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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.,

(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,

(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,

(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,

(App. Div.), certif.

denied,

(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,

(2017); Town of Kearny v. Brandt,

(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,

(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"),

(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.,

(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,

(2013). The other motion sought

5 Ferreira v. Rancocas Orthopedic Assocs.,

(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,

, 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

and Swan v. Boardwalk

Regency,

(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,

(1993) (citing

Ochs v. Federal Ins. Co.,

(1982)). They spare

10 A-1339-16T3 courts from litigating stale claims, penalize dilatoriness, and

serve as measures of repose. Farrell v. Votator Div.,

(1973); Rosenau v. City of New Brunswick,

(1968).

Actions for personal injuries must be commenced within two

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

Optics,

(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.,

(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

(two-year personal injury statute of limitations applied to claims under LAD); Labree v. Mobil Oil Corp.,

(App. Div.) (two-year personal injury statute of limitations applied to action for retaliatory discharge under Workers' Compensation Act), certif. denied,

(1997); Goncalvez v. Patuto,

(App. Div. 1983) (emotional distress claim subject to two-year personal injury statute of limitations); Heavner v. Uniroyal, Inc.,

(App. Div. 1972), aff'd

(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,

(Law Div. 1970) (claim for personal injuries under breach of warranty theory subject to two-year statute of limitations); Montgomery v. DeSimone,

, 126 n.4 (3d Cir. 1998) (civil rights claims under

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.

.

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.

. 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,

.

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.,

(Law Div. 1967).

In McGrogan v. Till,

(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

. 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.

at 291

(citing Heavner v. Uniroyal, Inc.,

(1973));

Brown v. N.J. Coll. of Med. & Dentistry,

(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.

. 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."

.

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.,

(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.,

(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,

(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,

, 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."

(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,

(1988) (quoting Bisbee v. John C.

Conover Agency,

(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

.

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."

.

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.,

(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.,

A-1339-16T3 3d 234 (1986). See also Covington v. The Houston Post,

(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

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,

, 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.'"

. 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"),

or six-year limitations period ("appropriation"),

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,

- 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,

(Law Div. 1991); see also Poff v.

Caro,

(Law. Div. 1987). LAD claims

are subject to the two-year statute of limitations.

.

The United States Constitution protects individuals from

governmental disclosure of their infection by the AIDS virus.

Doe v. Barrington,

(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.'"

Patients have a privacy right in

their medical records and medical information. United States v.

Westinghouse,

(3d Cir. 1980) (employee medical

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

re Search (Sealed),

(3d Cir.) (medical records

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

denied,

,

,

(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.

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

statute of limitations.

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

, 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

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.,

(2013)

(citing Abbamount v. Piscataway Twp. Bd. of Educ.,

,

431 (1990)) (involving the Conscientious Employee Protection

Act); Nini v. Mercer Cnty. Cmty. Coll.,

(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,

(1999) (quoting Peper v. Princeton

Univ. Bd. of Trs.,

(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.,

(Law Div. 1974), aff'd o.b.,

(App. Div. 1976), aff'd o.b.,

(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,

(2014).

HIPAA requires health care providers and health care

facilities to protect personal medical information from

unauthorized disclosure. See

(d)-6(a)(3);

Cmty. Hosp. Grp., supra,

. 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,

(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.,

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,

(Law Div. 1984).

[Behringer, supra,

.]

"The requirement of confidentiality is to protect the

patient."

. 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."

. 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,

(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.

.

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,

.]

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,

(2001); Troum,

28 A-1339-16T3 supra,

-16 (citing Vispisiano v. Ashland

Chem. Co.,

(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,

.

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

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

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

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