A New Jersey appeals court recently ruled that a two-year statute of limitations applies to a claim by an HIV-positive patient asserting one of his doctors improperly disclosed his medical status to a third party without consent.  The three-judge Appellate Division panel rejected arguments by the doctor that the suit should be dismissed as time-barred by the one-year statute of limitations typical of defamation claims.

The dispute arose out of a single incident on July 25, 2013, when the patient, given the fictitious name John Smith, was being treated for acute kidney failure by the defendant, who owns a kidney treatment center. Over the course of treatment, the defendant allegedly disclosed Smith’s HIV status to a third party, described as a long time friend of Smith, who was unaware that Smith was HIV-positive.

Nearly two years after the incident, Smith filed suit in Mercer County Superior Court in New Jersey, on July 1, 2015, alleging violations of his common law right to privacy, medical malpractice and wrongful disclosure of his medical status under the state’s AIDS Assistance Act.

The defendant, in his motion to dismiss, argued that the one-year statute of limitations, typical of defamation claims, should apply in this case. Conversely, Smith argued that his claim was more akin to a personal injury or discrimination claim, as opposed to defamation, and thus a two-year statute of limitations should apply.

Superior Court Judge Douglas Hurd agreed with Smith that the defamation statute of limitations was not applicable, and the two-year statute of limited should apply. The defendant appealed the decision.

On appeal, affirming the Superior Court’s ruling, Appellate Division Judge Richard Geiger stated, “Unlike a typical defamation claim, the confidential information allegedly disclosed by [defendant] to the third person was true, not false…The disclosed medical information did not place plaintiff in a false light.” Gieger went on to say, “Patients have a privacy right in their medical records and medical information…We find that the claims for unauthorized disclosure of a person’s HIV-positive status align more closely with discrimination claims.”

The AIDS Assistance Act was passed because the “effective identification, diagnosis, care and treatment of persons” with AIDS was declared by the New Jersey Legislature to be of “paramount public importance.”

Judge Geiger echoed the sentiments of the legislature in his decision stating that it was “strong public policy”, and an “important social goal” to maintain the privacy rights of individuals who are HIV-positive.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.