There’s a nice decision out of the Appellate Division (First Department) this week that pertains to putting the breaks on litigation disclosure in personal injury cases that is, all too often, out of control in breaching privacy protections. In particular, it deals with HIV records as well as drug/alchohol records and mental health records.

This type of stuff can show up in a medical chart for even a routine car accident as doctors and nurses take histories and social workers plumb the depths of a patient’s worries and concerns. But.  Just because a defendant is entitled to “full disclosure of all matter material and necessary in the prosecution or defense of an action” does that mean they can get these highly privileged (and potentially quite prejudicial) documents?

Enter, stage right, the decision a few days ago in Del Terzo v. Hospital for Special Surgery. The appellate bench explores the conflicting interests of the patient’s desire for privacy and the defendant’s desire to go fishing around the records for anything that might help it.

And the winner here is the patient, thanks to the special protections of New York’s Public Health Law as well as the Mental Hygiene Law. Both have provisions that specifically protect the patients from such nosiness.

With respect to HIV, the defendant must show, according to the Public Health Law,  “a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding.” While that would seem to come into conflict with the “full disclosure of all matter material and necessary” to defend the action, the PHV has supremacy because of these magic words: “Notwithstanding any other provision of law, no court shall issue an order for the disclosure of confidential HIV related information, except . . . in accordance with the provisions of this section.”  And the court added for good measure, recognizing that these demands had nothing to do with this particular claim:

Nor have defendants even suggested, on the basis of the medical records provided, that there is any history of HIV or AIDS. Indeed, defendants seem to be engaged in a fishing expedition.

Turning to the drug and mental health requests, the court was no less helpful to the defendant, pointing out that mental health information shall not be released except “upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality.” The defendant got hammered again by the court, when it wrote:

The interests of justice standard…has not been met in this case where defendants seek the disclosure of confidential records on the basis of nothing more than a generalized assertion that substance abuse and mental illness can affect a person’s level of stress, ability to work and life expectancy.

This is a good case to keep in the breast pocket when those defense demands come pouring. Or  for those times a hospital demands that people waive all their disclosure rights or it won’t furnish records in response to an authorization requesting records. Those records need to be redacted.

A final note: This is the type of objection that should be raised for all such requests, regardless of whether such records even exist. Because if an objection is made only on a selective basis, it tips the hand as to what the records might hold.