At the time of the incident underlying the claim, Claimant was a parolee at the
Willard Drug Treatment Center (hereinafter Willard) run by New York State
Department of Correctional Services. Claimant was transferred to Willard from
Elmira Correctional Facility on June 30, 2004. When he arrived at Willard, he
was interviewed by a nurse who quickly reviewed his records, inquired whether he
needed any medication, and checked for lice. The claim indicates that it was
“[o]n or about July 2, 2004" Claimant went to the infirmary for sick
call. At trial, Claimant testified that he was called out to the infirmary that
day, and met with the same nurse he saw on June 30, 2004, in a large room along
with five other parolees, a couple of correction officers and nurses. Claimant
testified that the nurse was talking very loudly about his “viral
loads” and he asked her to keep it down because it was confidential but
she ignored his request. After he left the area, none of the other parolees at
the infirmary would go near him; they were pointing and whispering. When he
returned to the “barracks” another parolee came up to him and told
him he had HIV, too.
As a result of this event, Claimant said he felt alone and depressed. He could
not complete the Willard program and, as a result, his parole was violated and
he was transferred to another facility until his release in May 2006.
On cross-examination, Claimant said he was not sure of exactly what day this
incident occurred. He tried to remember the nurse’s name from her name
tag and said he believed it began with an “X” and included it in the
claim as “Xairnay.” Claimant was questioned whether he went to the
infirmary for sick call on July 2. Claimant testified that he considered it
sick call because it was at the infirmary, but he clarified that he did not ask
to go to the infirmary that day, he was called out to go there.
Claimant said he spoke with Captain Reynolds about the incident, filed a
grievance, and wrote to the Deputy Administrator and Superintendent at Willard.
He didn’t receive any response despite Captain Reynolds saying he would
look into the matter.
The State produced Louise A. Guzalak, a registered nurse and the nurse
administrator at Willard. She oversees the nursing staff and emphasized that
the nurses are trained to keep patients’ medical information confidential.
A page of Claimant’s Ambulatory Health
was admitted into evidence and it
covered the dates of June 30, 2004, July 1, 2004, and July 2, 2004. The
notation in the records for June 30, 2003, signed by Nurse J. Williamson
reflects that it was an “incoming draft.” The notation from July 1,
2004, signed by Nurse LaVarnway indicates Claimant wants “neurontin”
and an inhaler. The notation from July 2, 2004, with similar writing to the
June 30 entry, reflects Claimant’s HIV status, Hepatitis status, along
with various testing results and Claimant’s complaints. The July 2, 2004
entry has no nurse’s signature. It was Defendant’s contention that
the visit to which this claim refers is July 1, not July 2.
Ms. Guzalak had Ms. Lavarnway send a memo
responding to Claimant’s allegations. Ms. Lavarnway did not recall
Claimant nor did she have his health record. Her statement indicates it was her
custom and practice to keep patient information confidential.
Ms. Guzalak reviewed the sick-call records for Willard and indicated that
Claimant did not attend sick call on July 2, although he did on July 1. Ms.
Guzalak testified that on July 2, Claimant was called out to go to the
infirmary. Ms. Guzalak testified that it was not sick call. Ms. Guzalak
further testified that the nurses are trained to record what is discussed with
Based upon Claimant’s testimony that he was called down to the infirmary,
it was not at his request, and during the visit his viral loads were discussed,
and based upon the ambulatory health record which reflects that on July 2,
Claimant’s HIV status and viral loads were discussed during that visit,
the Court finds the incident Claimant complains about occurred on July 2.
Claimant’s testimony regarding what transpired that day was completely
Public Health Law, article 27-F addresses the confidentiality and disclosure of
HIV- related information and provides a private right of action when a violation
of this statute has occurred (Doe v Roe, 190 AD2d 463; Melendez v
Strong Mem. Hosp., Univ. of Rochester, Inc., 9 Misc 3d 938; Matter of V.
v State of New York, 150 Misc 2d 156; S.S. v State of New York, Cl.
No. 102104, Ct Cl, Fitzpatrick, J., dated January 5, 2006, [UID #2006-018-497]).
The statute restricts disclosure of HIV-related information to specific
exceptions. None of the exceptions apply in this instance. The oral disclosure
of Claimant’s confidential HIV-related information was unauthorized to
other parolees in the infirmary and was an unauthorized disclosure under the
Based upon the failure to keep Claimant’s HIV status confidential, in
violation of Public Health Law § 27-F, the Court imposes the civil penalty
of $2,000 to Claimant, and it is
ORDERED, that to the extent Claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.