JOHN SMITH VS. ARVIND R. DATLA, M.D.(L-1527-15, MERCER COUNTY AND STATEWIDE)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1339-16T3

JOHN SMITH, a fictitious

person,

APPROVED FOR PUBLICATION

Plaintiff-Respondent,

July 12, 2017

v. APPELLATE DIVISION

ARVIND R. DATLA, M.D. and

CONSULTANTS IN KIDNEY

DISEASES, P.A.,

Defendants-Appellants.

____________________________________

Argued May 8, 2017 – Decided July 12, 2017

Before Judges Sabatino, Haas and Geiger.

On appeal from an interlocutory order of the

Superior Court of New Jersey, Law Division,

Mercer County, Docket No. L-1527-15.

Mark A. Petraske argued the cause for

appellants (Buckley, Theroux, Kline &

Petraske, LLC, attorneys; Mr. Petraske and

Teresa C. Finnegan, on the briefs).

Craig J. Hubert argued the cause for

respondent (Szaferman, Lakind, Blumstein &

Blader, PC, attorneys; Mr. Hubert, of

counsel and on the brief; Keith L. Hovey and

Brandon C. Simmons, on the brief).

E. Drew Britcher argued the cause for amicus

curiae New Jersey Association for Justice

(Britcher Leone, LLC, attorneys; Mr.

Britcher, of counsel; Jessica E. Choper, on

the brief).

William H. Mergner, Jr. argued the cause for

amicus curiae New Jersey State Bar

Association (New Jersey State Bar

Association, attorneys; Thomas H. Prol,

President, of counsel; Mr. Mergner and Liana

M. Nobile, on the brief).

The opinion of the court was delivered by

GEIGER, J.S.C. (temporarily assigned).

This appeal raises the unresolved issue of what statute of

limitations applies to a common-law invasion of privacy claim

arising out of a defendant harmfully revealing private facts

about a plaintiff to a third party. It also raises the related

question of what limitations period applies to a statutory cause

of action for a defendant's improper disclosure of a plaintiff's

HIV-positive status1 committed in violation of the AIDS

Assistance Act (Act), N.J.S.A. 26:5C-1 to -14. The trial court

held that both such claims are subject to a two-year statute of

limitations. The trial court further ruled that plaintiff's

1

"'HIV' means the human immunodeficiency virus or any other

related virus identified as a probable causative agent of AIDS."

N.J.S.A. 26:5C-15. "AIDS" means acquired immune deficiency

syndrome. Ibid. "HIV-positive" means having a positive

reaction on a "HIV related test" used to detect "any virus,

antibody, antigen or etiologic agent thought to cause or to

indicate the presence of AIDS." N.J.S.A. 26:5C-5. "HIV-

positive" refers to an individual infected with HIV but not yet

having AIDS. See Troum v. Newark Beth Israel Med. Ctr., 338 N.J.

Super. 1, 6, 10, 14 (App. Div.) (explaining that HIV and AIDS

occur as a seamless progression of a single pathology, with HIV

as the infection and AIDS being the manifestation of the

disease), certif. denied, 168 N.J. 295 (2001).

2 A-1339-16T3

medical malpractice claim was also subject to a two-year statute

of limitations. We affirm.

This civil action seeks monetary damages and an award of

attorney's fees for invasion of privacy, violation of the Act,

and medical malpractice. The first legal issue presented by

this appeal is whether the tort of invasion of privacy by public

disclosure of private facts is an "injury to the person" barred

by the two-year limitation period set forth in N.J.S.A. 2A:14-2,

or instead by the one-year limitation period for defamation set

forth in N.J.S.A. 2A:14-3. The second legal issue is whether a

violation of the Act is subject to a one-year or two-year

limitation period. The third issue is whether a claim of

medical malpractice based upon the same wrongful public

disclosure of private medical facts is subject to a one-year or

two-year limitation period.

Before addressing these issues, we note the standard of

review that governs our analysis. Defendants moved to dismiss

the complaint under Rule 4:6-2(e) for "failure to state a claim

upon which relief may be granted." Because this appeal is from

the denial of such a dismissal motion, we must accept as true

plaintiff's version of the events. Rumbauskas v. Cantor, 138

N.J. 173, 175 (1994). Here, the issues raised by defendants do

3 A-1339-16T3

not involve a challenge to fact-finding on the part of the trial

court, but rather involve pure questions of law.

On appeal, we engage in a de novo review from a trial

court's decision to grant or deny a motion to dismiss filed

pursuant to Rule 4:6-2(e). Rezen Family Assoc., LP v. Borough

of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif.

denied, 208 N.J. 366 (2011). Moreover, when analyzing pure

questions of law raised in a dismissal motion, such as the

application of a statute of limitations, we undertake a de novo

review. See Royster v. N.J. State Police, 227 N.J. 482, 493

(2017); Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). A

"trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference." Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

I.

