confidential and permits
disclosure only in narrowly defined need-to-know circumstances
(State Executive Dept. Memoranda, September 1, 1988, ch. 584,
McKinney's 1988 Session Laws of New York, pp. 2284-85).  With
respect to the question of the existence of private causes of
action pursuant to Article 27-F, Claimant included the letter
(Exhibit A to his Supplementary Affidavit) attached to the bill
jacket from a sponsor of the bill, Assemblyman Gottfried,
Chairman of the Assembly Committee on Health, to the Governor's
Counsel, commenting that:

[i]t is important to note the legislative intent as to remedies
for violations of this legislation.  Any person aggrieved by a
violation of this legislation would be able to take advantage of
the full range of civil remedies available under existing
statutory and case law.  The enumeration of specific penalties in
the bill is not intended to diminish or preclude any cause of
action or remedy.

It was similarly noted by Senator Obrenstein, Minority Leader in
the State Senate, who sponsored the bill in the Senate, in a
letter urging the Governor's signature (Exhibit B to the
Supplementary Affidavit), that the provisions of the bill clearly
indicate an intent to guarantee the private right of action for
any who feel their rights have been violated under the act.

[2]  These articulations of legislative intent, coupled with the
Governor's Memorandum, persuade me that private rights of action
were contemplated and that permission to file this claim should
be granted. Applying the tests set forth in Sheehy v. Big Flats
Community Day, Inc.,  73 N.Y.2d 629, 543 N.Y.S.2d 18, 541 N.E.2d
18, and Burns, Jackson, Miller, Summit and Spitzer v. Lindner, 59
N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459,1 find this Claimant
qualifies as one of the class for whose benefit Article 27-F was
enacted, that recognition of his right to pursue this action
would promote the legislative purpose of confidentiality,
particularly as articulated by the legislative sponsors and the
Governor, and, in further harmony therewith, this right is
consistent with the statutory scheme given the reference to
Section 12 of the Public Health Law in Section 2783(1)(b).
Senator Ohrenstein cited these provisions in support of the
bill's intention to guarantee a private right of action, and
Assemblyman Gottfried suggested that any person aggrieved could
take full advantage of the full range of civil remedies
available.  The judicial test of a private right of action is
thus satisfied.

[3]  The Defendant also asserts that it is not a person subject
to the statute inasmuch as Public Health Law Section 2780(11)
only includes ....  state or local government agenc[ies]."  The
legislative intent in enacting 1988 N.Y. Assembly Bill A 9765-
A/Senate Bill 5 9265-a, which resulted in Article 27-F of the
Public Health Law, is discussed in Exhibit A (Gottfried letter of
September 1, 1988) as follows:

I also would like to clarify the intent of this legislation with
regard to the disclosure of HIV-related information within
government agencies, particularly correctional facilities.  While
disclosure of HIV-related information in correctional facilities
is permitted in this legislation, it is to be on a selective
basis, pursuant to regulations.  Blanket disclosure of such
information to correctional facility personnel (guards,
attendants, maintenance personnel, etc.) is not contemplated.
Beyond disclosure of HIV-related information to medical
personnel, it is the intent of this legislation to only allow
disclosures of such information within correctional facilities to
those employees who normally have access to such medical
information in the course of carrying out their work-related
responsibilities. Broader provisions were considered and
rejected.

The State of New York is therefore subject to the provisions of
Article 27-F for purposes of this Court's jurisdiction.

[4]  However, I will not allow the purported common-law cause of
action for the unauthorized  disclosure of confidential medical
information.  The validity of that cause of action is more
questionable absent an articulated doctor-patient confidential
relationship.  Claimant has failed to persuade that such a cause
of action exists, be it for breach of privacy or of confidentiali
ty, absent allegations of a physician's culpable conduct in the
purported improper access to medical records or disclosure
thereof (see, Doe v. Roe, 93 Misc.2d 201, 400 N.Y.S.2d 668;
MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801).  Claim
ant's reliance on Rea v. Pardo, 133 Misc.2d 516, 507 N.Y.S.2d 361
for the proposition that parties other than physicians may be
liable is misplaced, as the Fourth Department reversed Rea v.
Pardo, 132 A.D.2d 442, 522 N.Y.S.2d 393, and found the disclosure
to the physician's malpractice insurance carrier to be justified.
The private cause of action here under Article 27-F provides an
adequate remedy  for the Claimant without extrapolating a common-
law cause of action for the breach of a fiduciary duty of
confidentiality where such duty appears to exist only between a
doctor and a patient, and where no such allegation has been made.

