Medical Privacy Rights of 'Patient Zero'—and AIM—Upheld

(This story has been updated from its original version.)

OAKLAND, Calif.—In a decision filed on June 14, Alameda County Superior Judge Winifred Y. Smith granted the Motion for Summary Judgment filed by "Patient Zero," who was forced to sue both the California Division of Occupational Safety and Health (CalOSHA) and the Adult Industry Medical (AIM) Healthcare Foundation to protect her medical privacy rights against unwarranted disclosure to CalOSHA officials.

"The judge took a look at the evidence that had been developed in the case so far and said that CalOSHA hadn't presented any evidence that it had the required reasoning to have the private information about performers," stated Karen Tynan, attorney for AIM. "Of course, this is a terrific ruling for the industry and for performers and performer privacy."

AVN readers will recall the "Patient Zero" case, where on June 6, 2009, after the patient sought to return to performing in adult movies, AIM found that the person had tested HIV positive and, acting with the patient's permission, contacted her sexual partners to come into AIM to be tested for their own possible exposure to the virus.

It was shortly thereafter, however, that CalOSHA attorney Amy Martin and a team of agency investigators descended on AIM for an "unannounced inspection," which, according to the summary in the court record, "included a request to review medical records for Plaintiff ["Patient Zero"] and other patients."

But when AIM refused to release the requested information based on the HIPAA medical privacy laws, CalOSHA returned with a subpoena for "information regarding patients who have tested positive for HIV and other STDs from January 1, 2004 to June 17, 2009, as well as test dates, names and contact info for each production company for which the patient worked and dates of work," as well as "investigatory interviews with AIM staff."

Of course, under the California Medical Information Act of 2006, absent voluntary agreement by the patient, such information can only be released to a "licensed healthcare professional"—and CalOSHA attorneys and investigators don't fit that description. To thwart CalOSHA's unwarranted intrusion into her privacy, Patient Zero filed suit in Alameda County Superior Court to quash the subpoena and prevent the interviews of AIM staff to the extent that they sought HIV-related and other medical information. On October 16, 2009, Judge Smith granted a temporary injunction preventing CalOSHA from seizing the medical data and restraining them from questioning AIM staffers.

As AVN noted at the time, CalOSHA was also, at that time, "attempting to browbeat performers and other AIM clients into revealing both personal and professional information by attempting to question them as they exited the AIM clinic. They have also reportedly contacted relatives and roommates of adult performers in an attempt to gain information to which they may not be legally entitled."

In the June 14 ruling, Judge Smith cited the text of California Health and Safety Code §120975, which states that except in certain limited circumstances, "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." She further noted that §120980 "provides civil penalties for persons who negligently disclose, and criminal penalties for persons who willfully disclose, the results of an HIV test."

"CalOSHA's subpoena does not fit any of the limited exceptions permitting disclosure of HIV test results," Judge Smith's ruling stated. "CalOSHA argues that an administrative investigation subpoena is not a 'proceeding' within the meaning of Section 120975's prohibition of disclosure in 'any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings.' Numerous cases have acknowledged the inherent ambiguity of the word 'proceeding' and that its meaning is dependent upon the context in which it is used."

Judge Smith then discussed cases cited by CalOSHA's attorneys to bolster its position, but concluded that none of them overcome the plain language of the statute.

"Further, the express and limited exceptions in Chapter Seven [of the Health and Safety Code], such as those for public health officers and emergency services personnel, would be rendered meaningless if another governmental agency could obtain the information in the course of an investigaiton simply because no adjudicatory process [such as a trial] had yet been initiated," the judge ruled.

Judge Smith also found a privacy right for Patient Zero in Article I, Section 1 of the California Constitution, noting that "there is a legally protected pirvacy interest in disclosure of HIV test results." She found similar privacy rights in the U.S. Constitution's Fourth Amendment protections against warrantless searches, as well as the Fourteenth Amendment's guarantees of substantive due process—the same theory upon which the Supreme Court's decision supporting sexual privacy in Lawrence v. Texas was based.

"The information sought in CalOSHA's subpoenas includes Plaintiff's and others' HIV status and other identifying information or information that could lead to their identities," she wrote. "That information is sensitive and confidential, as is evidenced by the strong limitations on its disclosure found in the Health and Safety Code. Revealing that information, even to a government agency charged with protecting worker safety, would constitute a serious invasion of Plaintiff's privacy." [Citations removed here and below]

Judge Smith also dismissed CalOSHA's claim that the limited disclosure form that performers commonly signed when testing at AIM allowed CalOSHA to obtain the same information, noting that the only persons to whom the test information could be disclosed under that waiver were healthcare officials and "others AIM deemed appropriate for the public's safety"; i.e., Patient Zero's sexual partners. Similarly, the possibility that Patient Zero's name could appear on AIM's producer database to indicate a negative HIV test does not mean that the non-appearance of her named indicated a positive test, as CalOSHA argued.

Judge Smith also shot down CalOSHA's intention that AIM fit the definition of an "employer" simply because it engaged in talent testing and provided some limited results in its producer database.

Finally, Judge Smith found that CalOSHA had not demonstrated a "compelling state interest ... which justifies the [intrusion] and which cannot be served by alternative means less intrusive on fundamental rights." [Internal quotation marks omitted]

"CalOSHA has articulated three interests: (1) establishing whether AIM is an 'employer' in the adult film industry; (2) identifying film producers who are exposing employees to serious health risks; and (3) monitoring and enforcing reporting requirements regarding exposure to bloodborne pathogens," the judge recounted. "As in the preliminary injunction phase of this case, CalOSHA has offered no logical nexus between individual test information or employment history of patients testing positive for HIV or other sexually transmitted diseases and the question of whether AIM fits the definition of an 'employer' of Plaintiff. Nor does CalOSHA explain why the information sought here is necessary to, or even aids in, determining whether AIM fits the definition of 'employer'."

"CalOSHA is limited to investigating employers and their agents," the judge continued. "While CalOSHA has apparently obtained or confirmed information during the course of the instant litigation concerning AIM's procedures, AIM's relationship to film companies, and how those companies access AIM's database, it is still apparently unprepared to offer any evidence that AIM meets any definition of 'employer' under the statute or regulations as to Plaintiff or any other person whose information is sought by the subpoena. And while CalOSHA argues that AIM 'required' Plaintiff to undergo STD testing and 'sen[t] her off to work for various adult film producers,' the evidence cited by CalOSHA does not support these contentions."

"Without evidence or persuasive argument to support its contentions, the Court cannot find that CalOSHA has a need, much less a compelling need, that would overcome Plaintiff's privacy rights," Judge Smith concluded. "As such, the analysis can end here, CalOSHA having failed to substantiate a competing [sic] interest."

Finally, Judge Smith noted that if CalOSHA really wanted to address interests (2) and (3) noted above, it could engage either in "industry education" or "on-site inspections of the film producers themselves."

"If you look at the judge's ruling," Tynan commented, "the steps that the industry is taking right now with APHSS and the way the industry is looking to protect performer privacy, they're entirely consistent with Judge Smith's reasoning and with the analysis of the privacy law and the analysis of the constitutional protections, so I like that ruling for where the industry's headed."

While it's unclear how long CalOSHA has in order to file an appeal from Judge Smith's decision, if it wishes to do so, check back with for the latest information on this continuing controversy.