In this case of first impression, the majority holds that a wife who sues her husband claiming that he negligently infected her with the human immunodeficiency virus (HIV) is not limited to a theory that he did so knowing he was HIV positive but that liability also extends “to those situations where the actor, under the totality of circumstances, has reason to know of the infection.” (Maj. opn., ante, at p. 1191.) According to the majority, reason to know exists “when there is sufficient information to cause a reasonably intelligent actor to infer he or she is infected with the virus or that infection is so highly probable that his or her conduct would be predicated on that assumption.” (Id. at p. 1192.) Based on these conclusions, the majority authorizes broad discovery into defendant’s sexual history.
I dissent. While I agree that a defendant who knows that he or she is infected with HIV and conceals that fact from a partner with whom the defendant has unprotected sex may be held liable for negligently transmitting the virus, I do not agree, for the reasons set forth below, that such liability may be predicated on a later finding by a trier of fact that the defendant had reason to know that he or she was infected with HIV. In this case, therefore, I would hold that plaintiff is entitled to discovery directed at whether and when defendant had actual knowledge he was HIV positive, but not to discovery of defendant’s sexual history.
Whether particular information is discoverable necessarily depends on whether there is a cause of action as to which that discovery is either relevant *1213or “ ‘reasonably calculated to reveal admissible evidence.’ ” (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711 [21 Cal.Rptr.2d 200, 854 P.2d 1117].) The majority acknowledges that “[t]his court has not yet had occasion to consider the tort of negligent transmission of a sexually transmitted disease” but concludes “the tort is far from novel,” citing two California Court of Appeal decisions and a number of decisions from our sister jurisdictions. (Maj. opn., ante, at p. 1188.) The majority thus implies that the creation of a cause of action for negligent transmission of HIV based on a constructive knowledge standard is simply a logical extension of existing precedent. Not so.
Neither of the Court of Appeal decisions cited by the majority supports its expansion of the law. In Kathleen K. v. Robert B. (1984) 150 Cal.App.3d 992 [198 Cal.Rptr. 273], the plaintiff alleged she had contracted genital herpes from the defendant. Judgment was rendered in the defendant’s favor. On review, the Court of Appeal noted that the plaintiff’s negligence claim included a constructive knowledge allegation that, because the appeal was from a judgment on the pleadings, the court “accepted as true.” (Id. at p. 994.) The court rejected claims by the defendant that the plaintiff’s complaint was barred by either the right of privacy or the anti-heart-balm statute (Civ. Code, § 43.5, subd. (c)), and reversed the judgment. (Kathleen K., supra, 150 Cal.App.3d at pp. 996-998.) Because the court had no occasion to decide whether negligent transmission of a sexually transmitted disease must be based on an actual knowledge standard only or if it can also be based on constructive knowledge, Kathleen K. is not authority for the proposition that a constructive knowledge standard will suffice. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343 [14 Cal.Rptr.3d 857, 92 P.3d 350] [“A decision, of course, does not stand for a proposition not considered by the court”].)
Doe v. Roe (1990) 218 Cal.App.3d 1538 [267 Cal.Rptr. 564] lends even less support for the majority’s conclusion because in that case, which also involved transmission of herpes, it was undisputed that the defendant had actual knowledge he was infected was herpes, and had had several prior outbreaks, but “believed that he could not transmit it to [the plaintiff] as long as he was symptom-free.” (Id. at p. 1541.) In affirming judgment for the plaintiff, the court emphasized that the “defendant admittedly had actual knowledge that herpes was sexually transmissible .... Having discovered that he had a venereal disease, defendant did nothing.” (Id. at p. 1546.)
In the absence of support in California law for its conclusion that a constructive knowledge standard will support the negligent transmission of HTV, the majority relies on a spate of decisions from other jurisdictions. (Meany v. Meany (La. 1994) 639 So.2d 229 [herpes]; Berner v. Caldwell (Ala. 1989) 543 So.2d 686 [same]; Hamblen v. Davidson (Tenn.Ct.App. 2000) *121450 S.W.3d 433 [same]; Deuschle v. Jobe (Mo.Ct.App. 2000) 30 S.W.3d 215 [same]; M.M.D. v. B.L.G (Minn.Ct.App. 1991) 467 N.W.2d 645 [same]; McPherson v. McPherson (1998) 1998 ME 141 [712 A.2d 1043] [human papilloma virus (HPV)]; Mussivand v. David (1989) 45 Ohio St.3d 314 [544 N.E.2d 265] [transmission of unspecified sexual disease].) While these decisions do recognize a claim for negligent transmission of a sexually transmitted disease based on actual or constructive knowledge, only one of them, Doe v. Johnson (W.D.Mich. 1993) 817 F.Supp. 1382, involves the transmission of HIV; the others, as noted above, involve herpes, HPV, or an unspecified disease.1
As I shall explain, the distinction between HIV and other sexually transmitted diseases is crucial when discussing the wisdom of creating a cause of action for negligent transmission based on constructive knowledge. Contrary to the majority’s analysis, creation of such a tort for HIV is not a simple extension of existing California law, nor has any other state created such a cause of action.2 It must be clearly understood, therefore, that in creating this cause of action the majority ventures into largely uncharted waters.
