Published August, 2009

Anonymous v. New York State Department of Health, State Board of Professional Medical Conduct, 65 A.D.3d 491 (N.Y. App. Div. 2009)

A physician whose practice focuses on the care and treatment of people with HIV was the subject of a professional misconduct investigation initiated by the New York State Board of Professional Medical Conduct. The law in New York allows the Board to investigate the conduct of a physician based on an anonymous complaint and without having to inform the physician about the nature of the investigation. In this case, the physician was told only that the treatment of nine HIV-positive patients was at issue and that the records of those patients would have to be turned over to the Board. (It is unknown how the Board obtained the names of the nine patients, all of whom indicated that they had no complaints with the care the physician had provided them.)

In response, the physician asserted that New York State Public Health Law § 2782 (New York's HIV testing and confidentiality law, also known as Article 27F) prevented him from disclosing confidential HIV-related information without the patients' consent. The Board then issued a subpoena seeking the records. The physician asked permission from the patients to disclose the information, but every patient declined. Consequently, the physician sought court permission to refuse to turn over the records. In connection with the physician's request to the court, a number of the patients submitted affidavits stating why the mandated disclosure of their complete medical records violated their reasonable expectations of the confidentiality of their disclosures about HIV, and sensitive details of their personal lives and medical history. The lower court, however, ruled in favor of the Board, explaining that "a physician may not invoke patient privacy rights to shield himself from a misconduct investigation."

On appeal, the court acknowledged that the Board was acting within its authority to request the medical records in question. However, the court noted that § 2782 is ambiguous in its treatment of subpoenas for medical records and, given the apparent lack of precedent, sought guidance from the legislative record. The court concluded that "the drafters did not authorize a blanket and wholesale disclosure, simply because a legitimate investigation is being conducted." Accordingly, the court found that the records could be released, but only if identifying patient information is redacted (although not permanently redacted). The court also directed that the nine patients whose records are in question be given the opportunity to submit objections to the release of certain pieces of information within their records.