In order to provide a more complete record in the event of
appellate review, I will address the late claim application in
its entirety.  The moving papers allege that the claim herein
accrued in September, 1988, when Claimant submitted an inmate
grievance regarding improper access to his medical file by
correction officer Olsen. This grievance was denied on October
20, 1988. Thereafter, on May 23, 1989, Claimant complained in
writing to the Superintendent at Attica about AIDS-related
remarks and harassment by correction staff at Attica.  On June
16, 1989, a second inmate grievance complaint was filed regarding
harassment and improper disclosure of HIV and AIDS information by
correction staff.  This grievance was denied on July 14, 1989.
On July 20, 1989, in response to a June 30, 1989, letter from
Claimant, Commissioner of Correctional Services Coughlin advised
Claimant to utilize the inmate grievance procedure regarding the
treatment complained of.

I have carefully reviewed the proposed claim.  It contains four
claims, each alleging violations of Claimant's rights under
Article 27-F of the Public Health Law:

First Claim-Alleges that Correction Officers Leford, Kowalewski,
Franklyn and another individual improperly obtained access to and
read information from Claimant's medical files, violating Article
27-F;

Second Claim-Alleges that Correction Officers Kowalewski,
Franklyn, and another individual, violated Article 27-F which
specifically prohibits unnecessary disclosure of HIV-related
information and the common law of New York which prohibits
unauthorized disclosure of confidential medical information;

Third Claim-By permitting unauthorized access to Claimant's
medical records, Commissioner  Coughlin,  Superintendent Kelly,
Deputy Superintendent Walker and Sergeant Chandler violated
Claimant's Article 27-F rights; and

Fourth Claim-By permitting unauthorized disclosure of Claimant's
medical condition and failing to protect Claimant from
harassment, Coughlin, Kelly, Walker and Chandler violated Article
27-F of the Public Health Law.

Thus, it can be seen that the four claims each allege a cause of
action stemming solely from alleged violations of Article 27-F of
the Public Health Law.  Only in the latter part of the second
proposed claim is a common-law tort alleged, and as noted above,
that cause of action cannot stand. I will thus address the
alleged statutory causes of action. Claimant seeks damages
pursuant to Public Health Law Section 2783(1)(b) of $25,000 for
each of three improper disclosures, despite the statutory
limitation authorizing a civil penalty of no more than $5,000 per
occurrence, recoverable in the same manner as provided in Section
12 of the Public Health Law.  In light of my decision here
permitting the filing of the proposed claim, I leave to later
motion practice the resolution of the apparent discrepancy in the
amount sought and the limits suggested by the statute. Claimant
has suggested in his brief that he will, if requested, submit an
amended claim to overcome the monetary limits enunciated in
Section 2783(1)(b). Indeed, he may wish to do so, upon motion
pursuant to CPLR 3025, or by necessity in response to the
Defendant's motion[s].

[5]  Claimant also seeks $50,000 for severe emotional distress
and other emotional consequences and $100,000 for the
deterioration in and injury to his physical condition, due to the
alleged acts committed by the Defendant.  Contrary to Defendant's
assertions, I do not read the proposed claim as seeking damages
for the intentional infliction of emotional harm, but rather
alleging the same as elements of damages sustained in the
purported statutory causes of action.  To the extent that the
proposed claim may be read as asserting a separate cause of
action for the intentional infliction of emotional harm or
distress, it is not permitted as violative of public policy
(DeLesline v.  State of New  York,  91 A.D.2d 785, 458 N.Y.S.2d
79;  Wheeler v. State of New York, 104 A.D.2d 496, 479 N.Y.S.2d
244).