The limited record in this interlocutory appeal reflects

that plaintiff John Smith2 was a patient of defendant, Dr. Arvind

R. Datla, a board-certified nephrologist. Co-defendant,

Consultants in Kidney Diseases, PA, is a medical practice

employing or owned by Dr. Datla. Dr. Datla was treating

2

In order to protect his identity, plaintiff is identified

fictitiously as John Smith in the public pleadings.

4 A-1339-16T3

plaintiff for acute kidney failure. During an emergent bedside

consultation in plaintiff's private hospital room on July 25,

2013, Dr. Datla discussed with plaintiff his medical condition.

While doing so, Dr. Datla disclosed plaintiff's HIV-positive

status in the presence of an unidentified third party who was

also in the room.3 Plaintiff claims that Dr. Datla thereby

revealed his HIV-positive status to the third party without his

consent.

Plaintiff sued defendants, pleading various related

theories. In his original complaint, plaintiff alleged invasion

of privacy based on the inappropriate disclosure of private,

confidential medical information to a third-party without

plaintiff's consent, in violation of the Health Insurance

Portability and Accountability Act of 1996 ("HIPAA"), 13

U.S.C.A. § 1320 (count one).4 He also alleged medical

malpractice based on the inappropriate disclosure (count two).

Plaintiff further alleged that after the disclosure, Dr. Datla

attempted "to create a fraudulent ruse by which [Dr. Datla]

would allege in front of the unauthorized third party and

3

The record does not reveal the third party's identity or his or

her relationship to plaintiff.

4

HIPAA "concerns the protection of personal medical information

and regulates its use and disclosure by 'covered entities.'"

Cmty. Hosp. Grp., Inc. v. Blume Goldfadden Berkowitz Donnelly

Fried & Forte, P.C., 381 N.J. Super. 119, 125 (App. Div. 2005).

5 A-1339-16T3

plaintiff that the medical information that had been disclosed

referred, in fact, to a different patient."

Plaintiff filed his complaint on July 1, 2015, almost two

years after the July 25, 2013 disclosure event. Plaintiff

contends that the disclosure of his HIV-positive status by

defendant was negligent, careless, reckless, willful and wanton.

Plaintiff claims that the disclosure caused him to endure pain

and suffering, emotional distress, other emotional injuries and

insult, and permanent injury with physiological consequences.

In his answer, Dr. Datla identifies himself as a board-

certified specialist in nephrology and asserts that he was

practicing nephrology in this case. After a Ferriera5

conference, plaintiff produced an affidavit of merit (AOM) from

a board-certified specialist in internal medicine.

Prior to the filing of plaintiff's amended complaint,

defendants simultaneously filed two separate motions to dismiss

plaintiff's complaint. One motion sought dismissal of

plaintiff's medical malpractice claim (count two) on grounds

that an AOM by a physician who is not a board-certified

nephrologist violates the Patients First Act, N.J.S.A. 2A:53A-

27, N.J.S.A. 2A:53A-41, and the Court's holding in Nicholas v.

Mynster, 213 N.J. 463, 487 (2013). The other motion sought

5

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

6 A-1339-16T3

dismissal of plaintiff's invasion of privacy claim (count one)

on grounds that HIPAA does not provide for a private right of

action. The trial court denied each motion in separate orders

dated August 19, 2016. The judge found that because plaintiff's

medical malpractice claim did not involve Dr. Datla's specialty

as a nephrologist, an AOM by a board-certified internist was

sufficient. The judge further found that although there is no

private right of action under HIPAA6, plaintiff adequately

pleaded and could proceed under a common-law invasion of privacy

claim. Defendants did not move for leave to appeal either of

those orders.

On that same day, the trial court granted plaintiff leave

to amend his complaint. Plaintiff's amended complaint asserts

three causes of action: (1) invasion of privacy based on public

disclosure of private facts (count one); (2) medical malpractice

based on the improper disclosure (count two); and (3) violation

of the Act (count three). Plaintiff demands judgment for

compensatory damages, interest, attorney's fees, and costs of

suit, but he did not seek an award of punitive damages.

6

In Cmty Hosp. Grp., Inc., supra, 381 N.J. Super. at 126, we

held that a private right of action cannot be maintained under

HIPAA. Plaintiff, however, is no longer seeking relief under

HIPAA for defendants' alleged HIPAA violation.

7 A-1339-16T3

Subsequently, in September 2016, defendants filed a third

motion to dismiss the now-amended complaint, arguing that all

three claims were time-barred by a one-year statute of

limitations. Specifically, defendants argued that all three

claims were predicated on the public disclosure of private facts

and should be subject to the same statute of limitations.

Although New Jersey courts have not established a statute of

limitations for the public disclosure of private facts,

defendants analogized that type of invasion of privacy claim to

claims for placing plaintiff in a false light in the public eye

and defamation. Citing Rumbauskas, supra and Swan v. Boardwalk

Regency, 407 N.J. Super. 108 (App. Div. 2009), defendants

further argued that a one-year statute of limitations should

apply to all three counts because each count arose from the same

operative facts, albeit under different legal theories.

