February 16, 2011 Articles

HIV, AIDS, and Barring Discovery

Jessie Zaylía

It is difficult to rejoice when an appellate court rules in your favor if the rationale behind the ruling is faulty. In defense of workers' compensation, Children's Hospital & Research Center Oakland v. McKnight (McKnight) is such a case. Although the case is unpublished and, hence, cannot be cited, unpublished cases may foreshadow trends that develop into precedent. When such cases involve marginalized groups, it behooves us to pay attention.

The facts in McKnight can be summarized as follows: McKnight was employed with the Children's Hospital & Research Center as a specialist in infant development between November 1981 and June 1999. Specifically, McKnight worked in the hospital's Parent Infant Program. Though the program did not provide medical treatment to children, it did provide services to children three years old and younger with developmental disabilities. Part of McKnight's duties included visiting children in their homes and supervising the children in groups.

Beginning in November 1996, McKnight began experiencing symptoms such as rash and fever. In 2001, she lost 20 pounds over a period of eight months. In January 2002, McKnight began having "unexplained daily fevers," and an HIV test was finally administered. She tested positive. The court noted and explained that McKnight had no external risk factors that would lead her to encounter the virus outside of her work at the hospital.

A year later, in October 2003, McKnight submitted a petition for increased benefits to the Workers' Compensation Appeals Board. She argued that exposure to children and their bodily fluids during her work within the program caused her to contract HIV. McKnight cited two particular instances when she came into direct contact with a child's blood: (1) in early 1996 or late 1997, when a child bit her finger to the point that it drew blood, and (2) in early 1997, when McKnight cared for a child who had split his lip open. More generally, McKnight also recalled having to take care of children with bloody noses and scraped knees. Because McKnight gardened, she argued that her hands were susceptible to cuts.

The issue of causation was tricky in this case: "[B]efore an employer can be held liable, the worker must show not only that the injury arose out of and in the course of employment but also the injury was proximately caused by the employment. [Citations.]" City of Long Beach v. Workers' Comp. Appeals Bd. (2005) 126 Cal.App.4th 298, 310.

One doctor, Dr. Allems, indicated that non-blood sources, such as mucus and feces, are not sources of HIV. Dr. Allems also stated that causation could not be attributed to her work with "reasonable medical probability."

Another doctor, Dr. Fishman, concluded differently. Though the chances that McKnight could have contracted HIV at work were small indeed, it was nevertheless a possibility. Therefore, since other non-industrial factors did not present a source of transmission, Dr. Fisherman concluded that McKnight's contraction of HIV likely resulted from her work at the hospital.

This is where the case becomes legally, and not just factually, intriguing. To bolster her claim of causation, McKnight served a discovery request, which sought all of the hospital's records that reflected the HIV status of the children in the program between 1989 and 1996. In turn, the hospital argued that the discovery would violate Health and Safety Code section 120975, "which prohibits the compelled disclosure in a legal proceeding of individually identifiable HIV-related blood test information."

The McKnight case involves the competition of two very important policies. On one hand, society, and, by extension, the legislature, wants to protect the identities of those who are HIV positive. This is likely due to the stigmatization of such individuals and resulting discriminatory treatment. On the other hand, however, it seems unjust for a person to be wholly precluded from discovering the cause of his or her own HIV infection, thus stymieing one's factual causation argument. This is a case of legislative privacy protection versus the right to discover.

McKnight urged that she sought data—not identification. Further, records would be redacted to ensure the children's privacy.

The judge granted the discovery petition and ordered the hospital to provide the number of HIV-infected children in the program, their ages, and their genders from February 1981 to the end of 1993, and from January 7, 1997, to the end of 1999. (The years of 1994, 1995, and 1996 had already been reviewed by stipulation.) The judge reasoned that information regarding age and gender "would not identify an individual child" who was HIV-infected.

The appellate court argued that the judge's decision ran counter to the decision in Irwin Memorial Blood Centers v. Superior Court (1991) 229 Cal. App. 3d 151, where the court found that a discovery order that permitted anonymous discovery of individuals with AIDS violated what is now section 120975. The potential deponents in Irwin were blood donors whose blood had resulted in contaminated transfusions. Even though the deponents would have been concealed behind a screen during their depositions, and other identifiers such as names and social security numbers would not be disclosed, a strict reading of section 120975 required absoluteprohibition against compelling disclosure from such individuals. The court reasoned that the deponents' voices could identify them. Also, the referee and the recorder would see those persons. Further, the deposition process itself would identify the deponent as soon as the person matching an anonymous number would appear for deposition. The hard and fast rule from Irwin is that no type of protection against the identification of a person with HIV or AIDS will satisfy section 120975's absolute ban on the discovery of infected individuals in a third-party legal proceeding.

In McKnight, the court failed to distinguish between the case at bar and Irwin. The court explained that the hospital's staff would have to comb through records, implying that this would, hence, identify the children to the staff. In fact, the court likened such a hospital worker to the referee or court reporter in Irwin. However, the files for these same children are already available to the staff; this is not so with a court referee or reporter. Moreover, this concern of the court does not speak to the legislature's concern that the identifying information would be used in a legalproceeding rather than in a hospital on a clipboard where only statistics would be recorded.

The statute does not indicate that anyone anywhere shall not learn of any statistics related to HIV or AIDS-infected persons. Such a law would be unreasonable. It is important to note that, as was the case here, medical staff have access to records of those infected with HIV and AIDS so that proper treatment can be administered when necessary. We want hospital staff to have access to these records for treatment purposes.