This expansion of the law cannot be justified by the majority’s application of the Rowland factors (Rowland v. Christian (1969) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561]) because its analysis proceeds from an a priori assumption that constructive knowledge is a viable theory upon which to base a claim for negligent transmission of HIV. Rather, in deciding whether to create this cause of action, the analysis must begin with the relevant policy considerations. (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 446-447 [138 Cal.Rptr. 302, 563 P.2d 858] [“ ‘In delineating the extent of a tortfeasor’s responsibility for damages under the general rule of tort liability (Civ. Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political’ ”]; *1215Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912] [“ ‘ “duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection’ ”].)
Accordingly, the question before this court is whether creation of a cause of action for negligent transmission of HIV—and not some other sexually transmitted disease—based on a constructive knowledge standard will serve the relevant policy considerations associated with the fight against the AIDS epidemic. I believe the answer is no.
To begin with, the majority fails even to recognize the relevant policy considerations associated with the AIDS epidemic because the majority assumes that AIDS is the same as other sexually transmitted diseases and the same analytic framework can be applied to the negligent transmission of HIV as is applied to other sexually transmitted diseases (see maj. opn., ante, at p. 1193). This is inaccurate. Unlike other sexually transmitted diseases HIV infection has been, and continues to be, life-threatening “killing over half a million Americans as of the end of 2003.” (Maj. opn., ante, at p. 1195.) There are also significant medical differences between these other sexually transmitted diseases and HIV infection. HIV infection can remain latent for years before the appearance of any kind of symptom, unlike other sexually transmitted diseases and, unlike symptoms associated with other sexually transmitted diseases, the symptoms of AIDS-related disease, because they are generally nonspecific to AIDS, may not necessarily alert a person to the fact that he or she is HIV positive. (U.S. Dept, of Health & Human Services, Centers for Disease Control and Prevention (CDC), HIV/AIDS Prevention in the United States FAQ: How can I tell if I’m infected with HIV?, at <http://www.cdc.gov/hiv/pubs/faq/faq5.htm> [as of July 3, 2006] [“The only way to know if you are infected is to be tested for HIV infection. You cannot rely on symptoms to know whether or not you are infected. Many people who are infected with HIV do not have any symptoms at all for many years. . . . [][]... [][] The symptoms of AIDS are similar to the symptoms of many other illnesses”] (boldface omitted).) Finally, AIDS is unique in the opprobrium with which those infected with HIV are viewed in part because one of the populations most at risk has been traditionally stigmatized on the basis of sexual orientation. (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1140 [277 Cal.Rptr. 354] [HIV-positive status “is ordinarily associated either with sexual preference or intravenous drug uses. It ought not to be, but quite commonly is, viewed with mistrust or opprobrium”]; Herbert v. Regents of University of California (1994) 26 Cal.App.4th 782, 788 [31 Cal.Rptr.2d 709] [“ ‘Public speculation about the potential for transmission of [the AIDS] virus, the degree of morbidity, and other factors, has led to expression of public fears or anxieties approaching, in some circumstances, panic or hysteria’ ”]; see CDC, HIV/AIDS Prevention in the United *1216States, Basic Prevention, Fact Sheet, A Glance at the HIV/AIDS Epidemic <http://www.cdc.gov/hiv/resources/factsheets/At-A-Glance.htm> [as of July 3, 2006] [“In 2004, the largest estimated proportion of HIV/AIDS diagnoses were for men who have sex with men (MSM), followed by adults and adolescents infected through heterosexual contact”].)
The convergence of these three factors: the potential deadliness of HIV infection, the possibility that a person may be unknowingly infected with HIV for years, and the opprobrium to which those who are infected have been subjected, distinguishes HIV/AIDS from all other sexually transmitted diseases. Thus the battle to contain the transmission of HTV raises complex questions of public and public health policy not present with respect to other sexually transmitted diseases. Some of these questions are: What is the best way to promote testing for HIV given that testing is the only way to definitively determine HIV status? How can transmission of the virus be contained in light of the long period of latency and the absence of specific recognizable symptoms? How should prevention measures be balanced against the right of privacy in sexual matters? How can a policy promoting testing and preventing transmission be crafted so as to prevent discrimination against those infected with HIV and stigmatization of populations vulnerable to infection?
