New York Court Orders Limited HIV Information Disclosure in Personal Injury Suit

A Brooklyn trial judge, Justice Herbert Kramer, ruled in Doe v. Sutlinger Realty Corp., 25324/09, NYLJ 1202518700343 (Kings Co., Sept. 22, 2011), reported in the New York Law Journal on October 21, that an HIV+ plaintiff in a “slip and fall” personal injury suit against a property owner had put his health status “in issue” by suing for damages for the injuries he sustained, and thus could not refuse to answer questions about his HIV-related health issues during a deposition or to authorize disclosure to defense counsel of his HIV-related medical records. 

The John Doe plaintiff had refused to answer HIV-related questions that defendant’s counsel posed at the deposition, after surmising from those medical records already received that plaintiff was HIV+.  Plaintiff’s counsel arguing that HIV-related information was not relevant to the injuries for which he was claiming damages, but Judge Kramer found that the factors considered by fact-finders on the issue of damages include those that might be affected by HIV.  Explained the judge, “Plaintiff’s argument that because he has not made any claims that the accident exacerbated his HIV fails to consider a myriad of other factors which HIV may effect [sic]. The plaintiff has put his past, present and future medical condition at issue when bringing this action.  Ignoring the information that plaintiff is HIV positive and the possible effect that has had on his overall past and future health is not only inappropriate but would violate the defendant’s right to a fair trial, especially when a jury may be charged with judging plaintiff’s medical condition and if appropriate placing an award based on life expectancy and loss of enjoyment of life.”

Justice Kramer also noted that plaintiff’s counsel had submitted in support of the motion to compel discovery “an affirmation from an orthopedist which states that an individual with HIV may be at a greater risk from surgery with this condition and possible greater susceptibility to fracture.  The expert affirmation is probative and admissible as to the necessity for the disclosure.” 

However, in line with New York’s statute governing HIV-confidentiality, Justice Kramer took various steps to protect plaintiff from any more disclosure than was necessary for the conduct of the litigation, including turning this into a “John Doe” case, strictly limiting who could have access to the HIV-related medical information, moving some aspects of the case out of the courtroom and into the judge’s chambers, sealing the record, and so forth.  “It is the intention of this Court,” he wrote, “to carefully balance the rights of the parties to this litigation.  On the one side the plaintiff has asserted the position that his HIV status and attendant medical treatment are personal in nature and objects to its disclosure.  The legislature has determined that plaintiff’s concerns are valid and has created a framework for disclosure.  It is further the intention of this Court not to allow the plaintiff’s HIV status to become a diversion during the remainder of this litigation.”

On another point, the judge rejected a defense motion that the case should be dismissed because the plaintiff could not produce a diary that he had kept during his medical treatment subsequent to the fall that led to this law suit.  The defendant invoked the doctrine of spoliation, under which a case will be dismissed if a plaintiff “negligently loses or intentionally destroys evidence” and as a result deprives the other party of the “ability to prove its claim.”  In this case, Justice Kramer accepted the argument that the plaintiff’s medical records – those already disclosed and those that would be disclosed in response to this order – would contain the necessary information.  Doe had submitted an affirmation that “there were many people who came into his apartment on a daily basis to assist and care for him, some volunteers who he was not acquainted with and at a certain point [the diary] disappeared.”  In light of these assertions and the lack of any real prejudice to the defendants, the judge denied the motion.