Yet, the court conflated identification in third-party legal proceedings with identification already existing within medical records that would then be presented in data-like form for the purposes of third-party legal proceedings. The two instances are quite different, especially since hospital staff already have access to files that contain information regarding individuals' HIV status. If anything, hospital staff would merely rediscover what had already been noted and filed away in the first place—namely, in this case, the children's HIV status.

The court also noted that the test in McKnight should not be one of balancing privacy and discovery; after all, section 120975 expressly rejects such balancing by creating an absolute ban on identifying HIV-infected people in third-party proceedings. However, nothing in the statute places an absolute ban on discovery—only identification, which occurs through discovery. Again, the court has conflated two very distinct concepts. The statute specifically speaks to identification—not broad, vague, and anonymous statistics.

Section 120975 provides: "To protect the privacy of individuals who are the subject of blood testing for antibodies to human immunodeficiency virus (HIV) . . . no person shall be compelled in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings to identify or provide identifying characteristics that would identify any individual who is the subject of a blood test to detect antibodies to HIV." (emphasis added.)

The leap that data in the form of statistics—the type of information that McKnight sought in her case—somehow amounts to identification in legal proceedingsis, at best, attenuated. At worst, the connection is simply erroneous. That the court propounded the fact that no exception existed in third-party proceedings is, thus, irrelevant.

McKnight needed data. She needed it so that she could either prove causation or be proved wrong regarding causation. She did not care about identifying the children. She did not want to depose them. She did not want to bring them into court. She wanted numbers—not specific identifiers that would point to any individual. The data would likely look something like this, if anything: "two male children, age 3, between February 1981 to the end of 1993." It is hard to see how this quantitative information equates to identification or to characteristics that would identify an individualso as to compromise that particular person's identity. This is especially true considering that in all probability, the program provided services to hundreds of children during the periods of requested discovery.

This case is highly distinguishable from Irwin, where infected persons would literally be brought before officers of the court in a legal proceeding in the form of a deposition. In McKnight, no individuals would be required to participate in any legal proceeding in any manner. Rather, a statistic would be brought before the board.

Even if we agreed that the age and gender requirements go too far—that those characteristics identify or provide identifying information within the meaning of the statute—certainly a quantity that would reflect only the number of cases of children within the program would not. Yet, the court manages to reason otherwise. In footnote 8, the court addressed McKnight's willingness to limit discovery so that neither the ages nor the genders of HIV-infected children would be disclosed. The court responded that, although such a modification would better protect privacy, this did not change the fact that the hospital's staff would have to thumb through records and report the participants' HIV status.

The court attempted to support its opinion by looking to California Health and Safety Code section 121022, which was implemented after section 120975. Section 121022 "requires health care providers and laboratories to report cases of HIV infection to the local health officer using patient names, in order to 'ensure knowledge of current trends in the HIV epidemic and to assure that California remains competitive for federal HIV and AIDS funding" (§ 121022, subd. (a)). Notwithstanding, the legislature insisted that "reported cases of HIV infection shall not be disclosed, discoverable, or compelled to be produced in any civil, criminal, administrative, or other proceeding" (§ 121022, subd. (d)). Therefore, the court concluded that section 121022, subdivision (d), "creates a blanket prohibition against disclosure (including discovery) of 'reported cases of HIV infection' in a third party's legal proceeding. Taken together with section 120975, section 121022, subdivision (d) reinforces the view that the legislature has determined that the prohibition against compelled disclosure of such information is 'absolute.'"

The problem is that the court, yet again, combines two very distinct issues. It mixes the need for names for the purposes of obtaining federal funding from section 121022, subdivision (a) and the concern with privacy from subdivision (d). The court takes the language from subdivision (d)—that reported cases shall not be disclosed—out of context and the very essence of section 121022 as a whole, which requires the use of infected persons' names—an obvious identifier.

Further, the court takes its misinterpretation of section 121022 and uses it to bolster the idea that the fact the HIV cases exist can't even be discoverable in a purely quantitative, non-identifying manner. As a result, the court expands section 120975's concern with privacy to an all-out ban on the discoverability of cases, even when discovery would comply with the statute's overarching privacy concerns.

The court disposed of the case by granting the hospital's writ of mandate and vacating the board's orders to allow discovery. The court also reprimanded the board for impermissibly applying a balancing test between infected individuals' privacy and the need for discovery.

There appears to be a false dichotomy between whether section 120975 permits a balancing test or whether the statute requires an all-out ban on the discoverability of all things related to HIV third-party proceedings. This is misleading. Though the court in McKnight was right that nothing in section 120975 permits a balancing test, the court goes too far by interpreting the statute to require an absolute ban on all things discoverable regarding HIV third-party cases.

A middle ground does exist. Indeed, the middle ground is apparent from the statute itself. Section 120975 is concerned with one overarching policy: privacy. Because of this, it focuses on three aspects of cases that it seeks to preclude: (1) anything related to the identification(2) of an individualwith HIV or AIDS (3) in a legal proceeding. This is the test.

When the court concluded that the legislature meant to ban the quantifiable fact that HIV cases exist in the hospital in McKnight, it went too far. Consequently, the court engaged in precisely what it sought to avoid—namely, poor reasoning.

The idea that a case with facts similar to McKnight would cross anyone's desk seems highly unlikely. The holding in this case may inevitably help workers' compensation defense attorneys if it is indicative of an upcoming trend in case law, because it would create an absolute ban on the discoverability of HIV cases. Hopefully, however, any such case with precedential value will not create an absolute ban on discovery in HIV cases where the legislature has not created one.

Keywords: HIV, AIDs, workers' compensation, McKnight


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).