Plaintiff countered that he does not claim defamation, and that

the general two-year statute of limitations for personal injury

claims should apply to all three counts.

For purposes of their motion, defendants assumed that the

facts alleged in plaintiff's amended complaint were true.

Namely, they assumed that the unauthorized and improper

disclosure allegedly made by Dr. Datla in the presence of a

8 A-1339-16T3

third party that plaintiff was HIV-positive violated the Act,

and constituted invasion of privacy and medical malpractice.

Plaintiff concedes that, as his medical provider, Dr. Datla

lawfully possessed the confidential record that plaintiff was

HIV-positive. Plaintiff further concedes that the disclosure

that he was HIV-positive was truthful.

Defendants appeal from the October 19, 2016 order denying

their motion to dismiss. The judge held that a two-year statute

of limitations applied to all three counts. The judge focused

on the fact that the alleged harm resulted from the

dissemination of a truthful statement to a third party without

plaintiff's consent, rather than publication of a false

statement about plaintiff. In his oral decision, the judge

stated:

There are three separate claims here.

There's no doubt that there are three

separate claims but they arise from a common

core set of facts, which is the disclosure

of private information to the public.

The judge rejected the argument that the common set of facts

precluded different legal claims, concluding that "each claim

has different elements surrounding those common set of facts."

The judge found plaintiff's claims to be similar to an intrusion

claim. In describing defendants' conduct, the judge stated:

So it's not someone creating words or

creating a document, it's words or a

9 A-1339-16T3

document that was disclosed improperly, at

least that's the allegation. So it goes to

the issue of an intrusion [into] somebody's

private life.

The judge also held that plaintiff's malpractice claim was

subject to the two-year statute of limitations, as was his claim

under the Act because it was "a personal injury claim" that has

"an impact on the plaintiff's personhood."

We granted defendants' motion for leave to appeal the

October 19, 2016 order. On appeal, defendants raise the

following arguments: (1) the disclosure of private medical

information constitutes invasion of privacy; (2) New Jersey case

law imputes a one-year statute of limitations on invasion of

privacy claims based on words; (3) an invasion of privacy based

on public disclosure of private facts is directly analogous to

claims for placing plaintiff in a false light and defamation;

(4) claims for public disclosure of private facts are governed

by the one-year statute of limitations for defamation; and (5)

plaintiff's claim for public disclosure of private facts is

grossly dissimilar to invasion of privacy by intrusion.

II.

"Statutes of limitations are essentially equitable in

nature, promoting the timely and efficient litigation of

claims." Montells v. Haynes, 133 N.J. 282, 292 (1993) (citing

Ochs v. Federal Ins. Co., 90 N.J. 108 (1982)). They spare

10 A-1339-16T3

courts from litigating stale claims, penalize dilatoriness, and

serve as measures of repose. Farrell v. Votator Div., 62 N.J.

111, 115 (1973); Rosenau v. City of New Brunswick, 51 N.J. 130,

136 (1968).

Actions for personal injuries must be commenced within two

years after the cause of action accrues. Baird v. Am. Med.

Optics, 155 N.J. 54, 65 (1998) (citing N.J.S.A. 2A:14-2).

"Where the damages sought are for injuries to the person, the

applicable statute is [N.J.S.A. 2A:14-2] which fixes the period

of two years irrespective of the form of the action." Burns v.

Bethlehem Steel Co., 20 N.J. 37, 39-40 (1955) (two-year personal

injury statute of limitations applied to hearing loss claim of

third-party beneficiary of contract between union and employer).7

7

See also Montells, supra, 133 N.J. at 298 (two-year personal

injury statute of limitations applied to claims under LAD);

Labree v. Mobil Oil Corp., 300 N.J. Super. 234, 242-44 (App.

Div.) (two-year personal injury statute of limitations applied

to action for retaliatory discharge under Workers' Compensation

Act), certif. denied, 151 N.J. 465 (1997); Goncalvez v. Patuto,

188 N.J. Super. 620, 630 (App. Div. 1983) (emotional distress

claim subject to two-year personal injury statute of

limitations); Heavner v. Uniroyal, Inc., 118 N.J. Super. 116,

120 (App. Div. 1972), aff'd 63 N.J. 130 (1973) (claim arising

out of sales transaction was essentially a personal injury

action subject to the two-year statute of limitations); Atl.

City Hosp. v. Finkle, 110 N.J. Super. 435, 438 (Law Div. 1970)

(claim for personal injuries under breach of warranty theory

subject to two-year statute of limitations); Montgomery v.

DeSimone, 159 F.3d 120, 126 n.4 (3d Cir. 1998) (civil rights

claims under 42 U.S.C.A. § 1983 subject to New Jersey's two-year

statute of limitations for personal injury actions).

11 A-1339-16T3

Claims for defamation are subject to the one-year statute

of limitations imposed by N.J.S.A. 2A:14-3, and must be filed

within one year after the publication of the alleged libel or

slander. Rumbauskas, supra, 138 N.J. at 183.

