Monday, March 12, 2007

In a dental malpractice action, what is the proper standard for the court-ordered release of records containing HIV-related information?

The proper standard is "compelling need," according to the First Department in Deriesthal v. Judy, decided on March 8, 2007. The controlling statute is Public Health Law § 2785, which, in pertinent part, says: "A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding . . . ." The Court noted that this is clearly distinct from the "material and necessary" standard of CPLR 3101(a).