N.Y. Appellate Division Limits Scope of Disclsoure of HIV-Related Patient Information in Medical Misconduct Investigation

A unanimous five-judge panel of the New York Appellate Division, First Department, has ruled that a subpoena seeking the full medical records of nine patients of a doctor being investigated on misconduct allegations by the State Board for Professional Medical Conduct (BPMC) may be complied with, initially, by redacting information identifying the individual patients and other people mentioned in their files, and relating their individual sexual practices, in order to balance the privacy concerns of patients protected under New York HIV Confidentiality Law, Public Health Law Article 27-F, with the legitimate investigative needs of the Board. The ruling in Anonymous v. New York State Department of Health, 2009 WL 2590085, 2009 N.Y. Slip Op. 06294 (Aug. 25, 2009), is apparently a ruling of first impression, since the court cites no prior authorities and reaches its conclusion by reference solely to statutory language and legislative intent.

The court’s memorandum opinion is not attributed to any one of the members of the panel, which was comprised of Presiding Justice Mazzarelli and Justices Sweeny, Nardelli, Freedman and Richter.

According to the opinion, the Board received certain complaints concerning the doctor, who specializes in treating HIV+ patients, sufficient to merit investigation. As part of that investigation, the Board wrote to the doctor, requesting the medical and billing records of nine of his patients. The doctor’s lawyer responded with a letter to the Board raising confidentiality concerns and seeking guidance "to assure that he did not act in violation of the Public Health Law," which affords certain confidentiality protections to HIV+ patients. The doctor also contacted his patients, asking if they would authorize release of the records, but none of them consented to release of their records. The Board responded by issuing a subpoena, demanding production of all records of the nine patients. The doctor responded by filing this action, arguing that the Board’s request did not fall within any of the exceptions specified in the confidentiality law.

The New York County trial judge, Justice Nicholas Figueroa, ruled in favor of the Board, ordering release of the records. Justice Figueroa took the position, as summarized in the Appellate Division ruling, that "a physician may not invoke patient privacy rights to shield himself from a misconduct investigation," and that the Board had "demonstrated a foundation" for issuing the subpoena by submitting the complaints it had received to the court for in camera inspection.

While the Appellate Division agreed that the Board has a right to subpoena evidence relevant to its investigation of the complaints against the doctor, nonetheless it determined that in light of the confidentiality law, the doctor should not be required to release the complete patient records without taking some steps to protection the privacy of his patients. "In recognition of the need for confidentiality in this matter," wrote the Appellate Division panel, "any disclosure order must provide for redactions of material that is not necessary for the conduct of the investigation and must otherwise comply with section 2785(6). At this preliminary stage," the court continued, "the redacted material would include the names and identifying information of the patients whose files are sought (their files can be identified by code), as well as the names and identifying information of other individuals whose names might appear in the file. We caution, however, that the redaction of the names at this stage of the investigation should not be construed to mean the names are to be permanently redacted. There may be a point in the future when the needs, or the results, of the investigation warrant disclosure of certain identities to the OPMC by court order. Respondent also proffers no reason why personal information such as sexual history should be disclosed."

The court noted an "anomaly" in the confidentiality statute, an apparent and unexplained internal contradiction. While imposing various confidentiality standards on court orders to release HIV-related information, the statute also states "service of a subpoena shall not be subject to this subdivision." Does that mean that the confidentiality law is totally preempted by any other statute that confers authority to subpoena records or information? In light of the legislature’s concern to protect the confidentiality of HIV patients, the court was not willing to go to that extreme. Indeed, rather in the other direction, the court ordered that "each of the nine patients whose files are being sought shall be given the opportunity before the court to submit any objections to the release of certain information in his or her file, and to request appropriate redactions. In weighing such objections," the Appellate Division concluded, "the court must be mindful to balance the patients’ privacy concerns with the nature of the investigation itself, which involves serious allegations."

Due to the same confidentiality concerns, the court did not give any specifics of the charges against the doctor, and also granted the doctor’s motion to change the name of the case "to reflect anonymity," a decision that the state did not oppose.

The doctor is represented by attorneys Robert L. Schonfeld and Benjamin Giezhals of the Garden City firm of Moritt Hock Hamroff & Horowitz LLP, and the state is represented by attorney Richard Owen Jackson from the New York State Law Department. Lambda Legal participated in the appeal as amicus curiae, with a brief offered by Thomas W. Ude, Jr.