The applicable statute of limitations for three of the four

types of invasion of privacy have already been determined by our

courts. Specifically, claims for invasion of privacy based on

intrusion on seclusion are subject to the two-year statute of

limitations imposed by N.J.S.A. 2A:14-2. Id. at 182. Claims

for invasion of privacy based on placing plaintiff in a false

light are subject to the one-year statute of limitations imposed

by N.J.S.A. 2A:14-3. Swan, supra, 407 N.J. Super. at 122-23.

Claims for invasion of privacy based on a person's name or

likeness are subject to the six-year statute of limitations

imposed by N.J.S.A. 2A:14-1. Canessa v. J.I. Kislak, Inc., 97

N.J. Super. 327, 355 (Law Div. 1967).

In McGrogan v. Till, 167 N.J. 414 (2001), the Court set

forth the test to be employed when determining the appropriate

statute of limitations to apply.

The holdings in Montells and Labree

recognize that in the analysis of which

statute of limitations period should apply

to a cause of action, the concept of "nature

of the injury" is not to be subjected to a

complaint-specific inquiry. The "nature of

the injury" is used to determine the "nature

of the cause of action" or the general

12 A-1339-16T3

characterization of that class of claims in

the aggregate. That analysis precedes

resolution of the question of which statute

of limitations applies to a type of cause of

action, and does not contemplate an analysis

of the specific complaint and the injuries

it happens to allege.

[Id. at 422-23.]

Consistent with other statutes such as the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the New Jersey

Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, we must then

look to the most analogous cause of action to determine the

appropriate statute of limitations. See Montells, supra, 133

N.J. at 291-92. In doing so, the focus is on the nature of the

injury, not the underlying legal theory of the claim when

determining which statute of limitations applies. Id. at 291

(citing Heavner v. Uniroyal, Inc., 63 N.J. 130, 145 (1973));

Brown v. N.J. Coll. of Med. & Dentistry, 167 N.J. Super. 532,

535 (Law Div. 1979).

In Montells, the Court held that a single statute of

limitations should apply to all LAD claims despite the varied

injuries and requested relief. Montells, supra, 133 N.J. at

291. The Court recognized that although LAD "vindicates

economic rights and some rights that sound in contract, the

statute strikes directly at conduct that injures the personhood

13 A-1339-16T3

of another. A discrimination claim cuts most deeply at the

personal level." Id. at 293.

While plaintiff's three causes of action arise out of the

same operative facts, those common facts can give rise to

different claims. See, e.g., Dairy Stores, Inc. v. Sentinel

Pub. Co., 104 N.J. 125, 133 (1986) (a statement about the poor

quality of a product implying that the seller is fraudulent may

be actionable under actions for defamation and product

disparagement, which stem from different branches of tort law);

Ramanadham v. N.J. Mfrs. Ins. Co., 188 N.J. Super. 30, 33 (App.

Div. 1982) (claims included breach of contract and violation of

the Consumer Fraud Act). By way of further example, a common

core of facts may give rise to an action against a nursing home

for negligence, breach of contract, consumer fraud, and

violations of federal mandates.

We will now analyze the applicable statute of limitations

for each of the three counts of the amended complaint.

III.

A. INVASION OF PRIVACY

Count one alleges an invasion of privacy by public

disclosure of private facts. Invasion of privacy

is not one tort, but a complex of four. The

law of privacy comprises four distinct kinds

of invasion of four different interests of

the plaintiff, which are tied together by

14 A-1339-16T3

the common name, but otherwise have almost

nothing in common except that each

represents an interference with the right of

the plaintiff to "be left alone."

[William L. Prosser, The Law of Torts § 112

(3d ed. 1964).]

The four classifications of "invasion of privacy" propounded by

Dean Prosser are:

(1) intrusion (e.g., intrusion on

plaintiff's physical solitude or seclusion,

as by invading his or her home, illegally

searching, eavesdropping, or prying into

personal affairs); (2) public disclosure of

private facts (e.g., making public private

information about plaintiff); (3) placing

plaintiff in a false light in the public eye

(which need not be defamatory, but must be

something that would be objectionable to the

ordinary reasonable person); and (4)

appropriation, for the defendant's benefit,

of the plaintiff's name or likeness.

[Rumbauskas, supra, 138 N.J. at 180 (citing

W. Page Keeton, et al., Prosser and Keeton

on the Law of Torts § 117 (5th ed. 1984)).]

Dean Prosser further noted:

It should be obvious at once that these four

types of invasion may be subject, in some

respects at least, to different rules; and

that when what is said as to any one of them

is carried over to another, it may not be at

all applicable, and confusion may follow.

[William L. Prosser, Privacy, 48 Cal. L.

Rev. 383, 389 (1960).]

