On October 16, a judge ruled on Stephen Collett’s legal action against Athens Gastroenterology Endoscopy Center in the Middle District of Georgia on grounds that the plaintiff surgeon contracted human immunodeficiency virus (HIV) from a defective colonoscope while performing surgery on 45 patients. During the litigation, Collett sought a court order to compel third-party discovery against Olympus Medical Systems and Olympus America, mandating that the centers notify the plaintiff if any of the patients treated by Collett were HIV-positive prior to receiving surgery. The court denied the plaintiff’s motion to compel on grounds that HIV-status information is immune to discovery requests, except in limited circumstances laid out by statute.
The court explained that the Federal Rules of Civil Procedure permit only the discovery of “nonprivileged matter,” with the definition of what is privileged to be defined by Georgia state law. GA Code Sec. 24-12-21 says that one with information about HIV status cannot be “(b)e compelled by subpoena, court order, or other judicial process to disclose that information to another person or legal entity” with statutory exceptions existing for (1) government agencies or health care providers releasing/receiving information to counsel, test, diagnose or treat a person reasonably believed (or known) to be HIV-positive and (2) sexual partners or children of one who is HIV-positive. The court explained that these limited statutory exceptions mean that, like the present matter, “(n)one of these exceptions would permit disclosure of a person’s AIDS confidential information to third parties who are private litigants in a civil action.”
The court also clarified that information about HIV status means not just whether one is HIV-positive but also encompasses whether one has tested for HIV or AIDS, whether one is receiving treatment for HIV or AIDs, and even if one has simply been determined to be at risk of being infected with AIDs. Finally, the court concluded, if a trial court is considering a motion to compel for this aforementioned privileged information, “the statute requires that the person whose private information is sought will receive notice from the Court and an opportunity to be heard before any disclosure.”