Published September, 2013

State of New Jersey v. C.M., 2013 N.J. Super. Unpub. LEXIS 1760 (2013)

C.M., a man living with HIV, allegedly had intercourse with women without disclosing his HIV status. He was charged under New Jersey's HIV criminal law, "diseased person committing an act of sexual penetration," a third-degree crime when a person "commits an act of sexual penetration" without the informed consent of the other person and with knowledge that he is HIV positive (N.J.S.A. 2C:34-5(b)).

As part of this case, prosecutors tried to obtain C.M.'s medical records. The trial judge denied the prosecution access to C.M.'s medical records because prosecutors had not established "good cause" for obtaining those records, and because the medical records are protected by the patient-physician privilege. The trial judge's decision was affirmed on appeal by the Superior Court of New Jersey, Appellate Division.

The Appellate Division noted that the Federal Health Insurance Portability and Privacy Act of 1995 (HIPAA) prohibits disclosure of protected health information including medical records, but permits disclosure to law enforcement officials for law enforcement purposes if the information is relevant and material to a legitimate law enforcement inquiry and the request is sufficiently specific and limited in scope. Under New Jersey law, the prosecution could not to seek disclosure of C.M.'s medical records because state law only permits a court to authorize disclosure of a person's medical record for the purpose of conducting an investigation of or prosecution for first-degree crimes. N.J.S.A. 26:5C-9(a). Additionally, the Appellate Division found that the medical records – which contain sensitive, personal, and confidential information – were protected from disclosure under the patient-physician privilege.

Although the medical records were not disclosed, the Appellate Division found that a tape-recorded conversation between C.M., his girlfriend, and his physician could be played to the jury because C.M. waived his patient-physician privilege when he invited his girlfriend to his medical appointment. The court was clear to limit its ruling to the tape-recorded conversation only, stating that C.M.'s waiver of the patient-physician privilege in that instance could not be used to justify disclosure of his medical records.