"Prosser adds that almost all the confusion in the area is

caused by the failure to separate and distinguish the four forms

15 A-1339-16T3

of invasion of privacy and to realize that they call for

different treatment." Rumbauskas, supra, 138 N.J. at 180

(citing Privacy, supra, 48 Cal. L. Rev. at 407).

In contrast to invasion of privacy torts involving

appropriation or false light, the tort of "invasion of privacy

by unreasonable publication of private facts occurs when it is

shown that 'the matters revealed were actually private, that

dissemination of such facts would be offensive to a reasonable

person, and that there is no legitimate interest of the public

in being apprised of the facts publicized.'" Romaine v.

Kallinger, 109 N.J. 282, 297 (1988) (quoting Bisbee v. John C.

Conover Agency, 186 N.J. Super. 335, 340 (App. Div. 1982)). We

determine that the defendants' unauthorized disclosure of

plaintiff's HIV-positive status falls within the second type of

invasion of privacy: public disclosure of private facts.

We find no binding precedent determining the appropriate

statute of limitations to apply to claims for invasion of

privacy based on improper disclosure of private facts.

The pivotal question becomes whether plaintiff's injuries

for invasion of privacy is more like an "injury to the person"

under N.J.S.A. 2A:14-2(a), as to which a two-year statute of

limitation applies, or like injuries for defamation under

16 A-1339-16T3

N.J.S.A. 2A:14-3, as to which the one-year statute of limitation

applies. See Montells, supra, 133 N.J. at 291.

In Rumbauskas, a victim of stalking and death threats

brought an action for invasion of privacy claiming intrusion on

seclusion. The Court held that such an action "constitutes a

claim for 'injury to the person' of the plaintiff and is

governed by the two-year statute of limitations set forth in

N.J.S.A. 2A:14-2," because the "defendant's conduct struck

directly at the personhood of plaintiff" and "cuts most deeply

at the personal level." Rumbauskas, supra, 138 N.J. at 182.

In its analysis, the Supreme Court discussed the difficulty

in determining the statute of limitations applicable to false

light claims:

Jurisdictions throughout the country have

struggled with the classification of actions

for invasion of privacy. One of the most

familiar difficulties is determining whether

placing one in a false-light in the public

eye should be regarded as defamatory in

nature, thereby subjecting causes of action

to the specific statutes of limitations

applicable to defamation claims. For

example, because of the inherent

similarities between false-light and

defamation claims, the Supreme Court of

Washington concluded that the same statute

of limitations applies to both types of

claims. Eastwood v. Cascade Broadcasting

Co., 106 Wash. 2d 466 (1986). Similarly, the

Supreme Court of California recognized the

inherent similarities between false light

invasion of privacy and defamation in

Fellows v. National Enquirer, Inc., 42 Cal.

17 A-1339-16T3

3d 234 (1986). See also Covington v. The

Houston Post, 743 S.W. 2d 345, 348 (Tex. Ct.

App. 1987) (holding that personal injury

statute of limitations applied to false

light defamation).

[Id. at 180-81.]

After confirming that "[t]he limitations periods applicable

to actions involving other types of invasion of privacy [i.e.,

not involuntary stalkings or threats of violence] are not before

us[,]" id. at 183 (emphasis added), the Court stated in dicta:

Invasion-of-privacy actions based on

appropriation remain governed by the six-

year statute of limitations period set forth

in N.J.S.A. 2A:14-1. See Canessa, supra, 97

N.J. Super. at [355]. Regarding actions for

public disclosure of private facts or

placing one in a false light, case law in

other jurisdictions indicates that such

actions are subject to the limitations

period for defamation claims, which is one

year in New Jersey. N.J.S.A. 2A:14-3.

[Ibid. (emphasis added).]

In Swan, supra, 407 N.J. Super. at 122-23, we held that

plaintiff's false light invasion of privacy claim was subject to

the one-year statute of limitations for defamation actions

imposed by N.J.S.A. 2A:14-3. In reaching that decision, we

noted that the motion judge found that plaintiff's false light

claim "was similar to defamation in that it 'subject[ed] the

victim to the consequences of defamation without the explicit

nature of the claim.'" Id. at 121. We then emphasized:

18 A-1339-16T3

Based on our analysis of the record and the

applicable law, we, too, are persuaded that

the nature of plaintiff's invasion of

privacy claim is essentially one of

defamation, and [based on the facts

presented] that the type of alleged

objectionable conduct by defendant is

dissimilar to that giving rise to the two-

year statute of limitations ("intrusion on

seclusion"), Rumbauskas, supra, or six-year

limitations period ("appropriation"),

Canessa, supra. After considering Dean

Prosser's analysis and its review of the

case law in New Jersey and other

jurisdictions, the Rumbauskas Court was

clearly of the opinion that different

statutes of limitations would apply

depending on the actual nature of the

"invasion of privacy" claim. The Court

quoted approvingly of decisions in other

jurisdictions that applied the same statute

of limitations to false light and defamation

claims, Rumbauskas, supra, 138 N.J. at 180-

82, giving the reader every reason to

believe that although the Court did not have

to reach the issue, it also would conclude

that the one-year statute of limitations

governing defamation actions would be

applied in a "false light" action that was

clearly grounded in allegations which were

defamatory in nature.