[6]  As an excuse for failing to timely file, Claimant offers
numerous factors, including his ignorance of Article 27-F, an
excuse in any event which is not relevant for the purported
common-law cause of action.  Much of the discussion of excuse
relates to Claimant's counsel's research into the legal remedies,
proper jurisdiction and forum between federal and  state courts,
and a desire not to possibly upset a then impending transfer from
Attica to another facility closer to Claimant's family. Most of
these excuses cover periods after the expiration of 90 days from
accrual of the claim herein, and thus pertain to prejudice in the
late filing, but not to the excuse for failing to file within 90
days.  Thus, Claimant's excuse, reduced to its essence, is
ignorance of the law, and that is not acceptable. Claimant
proffers other excuses, including his consideration whether the
claims sought hereunder should have been added to a pre-existing
42 USC Section 1983 action filed by the Claimant pro se, but the
essence of these are nothing more than ignorance of the law. Of
course, it is not necessary that Claimant satisfy all six
statutory considerations in order to have his motion granted (Bay
Terrace Coop. Section IV v. New York State Employees' Retirement
Sys., 55 N.Y.2d 979, 449 N.Y. S.2d 185, 434 N.E.2d 254).

[7]  Defendant alleges that there is substantial prejudice to it
in the preparation of its defense because there are alleged to
have been disclosures prior to the effective date of the statute
and thus the defense will be extremely muddled by the pre-exist
ing knowledge of staff and inmates. While the Defendant raises a
valid concern, the alleged prejudice exists because certain
complained-of events took place before enactment of the statute,
and some after. However, the prejudice that accrues does not
appear attributable to the tardiness of filing, but occurs as a
result of events preceding the statutory enactment, and is not
exacerbated because of the late filing. In any event, whatever
prejudice may exist is not substantial, and this factor therefore
accrues to Claimant's benefit.

With respect to notice of the essential facts constituting the
claim, Claimant has provided copies of a grievance dated October
3, 1988, and the response thereto dated October 20, 1988, in his
supplementary affidavit.  This of course precedes the effective
date of Article 27-F, although it is additionally asserted,
albeit on information and belief, that the Defendant was put on
notice thereafter by the Claimant, orally and in writing, of the
underlying facts. Claimant notes a second grievance filed on June
16,1989, the response thereto dated July 14, 1989, a June 30,
1989 letter to Commissioner Coughlin, and a July 20, 1989,
response thereto. Given the purported and suggested notice, this
factor favors Claimant.  Similarly, therefore, the Defendant was
given the opportunity to investigate.

The Defendant suggests an available alternative remedy in the 42
USC Section 1983 action filed pro se by Claimant. Since no copy
of those pleadings is before me, nor is any specific reference on
first-hand knowledge made, this cannot form the basis of a viable
alternative remedy.  The Defendant raised an interesting question
whether the true remedy lay in an action against the correction
officers who it is alleged improperly obtained access to
Claimant's medical records and then improperly disclosed them.
The Defendant suggests that the State should not be held liable
for the allegedly tortious conduct of State employees, acting
beyond the scope of their employment, thereby bringing this claim
outside the parameters of Correction Law Section 24.  If indeed
the correction officers acted outside the scope of their
employment in the discharge of their duties in the instant claim,
then the Defendant will have to seek dismissal of this claim on
that basis and be put to the proof thereof. Although the
Defendant alleges ignorance of the allegations in the pro se
Section 1983 action initiated by Claimant, it appears that Public
Officers Law Section 17 would initially apply to that action,
making the Defendant privy to the allegations therein.
Regardless, no available alternative remedy is apparent to me,
and this factor benefits Claimant.

Accordingly, upon review of the proposed claim, and after
weighing the relevant statutory factors, I deem it a provident
exercise of my discretion to allow the claim, albeit without the
alleged common-law tort, to be filed and served within 30 days of
service of a file-stamped order herein, in accordance with Court
of Claims Act Section 11, and the rules of the court.