MELENDEZ v. STRONG MEMORIAL HOSPITAL (2005)

The defendants Strong Memorial Hospital s/h/a Strong Memorial Hospital, University of Rochester, Inc. move this court seeking an order pursuant to CPLR § 3212 granting them summary judgment and dismissing the Compliant as to them and such other and further relief as to this Court seems just and proper.

Now, upon the foregoing papers and upon hearing oral argument on July 28, 2005 and due deliberation had thereon the motion is in all respects Denied.

The relevant facts are not in dispute for the purposes of this motion.   The plaintiff, Angel Melendez, an inmate at the Willard Drug Treatment Campus, presented to Strong Memorial Hospital for an office visit at the infectious disease clinic on March 27, 2002.   Accompanied by an unknown correctional officer, the plaintiff was evaluated by Nurse Jane F. Sassone (hereinafter nurse or Nurse Sassone) for the efficacy of his antiretroviral medications.   Prior to discussing the plaintiff's HIV status Nurse Sassone requested that the officer exit the examination room at which time he refused.   The nurse then began to discuss the plaintiff's medical condition, subsequently disclosing his HIV positive status to the correctional officer.   The officer then proceeded to disclose said information to other members of the Willard Drug Treatment Campus staff.   As a result of this disclosure the plaintiff has allegedly suffered mentally, physically and emotionally and the present action ensued.

 The defendant asserts that no liability exists because the correctional officer (hereinafter officer) was an authorized agent performing the functions and duties of the State Commission of Correction (hereinafter State Commission).   The Court disagrees.   The officer was in fact directly employed by the Department of Correctional Services (hereinafter DOCS) and not the State Commission.   The main function of the State Commission is to advise and assist in developing policies, plans and programs for the administration of correctional facilities and the delivery of services therein.   NY CLS § 45.   That being the case, DOCS is thereby susceptible to the regulations laid out by the State Commission.   This Court finds that the correction officer does not qualify as an authorized agent pursuant to 9 NYCRR § 7064.8 or Article 27-F of the Public Health Law (hereinafter Article 27-F).

Under 9 NYCRR § 7064.8(a)(15) no person who obtains confidential HIV-related information in the course of providing health or social service may disclose or be compelled to disclose such information, except to the following:

“An employee or agent of a provider of health or social services when necessary to provide supervision, monitoring or administration of services and when an employee has access in the ordinary course of business to records related to the care, treatment, or provision of a health or social service, and in accordance with regulations promulgated in accordance of Article 27-F of the Public Health Law. Disclosure to an employee shall be authorized only when necessary to:  (I) enable the chief administrative officer to appropriately maintain custody and supervision of the protected person ․ and (ii) the medical director reasonably believes that without disclosure circumstances will exist creating a significant risk.”

These elements are conjunctive and therefore must all be proven.   In addition, Article 27-F § 2782(1)(o ) provides in pertinent part that “disclosure may not be made unless to an employee of the commission of correction to the extent the employee is authorized to access records containing such information to carry out the commission's function, powers and duties.”

In the case at bar, the Court acknowledges the officer's duty to supervise as outlined in § 52.9 of DOCS employee rules.   That section provides that an employee accompanying inmates out of the institution shall remain with them until they are turned over to another authorized employee.  9 NYCRR § 7010.2 states that each facility shall provide the necessary security and supervision during the period of hospitalization and in the course of transportation to and from a medical facility.   However, this Court is of the opinion that that duty does not in and of itself authorize disclosure of HIV status or related information.   To find otherwise would, in the eyes of this Court, be contrary to the legislative intent of Article 27-F which states that exceptions to the general rule of confidentiality of HIV related information should be strictly construed.   L. 1988, ch. 584 § 1. The intent is further clarified in exhibit A of the 1988 NY Assembly Bill A 9765-A/Senate Bill S. 9265-a by stating:

“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 to medical personnel, it is the intent of this legislation to only allow disclosure 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.”

See also In the Matter of V. v. State, 150 Misc.2d 156, 159, 566 N.Y.S.2d 987.   The correctional officer would also not have access to said records in the ordinary course of his work.   See 7 NYCRR Chapter II.

Due to the duty to supervise the officer was allowed to remain in the examination room and oral disclosure of HIV related information took place.   He was not an authorized agent under the provisions set out in Article 27-F. As such, pursuant to § 2782(5)(a) of Article 27-F the disclosure should have been accompanied or followed by a statement in writing, within ten days, that includes the following:

“This information has been disclosed to you from confidential records which are protected by state law.   State law prohibits you from making any further disclosure of this information without the specific written consent of the person to whom it pertains, or as otherwise permitted by law.   Any unauthorized further disclosure in violation of state law may result in a fine or jail sentence or both. A general authorization for release of medical or other information is NOT sufficient for further disclosure.”

See also 7 NYCRR § 7.5(h).  No such statement has yet been furnished to the court.

 The defendant also contends that no liability exists due to the unforeseeability that the correctional officer would disclose the plaintiff's HIV status to other members of the Willard Drug Treatment Campus staff.   It is the opinion of the Court that it is, in fact, foreseeable that the HIV status of the plaintiff would continue to be disseminated once released in the presence of a third party.

For the afore mentioned reasons defendant's motion for summary judgment is hereby denied.

This constitutes the Decision and Order of this Court.

MARSHA L. STEINHARDT, J.