. . . .

Neither law nor logic justifies why Count

Two of plaintiff's complaint labelled

"Defamation" should be subject to a one-year

statute of limitations while the same claims

re-labelled "False Light/Invasion of

Privacy" in Count Three should be governed

by a longer limitations period.

[Id. at 121-23 (emphasis added).]

19 A-1339-16T3

Defendants argue that plaintiff's invasion of privacy claim

is based on words rather than intrusive conduct, and, therefore,

are analogous to placing plaintiff in a false light and

defamation, thus subjecting plaintiff's claims to a one-year

statute of limitations. We disagree.

Unlike a typical defamation claim, the confidential

information allegedly disclosed by Dr. Datla to a third person

was true, not false. The disclosed medical information did not

place plaintiff in a false light. Here, plaintiff does not

allege and did not plead defamation. He does not claim that the

disclosure that he was HIV-positive was false or placed him in a

false light.

The LAD prohibits discrimination based on an individual's

disability, including their HIV/AIDS status. N.J.S.A. 10:5-

5(q). See Estate of Behringer v. The Med. Ctr. at Princeton,

249 N.J. Super. 597, 642-44 (Law Div. 1991); see also Poff v.

Caro, 228 N.J. Super. 370, 376-78 (Law. Div. 1987). LAD claims

are subject to the two-year statute of limitations. Montells,

supra, 133 N.J. at 298.

The United States Constitution protects individuals from

governmental disclosure of their infection by the AIDS virus.

Doe v. Barrington, 729 F. Supp. 376, 382 (D.N.J. 1990).

"Disclosure of a family member's medical condition, especially

20 A-1339-16T3

exposure to or infection with the AIDS virus is a disclosure of

a 'personal matter.'" Ibid. Patients have a privacy right in

their medical records and medical information. United States v.

Westinghouse, 638 F.2d 570, 577 (3d Cir. 1980) (employee medical

records clearly within zone of privacy protection); see also In

re Search (Sealed), 810 F.2d 67, 71 (3d Cir.) (medical records

clearly within constitutional sphere of right to privacy), cert.

denied, 483 U.S. 1007, 107 S. Ct. 3233, 87 L. Ed. 2d 739 (1987).

The heightened privacy interest of an individual's HIV-positive

status rises to a constitutional dimension when the improper

disclosure of that information is committed by a law enforcement

officer acting under color of law, subjecting the officer to

liability under Section 1983 for violating the individual's

constitutional right to privacy. Doe, supra, 729 F. Supp. at

385. Claims under Section 1983 are subject to a two-year

statute of limitations. Montgomery, supra, 159 F.3d at 126 n.4.

We find that claims for unauthorized disclosure of a

person's HIV-positive status align more closely with

discrimination claims based on improper disclosure of an

individual's HIV/AIDS status brought under LAD, NJCRA, and

Section 1983, all of which are subject to a two-year statute of

limitations.

21 A-1339-16T3

We further find that claims for unauthorized disclosure of

a person's HIV-positive status also more closely align to an

intrusion on plaintiff's solitude or seclusion than defamation

or invasion of privacy by placing plaintiff in a false light.

In that regard, we note that a false light claim involves the

publication of misleading information and is akin to defamation.

Defendants' conduct did not involve publishing false or

misleading statements about plaintiff. The Court's dictum in

Rumbauskas, supra, 138 N.J. at 183, observing that "case law in

other jurisdictions" applies the same limitations period for

false light claims as for tortious disclosure of private facts,

does not require such equivalency in our State, especially given

the type of claim that has been factually presented here.

Accordingly, we hold that plaintiff's claim for invasion of

privacy by public disclosure of private facts is subject to the

two-year statute of limitations imposed by N.J.S.A. 2A:14-2.

B. THE ACT

The Act provides that a record maintained by a health care

provider, health care facility, or laboratory, "which contains

identifying information about a person who has or is suspected

of having AIDS or HIV infection is confidential and shall be

disclosed only for the purposes authorized by [the Act]."

N.J.S.A. 26:5C-7. Contents of such confidential records may be

22 A-1339-16T3

disclosed without the "prior written informed consent" of the

person who is the subject of the confidential record only under

limited circumstances. N.J.S.A. 26:5C-8 to -13. "Any record

disclosed under [the Act] shall be held confidential by the

recipient of the record and shall not be released unless the

conditions of [the Act] are met." N.J.S.A. 26:5C-11.

The Act provides for a private right of action and a wide-

range of relief for the improper disclosure of a person's HIV-

positive status:

A person who has or is suspected of having

AIDS or HIV infection who is aggrieved as a

result of the violation of this act may

commence a civil action against the

individual or institution who committed the

violation to obtain appropriate relief,

including actual damages, equitable relief

and reasonable attorney's fees and court

costs. Punitive damages may be awarded when

the violation evidences wantonly reckless or

intentionally malicious conduct by the

person or institution who committed the

violation.

