New York State Court of Claims

New York State Court of Claims

S.S. v. STATE OF NEW YORK, #2006-018-497, Claim No. 102104


The sum of $5,000 is imposed upon the Defendant as a penalty pursuant to article 27-F.

Case Information

S. S. The Court has amended the caption sua sponte due to the sensitive subject matter. The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :
The Court has amended the caption sua sponte due to the sensitive subject matter.
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 5, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from the State for the unauthorized disclosure of his confidential medical records on January 20, 2000, while he was an inmate at the Oneida Correctional Facility.

At trial, Claimant testified he filed a grievance in January 2000 regarding the facility's refusal to treat his Hepatitis C condition. On January 20, 2000, Claimant attended a hearing to address the grievance. At that time, Claimant learned that an investigative report was prepared for the hearing by the Inmate Grievance Program Coordinator, Florence Bennett, and distributed to the hearing panel, which included three inmates and two correction officers. The report contained confidential information regarding Claimant's HIV status which Florence Bennett had obtained from Nurse Nancy Larkin without Claimant's consent. Claimant saw the investigative report. After the grievance hearing began, Claimant was presented with a waiver, passed to him by a fellow inmate, to permit access to his medical records and information. Claimant refused to sign it. Ms. Bennett then retrieved the investigative report and shredded it. Claimant told Ms. Bennett he would be requesting a copy of the investigative report pursuant to FOIL. She indicated it could not be produced because it had been shredded. The Claimant argues his HIV information should not have been shared by the medical department without Claimant's prior authorization pursuant to New York Public Health Laws article 27-F. On April 17, 2000, Claimant filed a grievance with this facility regarding the improper release of his confidential information.

Claimant testified at trial that after the hearing his friends at the prison avoided him, and other inmates would refer to his HIV status when he was present. He sought a transfer which was never granted, and he testified that he suffered from anxiety and depression as a result of the breach of confidentiality. He requested an appointment with a psychiatrist and eventually was treated by one and received two prescriptions.

The Court received various documents into evidence which support Claimant's testimony with the exception that in the documents, Ms. Bennett denied having disseminated Claimant's HIV information to the whole committee.[1]
In these documents, the facility's response to Claimant's grievance relating to the release of his confidential information, indicates a policy was in place since December 28, 1998, directing that an authorization be obtained from the grievant for the release of any HIV/AIDS related information relevant to the grievance.
On cross-examination, Claimant admitted having numerous health problems before this incident, including emotional troubles, but he denied being treated with an antidepressant until after January 20, 2000.

The State called two witnesses. Nurse Deborah Trexler testified about the difficulties encountered when treating patients with both HIV and Hepatitis C. Basically, the treatment for one disease aggravates the other disease. Often inmates must choose between treatments and many take issue with their doctor's treatment decisions. The January 20, 2000 grievance hearing involved Claimant questioning his doctor's treatment of those two conditions. Nurse Trexler's testimony, however, did not elucidate any explanation for the medical department's release of Claimant's confidential information without his prior consent.

The State's second witness, David Debejian, is the current Inmate Grievance Program Supervisor at Oneida. Mr. Debejian testified about how he handles the program procedures. Mr. Debejian was not in that position on January 20, 2000, but the grievance procedure is basically the same now as it was then. When an inmate wants to file a grievance, he first meets with the supervisor of the program who attempts an informal resolution. If that fails, he assists the inmate with preparing the grievance and then an investigation is done. The investigation may or may not involve contacting the medical department at the facility. However, if it does, the inmate is asked, in private, to sign a release for his records before the grievance hearing. According to Claimant, this was not how his grievance was handled.

No one attending the grievance hearing on January 20, 2000, other than Claimant, testified. Defendant argues that any disclosure was privileged based upon legal justification or excuse. The release of the confidential information within the context of an inmate grievance was, according to Defendant, justified.

Public Health Law article 27-F, entitled, "HIV and AIDS Related Information" addresses the confidentiality and disclosure of HIV related information, and provides a private right of action when a violation of this statute has occurred (
see Matter of V. v State of New York, 150 Misc 2d 156, 158). Public Health Law § 2782 restricts the disclosure of the HIV-related information to specific exceptions. None of the people to whom Claimant's health information was disclosed qualify under any of the statutory exceptions to non-disclosure, therefore, the information should not have been disclosed without his authorization under either Public Health Law article 27-F or by Defendant's own policies (see Exhibit 3).
For the improper disclosure of his private information, Claimant seeks damages for his emotional injuries as well as punitive damages. Claimant testified to his emotional injuries. He described his loss of sleep, nightmares, depression and distress after his HIV status was disclosed. He sought treatment from a psychiatrist and was given antidepressant medication. Claimant argues that his emotional injuries were directly caused by Defendant's violation of article 27-F.

In opposition, Defendant argues that Claimant cannot be compensated for consequential emotional harm. It is Defendant's position that since Claimant admitted, on cross-examination, that he suffered no physical harm from the disclosure, he therefore, suffered no proximately caused compensable injury.

Claimant's request for punitive damages is denied. Punitive damages are not available against the State (
Sharapata v Town of Islip, 56 NY2d 332, 339).
Claimant has established a violation of Public Health Law §2782 warranting the imposition of a penalty. The Court does not consider the inclusion of Claimant's HIV status in the investigative report as requiring a separate penalty, nor is the Court persuaded that each member of the grievance review committee received a copy of the investigative report.

From Claimant's own testimony, Ms. Bennett only confiscated one copy of the report for shredding, and Claimant did not testify that he saw other committee members with a copy of the report. Accordingly, the Court therefore imposes upon Defendant a penalty of FIVE THOUSAND DOLLARS ($5,000).
The Court does not make an award of compensatory damages for emotional injury. First, the Court is not persuaded by Claimant's argument for presumed damages in reliance on
Nolley v County of Erie (802 F Supp 898). The Federal Court in Nolley extended the application of presumed damages awarded in defamation per se cases to an established violation of plaintiff's constitutional rights and statutory protections under New York State Public Health Law article 27-F. The Courts of this State, however, have not followed the Federal Court's direction and have, in fact, taken a restrictive view of awarding damages for emotional injury in the absence of accompanying physical injuries. Although the requirement for attendant physical injuries has been discarded, there must be facts to insure a guarantee of genuineness (Kennedy v McKesson Co., 58 NY2d 500, 504-505; Garcia v Lawrence Hosp., 5 AD3d 227; Kaufman v Physical Measurements, 207 AD2d 595, 596). Here, Claimant has established that Defendant owed him a statutory duty not to disclose his confidential information and breached that duty. An emotional injury can be compensated based upon that breach. However, the proof establishing the causal relationship between Defendant's breach and Claimant's emotional problems is insufficient. Claimant admitted, on cross-examination, that he had prior emotional health problems and it is impossible for this Court, without expert medical testimony, to determine and assess what portion of Claimant's emotional problems are the result of the unauthorized disclosure or pre-existing (Tatta v State of New York, 20 AD3d 825; Erani v Flax, 193 AD2d 777).
In accordance with article 27-F, the penalty of FIVE THOUSAND DOLLARS ($5,000.00) is imposed upon the Defendant and payable to Claimant. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).


January 5, 2006
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit 3.