Medical Malpractice Victim Doesn’t Lose All of Her Medical Privacy Rights By Levine & Slavit PLLC on May 22, 2012

Not so long ago the law seemed clear that people suing for personal injuries arising from medical malpractice or other accidents did not give up their privacy rights concerning their entire medical history but only as to those medical conditions and treatment that was related to the injuries claimed in the lawsuit.  But lately defendants’ attorneys have been demanding authorizations for our clients’ entire medical history, whether or not related to the injuries claimed, based upon their argument that the impact the injuries have on a victim’s life (their loss of enjoyment of life) can only be properly evaluated by a jury in the context of the person’s whole health status.  Many judges and their law secretaries seem to agree.

Fortunately, the Appellate Division, First Department, in Del Terzo v. The Hospital For Special Surgery, 2012 WL 1623569 (May 10, 2012) rebuffed a defendant’s demand for a medical malpractice victim’s HIV-related information, alcohol/drug treatment information and mental health information.  Defendants argued that plaintiff had placed her life expectancy in controversy and the information is therefore material to plaintiff's claims for future damages. Defendants relied on CPLR 3101(a) insofar as it provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Plaintiff opposes defendant's arguments, invoking the protections of confidentiality afforded by Public Health Law § 2785(2) and Mental Hygiene Law § 22.05 and § 33.13.

The appellate court agreed with plaintiff.  The court held that Public Health Law § 2785(2)’s requirement for a compelling need before a court can grant an application for the disclosure of confidential HIV-related information trumped CPLR 3101(a)’s full disclosure.  The court also noted that the plaintiff did not make any claim relating to an HIV infection, nor have defendants even suggested, on the basis of the medical records provided, that there is any history of HIV or AIDS. The court accused defendants of engaging in a fishing expedition.

The appellate court also held that Mental Hygiene Law sections 22.05and 33.13, which permit release of the records of a person who receives chemical dependence services only “upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality,” also trumped CPLR 3101(a).  The court stated that disclosure is warranted only where records of a sensitive and confidential nature relate to the injury sued upon.  The court dismissed the defendant’s generalized assertion that substance abuse and mental illness can affect a person's level of stress, ability to work and life expectancy.

Hopefully the courts will pay heed to this decision, and not limit it to HIV-related information and chemical dependence situations (or just to medical malpractice cases as opposed to motor vehicle or slip-and-fall cases) inasmuch as the court’s rationale in Del Terzo suggests that even where the plaintiff claims loss of enjoyment of life, the extent of the relationship, if any, between the injuries alleged in the lawsuit and the records sought is a limiting factor in directing that authorizations to obtain records be given.

For over 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas, including medical malpractice. If you or someone close to you has been injured in a motor vehicle accident, contact the personal injury lawyers at Levine & Slavit for their help.

To learn more, you can go to our "Injured? What Next" page, and watch our videos.

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Levine & Slavit, PLLC

The law firm of Levine & Slavit, PLLC has served clients in Long Island and the Greater New York City-area since 1957. We are a team of personal injury and wrongful death lawyers who work tirelessly for victims' rights. Our team is licensed and affiliated with the:

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