[N.J.S.A. 26:5C-14(a).]

"Each disclosure" made in violation of the Act "is a separate

and actionable offense." N.J.S.A. 26:5C-14(b).

In order to recover for a violation of the Act, plaintiff

must prove that defendants failed to maintain the

confidentiality of his medical records, which disclosed his HIV-

positive status without his prior written informed consent.

23 A-1339-16T3

N.J.S.A. 26:5C-8; see Behringer, supra, 249 N.J. Super. at 634

n.11.

The Act is a remedial statute that promotes a strong public

policy of the State and, therefore, should be construed

liberally to effectuate its important social goal. See

Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 555 (2013)

(citing Abbamount v. Piscataway Twp. Bd. of Educ., 138 N.J. 405,

431 (1990)) (involving the Conscientious Employee Protection

Act); Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 108-09

(2001) (involving the Law Against Discrimination). Because it

is remedial in nature, the Act must be applied "to the full

extent of its facial coverage." See Bergen Commercial Bank v.

Sisler, 157 N.J. 188, 216 (1999) (quoting Peper v. Princeton

Univ. Bd. of Trs., 77 N.J. 55, 68 (1978)).

Notably, the Act does not contain a statute of limitations.

We find no published opinion determining the appropriate statute

of limitations to apply to the Act.

We further note that defamation claims are subject to the

single publication rule. Barres v. Holt, Rinehart & Winston,

Inc., 131 N.J. Super. 371 (Law Div. 1974), aff'd o.b., 141 N.J.

Super. 563 (App. Div. 1976), aff'd o.b., 74 N.J. 461 (1977). In

Barres, the court found that the reasons underlying the single

publication rule are consistent with the Legislature's

24 A-1339-16T3

determination to impose a short, one-year period of limitation

for libel. Id. at 387. In stark contrast, each disclosure made

in violation of the Act is a separate and actionable offense.

N.J.S.A. 26:5C-14(b).

In addition, in contrast to a defamation claim where a

lawsuit provides the opportunity for the defamed person to

vindicate his or her reputation, the profound damage that can

result from an unauthorized disclosure of an individual's HIV-

positive status cannot be adequately remedied by ordinary

damages for reputational harm recoverable in a defamation

lawsuit. Thus, the Act provides for the right to recover actual

damages, equitable relief, punitive damages, and attorney's

fees. N.J.S.A. 26:5C-14(a). Moreover, the interest protected

by the Act is not the reputation of the HIV-positive individual,

but instead that person's right to control access to his or her

private medical information.

Plaintiff's claim for violation of the Act is most

analogous to the category of invasion of privacy claims that are

grounded on an allegation that defendant improperly disclosed

private facts concerning the plaintiff to a third party.

Accordingly, for the reasons set forth above, we hold that

plaintiff's claim for violation of the Act is subject to the

two-year statute of limitations imposed by N.J.S.A. 2A:14-2.

25 A-1339-16T3

C. MEDICAL MALPRACTICE

"In a medical-malpractice action, the plaintiff has the

burden of proving the relevant standard of care governing the

defendant-doctor, a deviation from that standard, an injury

proximately caused by the deviation, and damages suffered from

the defendant-doctor's negligence." Komodi v. Picciano, 217

N.J. 387, 409 (2014).

HIPAA requires health care providers and health care

facilities to protect personal medical information from

unauthorized disclosure. See 42 U.S.C.A. § 1320(d)-6(a)(3);

Cmty. Hosp. Grp., supra, 381 N.J. Super. at 125. Health care

providers and health care facilities are also required by the

Act to maintain the confidentiality of medical records

containing "identifying information about a person who has or is

suspected of having AIDS or HIV infection[.]" N.J.S.A. 26:5C-7.

Aside from the confidentiality requirements imposed by the

Act and HIPPA, physicians are also under a common law duty to

maintain the confidentiality of patient records and information.

The physician-patient privilege has a strong

tradition in New Jersey. The privilege

imposes an obligation on the physician to

maintain the confidentiality of a patient's

communications. Stempler v. Speidell, 100

N.J. 368 (1985). This obligation of

confidentiality applies to patient records

and information and applies not only to

physicians but to hospitals as well. Unick

v. Kessler Memorial Hosp., 107 N.J. Super.

26 A-1339-16T3

121 (Law Div. 1969). This duty of

confidentiality has been the subject of

legislative codification, which reflects the

public policy of this State. N.J.S.A.

2A:84A-22.1 et seq. The patient must be

able "to secure medical services without

fear of betrayal and unwarranted

embarrassment and detrimental disclosure. .

. ." Piller v. Kovarsky, 194 N.J. Super.

392, 396 (Law Div. 1984).

[Behringer, supra, 249 N.J. Super. at 632.]

