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Privacy of HIVers' Medical Records Must Be Respected, New York Court Affirms

By Becky Allen

September 23, 2009

A new court decision out of New York offers fresh support for the privacy rights of HIV-positive people regarding their medical records.

The story begins in 2008, when a New York state doctor who specializes in HIV and HIV-related treatment came under investigation by the State Board for Professional Medical Conduct (BPMC). BPMC requested the doctor's files on nine of his patients, and the doctor asked all nine for permission to share their confidential information.

All nine patients refused, and the doctor told BPMC that he would not hand over the medical files since they contained private medical information, including his patients' HIV statuses.

BPMC got a court order requiring the doctor to turn the files over. In response, the doctor filed an action to prevent BPMC from looking at his patients' records. He felt that BPMC's demand for the files violated privacy laws.

Initially, the court sided with BPMC and claimed that the doctor was using privacy rights as a loophole to shield himself from the investigation. However, the case was appealed, and a compromise was found.

In late August, a five-judge panel of the state appellate court decided that the BPMC did need the files for its investigation -- but that it did not need all of the information within them. All material the doctor provides to BPMC will first have indentifying information removed, so that it complies with HIV confidentiality laws -- for example, instead of names, the documents will refer to patients by codes. Personal information, including sexual history, will also be removed, and the court offered each of the nine patients a chance to request additional redactions.

"This decision is important because fear of unauthorized disclosure continues to be one of the biggest barriers to testing for HIV and treatment of HIV-related conditions," Thomas Ude, Jr., a senior staff attorney at Lambda Legal who assisted with the appeal, explained in a released statement. "By insisting on strict compliance with the law in all circumstances, even for government agencies, this decision will help calm the fears of people in treatment -- and people being tested for HIV -- by ensuring maximum confidentiality before HIV-related information is disclosed to anyone. ...

"Even the government must explain the purpose for which it seeks the information, and must show that it needs the HIV-related information to fulfill that purpose. If any information must be provided, every precaution must to be taken to minimize disclosure to that which is absolutely necessary."




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