Want HIV records? Better Show Compelling Need. (NY)

In the never-ending hunt to discover pertinent and potentially damaging information about a plaintiff, defendants will leave no stone unturned. Typically, to obtain a plaintiff’s medical records, the defendant must simply show that the records are material and necessary to the defense of the action. This is not a hard burden to meet. However, HIV and AIDS records are another story.

In the wrongful death case of Abdur-Rahman v. Pollari, the defendants sought to access the decedent’s HIV records, contending that whether the decedent had HIV or AIDS would be relevant to the plaintiff’s pecuniary damages claim. Part of the problem with the defendants’ request was that it was predicated solely on the plaintiff’s invocation of Public Health Law 2785(2) in response to the defendants’ discovery demands for the decedent’s prior medical records. That is, apart from plaintiff’s use of section 2785(2) in response to the defendants’ discovery demands, the defendants had no basis to believe that the decedent had HIV.

Section 2785(2) limits the circumstances under which a court may order disclosure of HIV or AIDS records, and the only one applicable in Pollari mandates that the requesting party demonstrate a “compelling need” for the records.

The Supreme Court granted the defendants’ request, but the First Department reversed. On the appeal, the defendants argued that the decedent’s HIV or AIDS records were material and necessary and that they had a compelling need for those records because they would impact plaintiff’s pecuniary damages claim, in particular, they argued that HIV or AIDS would have diminished the decedent’s quality of life and reduced his life-expectancy. However, the defendants did not provide an expert affidavit supporting these arguments. The court, in denying the defendants’ request, seized on their failure to provide an affidavit and held that without such an affidavit, it could not comply with 2785(5), which requires the court to support its findings with “scientific or medical findings…”

Special thanks to Gabriel Darwick for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.