"The requirement of confidentiality is to protect the

patient." Id. at 638. Indeed, the purpose of the patient-

physician privilege is to enable the patient to secure medical

services without fear of unwarranted detrimental disclosure of

information "which might deter him from revealing his symptoms

to a doctor to the detriment of his health." Piller, supra, 194

N.J. Super. at 396. The Hospital Patients Bill of Rights Act

incorporates the privilege and protects the right of hospital

patients to privacy and confidentiality of their medical records

to the extent consistent with providing adequate medical care.

N.J.S.A. 26:2H-12.8(f), (g); Kinsella v. N.Y.T. Television, 382

N.J. Super. 102, 107 (App. Div. 2005).

In Behringer, the court held that a medical center's

failure to take such reasonable measures as are necessary to

ensure confidentiality of HIV test results was a breach of the

duty and obligation to keep such records confidential, rendering

27 A-1339-16T3

the medical center liable for damages caused by this negligent

breach. Behringer, supra, 249 N.J. Super. at 638, 641-42.

Medical records revealing a patient's HIV-positive status

are afforded heightened confidentiality.

The sensitive nature of medical information

about AIDS makes a compelling argument for

keeping this information confidential.

Society's moral judgments about the high-

risk activities associated with the disease,

including sexual relations and drug use,

make the information of the most personal

kind. Also, the privacy interest in one's

exposure to the AIDS virus is even greater

than one's privacy interest in ordinary

medical records because of the stigma that

attaches with the disease. The potential

for harm in the event of a nonconsensual

disclosure is substantial; plaintiff's brief

details the stigma and harassment that comes

with public knowledge of one's affliction

with AIDS.

[Doe, supra, 729 F. Supp. at 384.]

Defendants argue that because plaintiff's claim for medical

malpractice arises out of the same operative facts as his claim

for invasion of privacy, they are subject to the same one-year

statute of limitation. We disagree.

Subject to the application of the discovery rule, claims

for medical malpractice are generally subject to the two-year

statute of limitations imposed by N.J.S.A. 2A:14-2, and must be

filed within two years of the accrual of the cause of action.

Caravaggio v. D'Agostini, 166 N.J. 237, 244-46 (2001); Troum,

28 A-1339-16T3

supra, 338 N.J. Super. at 15-16 (citing Vispisiano v. Ashland

Chem. Co., 107 N.J. 416, 426-27 (1987)).

The breach of a physician's duty to maintain the

confidentiality of his patient's medical records is a deviation

from the standard of care, giving rise to a personal injury

claim based upon negligence, not defamation or placing plaintiff

in a false light.

In addition, plaintiff's claim for medical malpractice is

most analogous to the category of invasion of privacy claims

that are grounded on an allegation that defendant improperly

disclosed private facts concerning the plaintiff to a third

party.

For these reasons, we hold that plaintiff's medical

malpractice claim asserted in count two is subject to the two-

year statute of limitations imposed by N.J.S.A. 2A:14-2.

IV.

In summary, viewing the pleaded facts in a light most

favorable to plaintiff, we find the improper disclosure of

plaintiff's HIV-positive status to a third-party without

plaintiff's prior informed consent to constitute a violation of

the Act, an invasion of privacy by public disclosure of private

facts, and medical malpractice. Regardless of the tort

specifically pled, defendant's conduct "struck directly at the

29 A-1339-16T3

personhood of plaintiff." Rambauskaus, supra, 138 N.J. at 182.

Here, like the claims in Montells and Rambauskaus, defendant's

conduct "cuts most deeply at the personal level." See ibid.

Accordingly, we hold that an action for invasion of privacy by

public disclosure of private facts that is premised on conduct

such as the unauthorized disclosure of plaintiff's HIV-positive

status present here constitutes a claim for "injury to the

person" of the plaintiff and is governed by the two-year statute

of limitations set forth in N.J.S.A. 2A:14-2. See ibid. We

further hold that plaintiff's claims for medical malpractice and

violation of the Act, which arise from the same operative facts,

are likewise governed by the two-year statute of limitations set

forth in N.J.S.A. 2A:14-2.

Accordingly, we affirm the trial court's order denying

defendants' motion to dismiss plaintiff's amended complaint.8

8

Given that plaintiff's counsel has clarified to us that his

client's claims solely involve defendants' wrongful disclosure

of truthful facts, we need not address or resolve here what

statute(s) of limitations would apply to a defendant's "mixed"

statement that contains both truthful and false elements. For

example, a simple version of such a mixed statement might be, "P

has AIDS," if it truthfully revealed that P is HIV-positive but

falsely asserted that P has contracted AIDS. The statement's

truthful aspect could comprise the tort of invasion of privacy

by disclosure, while the false aspect could be regarded as libel

or slander. We leave for a future day the resolution of whether

such harmful speech, with mixed components of truth and falsity,

would trigger a two-year statute of limitations, a one-year

period, or both.

30 A-1339-16T3

Affirmed.

31 A-1339-16T3