Anonymous, on Behalf of Himself and All Others Similarly Situated, Plaintiff,
CVS Corporation et al., Defendants.
Mintz Levin Cohn Ferris Glovsky & Popeo, P. C. (Michael S. Gardener and Kevin M. McGinty of counsel), for CVS Corporation
and another, defendants. Barry, McTiernan & Moore (Suzanne M. Halbardier of counsel), for Trio Drugs Corp. and another, defendants.
Levi Lubarsky & Feigenbaum, L. L. P. (Richard F. Lubarsky of counsel), for plaintiff.
Charles Edward Ramos, J.
Motion sequence Nos. 002 and 003 are hereby consolidated for purposes of disposition.
In this purported class action challenging the purchase and sale of customers' medical and prescription information without their knowledge or consent, defendants, CVS Corporation, CVS Columbus Place, L. L. C. (CVS), Trio Drugs Corp. (Trio Drugs), and Gerald Hinderstein (Hinderstein), seek dismissal of the complaint, pursuant to CPLR 3211 (a) (7), contending it fails to allege breach of a duty to keep patient prescription information confidential.
When defendants Trio Drugs, a local pharmacy, and its pharmacist, Hinderstein, decided to cease doing business in 1999, defendants CVS, a national drugstore chain, purchased Trio Drugs' records. Those records contained its customers' prescription records and medical profiles identifying, among other health-related information, any known allergies, chronic diseases, and drug reactions.  They are among many customer files which CVS has purchased through its " independent file buy program" (the File Buy Program). In 1998, under the File Buy Program, CVS acquired the customer files of approximately 350 independent pharmacies that ceased doing business. Plaintiff alleges that as a condition of the File Buy Program, CVS required Trio Drugs and other independent pharmacies participating in the Program to not give advance notice to their customers of the store closing or the transfer of the customer's medical profiles and prescription information.
Diagnosed with Human Immunodeficiency Virus (HIV) in 1986, and with Acquired Immune Deficiency Syndrome (AIDS) in 1989, plaintiff alleges that he selected Trio Drugs as his pharmacy based upon an expectation of privacy. For nearly 20
years, plaintiff allegedly used Trio Drugs, expecting it would keep all personal medical and prescription information confidential and not disclose it without his prior knowledge and consent. According to the complaint, plaintiff and the other customers of Trio Drugs were only told after the closing of Trio Drugs that their prescription and personal medication profiles were transferred to CVS.
Plaintiff commenced this action claiming much of the information from the prescription files that Trio and other independent pharmacies sold to CVS has been incorporated into the CVS computer data base. According to plaintiff, the data base is networked and accessible by CVS pharmacies nationwide. He further contends that his confidential information and that of the purported class members is accessible to tens of thousands of CVS store employees and the health care plans and managed care providers that contract with CVS.
Based upon these allegations, the complaint asserts that Trio Drugs violated a pharmacist's statutory and fiduciary duty of confidentiality, a violation which CVS aided and induced. Specifically, plaintiff claims that the transfer of a customer's HIV or AIDS related prescription and medical information is in violation of section 2782 (1) of the Public Health Law. Prescription and medical information unrelated to HIV or AIDS was allegedly transferred in violation of Public Health Law § 18 (6); 8 NYCRR 63.6 (a) (8); General Business Law § 349; and in breach of a pharmacist's common-law duties.
In seeking dismissal, defendants Trio Drugs and CVS assert that no duty of confidentiality exists, and if one does exist, they did not breach the duty by transferring the records of a discontinuing pharmacy to another licensed pharmacist or pharmacy. Defendants contend that the prescription records and medical profiles--which by statute pharmacists are required to maintain for five years--are the property of the pharmacy. They argue customers have no right to reclaim those records when a pharmacy ceases doing business. Relying on a statutory provision permitting the sale and transfer of prescription records, they further argue that discontinuing pharmacies are statutorily required to sell prescription records and profiles. Otherwise, according to defendants, discontinuing pharmacies would fail to comply with the five-year ...