Should your career choice affect your right to maintain the privacy of your medical records? In a recent case involving an adult film actor, the California Division of Occupational Safety and Health (Cal/OSHA) unequivocally said “yes.” The case involves an adult film actor, identified as “Patient Zero,” who tested positive for HIV. Cal/OSHA, demanding access to Patient Zero’s medical records, argued that a former adult film performer “traded in whatever privacy rights [the actor] may have had in exchange for working in adult films.”
Actors in the straight pornography film industry, which is centered in Los Angeles, are tested for HIV and other sexually transmitted diseases every 30 days at the Adult Industry Medical (AIM) Health Foundation. If the tests are negative, the performer’s name is entered into a database that agents and producers use to confirm the performer’s eligibility to work.
Patient Zero, new to the industry, tested negative and performed in two movies. Just over 30 days after the first test, Patient Zero obtained a second test. The next day, Patient Zero arrived on the set of a new film. The director informed Patient Zero that he was unable to confirm a recent test result in AIM’s database, but that if the other actor agreed, Patient Zero could perform anyway. The sole other performer consented.
The next day, AIM requested that Patient Zero return to AIM for retesting. When Patient Zero arrived at AIM’s offices, Patient Zero was told that the most recent test had returned a preliminary positive result. In response to press reports, Cal/OSHA subpoenaed AIM to release Patient Zero’s identity and test records, a demand that violates both state law and Patient Zero’s constitutional right to privacy.
In briefing in the case, Cal/OSHA has refused to recognize Patient Zero’s legitimate privacy interests, arguing that there is “no ‘social norm’” protecting a person’s privacy in their HIV testing or results. At a recent hearing, the court rebuffed this argument, stating, "I can't think of a bit of information that is more strongly protected than HIV."
“The position Cal/OSHA is taking, and we’re strongly combating, is that there is no interest in the privacy of information about HIV testing,” says Jennifer Brockett, a litigator in our Los Angeles office who is co-counsel for Patient Zero with ACLU attorneys Peter Eliasberg and Elizabeth Gill. Associate Aleah Yung is also assisting with the case.
After confirming that Patient Zero was HIV-positive, AIM was required by law to report the performer’s status to the LA County Department of Health. The health department subsequently left a letter at Patient Zero’s door, with information about the HIV-positive status, that could have been seen by anyone. “In addition to the fact that this was another potential breach of privacy law,” says Brockett, “Patient Zero felt harassed by government agencies.” It is worth noting, though, that no one has contracted HIV from Patient Zero.
The ACLU stepped in with a temporary restraining order and a preliminary injunction to prevent Cal/OSHA from getting further information about Patient Zero’s identification. For its part, Cal/OSHA has admitted that it cannot cite Patient Zero’s employer, but it continues to pursue the case, calling Patient Zero “a health hazard.”
The real health hazard, Brockett and the other attorneys maintain, is that people will be deterred by fear of government intrusion from obtaining HIV testing. “We want to encourage every effort to get people tested,” says Brockett.
Patient Zero is now awaiting the court’s final ruling.
Back to the spring 2011 DWT Pro Bono Report