NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-12-0817.
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for appellant (Robin L. Yerich, Assistant Prosecutor, of counsel and on the briefs).
Caruso Smith Edell Picini and Mitzner & Mitzner, attorneys for respondent (Steven J. Kaflowitz, on the brief).
Before Judges Fisher, Alvarez and St. John.
By leave granted, the Somerset County Prosecutor's Office appeals a May 15, 2012 Law Division interlocutory order denying the State's application to obtain the medical records of defendant C.M. He is charged in two counts of third-degree diseased person committing an act of sexual penetration, N.J.S.A. 2C:34-5(b). Each count corresponds to a separate alleged victim. The disease in question is human immunodeficiency virus (HIV). For the reasons that follow, we affirm in part and reverse in part.
We briefly summarize the facts gleaned from the record. Defendant and Courtney were in a dating relationship from January or February 2011 through August 2011, when she learned that defendant was HIV positive. That month, defendant agreed that Courtney could accompany him to an appointment with his treating physician. On August 30, 2011, they met with defendant's doctor, who informed Courtney that years earlier defendant had been diagnosed with HIV and that she should be tested because of the risk of infection. Courtney recorded the conversation and turned the tape over to the prosecutor's office. Courtney initially learned about defendant's medical status from a woman he had previously dated, Nancy.
Nancy's relationship with defendant came to a close towards the end of 2010 or beginning of 2011 when defendant directed her attention to an explanation of his medications. In that fashion, she learned they were prescribed for HIV patients and that defendant was HIV positive.
The trial judge denied the State's pretrial motion to obtain defendant's medical records because he found that the State had not established good cause as required by N.J.S.A. 26:5C-9(a), and because the records were protected by the patient-physician privilege. See N.J.S.A. 2A:84A-22.1 to -22.7; N.J.R.E. 506. The court ruled that the conversation between Courtney and defendant's treating physician was protected by the privilege as well.
The State raises the following points on appeal:
HIPAA AND STATE LAW ALLOWS FOR THE RELEASE OF THE DEFENDANT'S MEDICAL RECORDS AS THEY PERTAIN TO HIS HIV STATUS AS THERE IS A LEGITIMATE LAW ENFORCEMENT PURPOSE TO BE SERVED BY SUCH ...