It is a well-settled rule of law that persons who bring actions seeking compensation for personal injuries affirmatively place their physical or mental condition in issue, thereby waiving the physician-patient privilege attendant to their medical records. See Green v. Montgomery, 95 N.Y.2d 693, 700 (2001); Dillenbeck v. Hess, 73 N.Y.2d 278, 287 (1989); Koump v. Smith, 25 N.Y.2d 287, 294 (1969). Nevertheless, certain types of medical, psychological or related issues are so particularly sensitive in nature they demand additional protections on public policy grounds. Information regarding HIV status or substance abuse have been determined by the Legislature to be entitled to such protection. We now examine these statutory protections, and how the courts have interpreted them in addressing discovery issues in medical malpractice and personal injury actions.

Protections

Information relating to HIV receives protection under Article 27-F of the Public Heath Law, which contains a provision addressing disclosure of such information in civil proceedings. Public Health Law §2785, in pertinent part, provides:

1. Notwithstanding any other provision of law, no court shall issue an order for the disclosure of confidential HIV related information, except a court of record of competent jurisdiction in accordance with the provisions of this section.

2. A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for such disclosure of the information for the adjudication of a criminal or civil proceeding;…

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