These are the questions this court should be considering before rushing into the complex terrain that constitutes AIDS policy. The majority has failed to adequately and persuasively address these difficult issues. Equally glaring is the majority’s failure to adequately consider the Legislature’s response to these questions because, for the last two decades, the Legislature has been the body responsible for setting AIDS policy in California through its enactment of a comprehensive system of AIDS-related statutes. (See Cal. Dept. of Health Services, Off. of AIDS, A Brief Guide to Cal.’s HIV/AIDS Laws, 2004 (Feb. 2005).)3
*1217The Legislature’s response to those policy questions I posed earlier has been to enact laws that encourage voluntary testing and voluntary disclosure of HIV status, promote initiatives to educate sexually active Californians about how to protect themselves against HIV infection, and guard against any tendency to conflate transmission of the virus with sexual orientation. Crucial to these policy goals is the requirement that HIV testing and test results be absolutely confidential. The guarantee of confidentiality is so important to the Legislature’s efforts that unauthorized disclosure of another person’s HIV test results may be punishable by fines and even imprisonment. (Health & Saf. Code, § 120980.)4
The Legislature’s concern for confidentiality specifically extends to prohibiting unauthorized disclosure of an individual’s HIV test results in civil discovery proceedings. Health and Safety Code section 120975 provides that to “protect the privacy of individuals who are the subject of blood testing for antibodies to human immunodeficiency virus . . . : [f] . . . no person shall be compelled in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings to identify or provide identifying characteristics that would identify any individual who is the subject” of an HIV test. (Health & Saf. Code, § 120975, italics added.)
Irwin Memorial Blood Centers v. Superior Court (1991) 229 Cal.App.3d 151 [279 Cal.Rptr. 911] examined this prohibition in the context of civil discovery and concluded that the prohibition is absolute. In Irwin, the plaintiffs brought an action against a blood bank, alleging that they had acquired AIDS from infected blood. They sought to take the depositions of blood donors implicated as potential sources of their infection. Applying the predecessor statute to Health and Safety Code section 120975, the Court of Appeal quashed an order granting the request even though the depositions were to be taken “behind a screen.” (Irwin, at p. 157.) “[T]he production of the donor for deposition is in itself an identification within the meaning of the *1218statute. . .. Until the time that the donor appears for deposition, the donor is a number unconnected to a person. Once the person is required to step forth, the connection between the number and the person is made. The donor has been identified. The extent to which that identification is made known to third parties will depend upon the care taken at the deposition but the identification in a civil proceeding has been made. This the statute prohibits.” (Ibid.)
The majority does not attempt to reconcile the discovery that it authorizes with Health and Safety Code section 120975 except to assert that defendant has waived its protection by placing his HFV status at issue. (Maj. opn., ante, at p. 1198.) Even if this is true of defendant’s own HIV status, it is not true of the identity or HIV status of any third party with whom he may have had a sexual relationship. While the discovery authorized by the majority regarding defendant’s sexual history does not include identifying information for his prior sexual partners or their HIV status, but only the dates and number of his sexual encounters with other men, nothing in the majority opinion prevents plaintiff from renewing her request for such identifying information. To the contrary, the majority opinion encourages her to seek this information because it deems the discovery of defendant’s sexual history relevant to whether defendant had reason to know he was infected with HIV. Moreover, at argument, plaintiff’s counsel acknowledged that he would learn nothing useful if all that is disclosed to plaintiff is the limited information of the dates and number of defendant’s past sexual encounters with other men. Now that plaintiff has the benefit of the majority opinion, she will inevitably renew her request for the identity of defendant’s sexual partners to ascertain their HIV status and the particulars of their encounters with defendant.5
Thus, by creating this new tort, the majority puts this court into the position of encouraging plaintiff to seek disclosure that is not only statutorily prohibited (Health & Saf. Code, § 120975; Irwin Memorial Blood Centers v. Superior Court, supra, 229 Cal.App.3d at p. 157), and subject to civil and *1219criminal penalties (Health & Saf. Code, § 120980) but quite likely unconstitutional as well. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841 [239 Cal.Rptr. 292, 740 P.2d 404] [“California’s privacy protection . . . embraces sexual relations”].) Moreover, once people realize that their HIV status may be exposed during the course of discovery in cases like this, the incentive for voluntary testing provided by the Legislature’s extensive guarantees of confidentiality will be eroded.
The majority seeks to justify imposition of a constructive knowledge standard by asserting that “limiting tort defendants to those who have actual knowledge they are infected with HIV would have perverse effects on the spread of the virus” because it would provide an incentive for some individuals to avoid diagnosis and treatment in order to avoid knowing they are infected. (Maj. opn., ante, at p. 1190.) I find it difficult to believe that avoidance of theoretical future civil liability would play any part in the decision of most people whether or not to get tested to determine if they are infected with a potentially life-threatening virus. I would also point out that this is the first case to reach our appellate courts in which a defendant is alleged to have negligently transmitted HIV. I submit, therefore, that the negligent transmission of HIV by irresponsible individuals is not such a widespread phenomenon that it requires us to create a new tort based on a knowledge standard the scientific viability of which has not been demonstrated and which raises serious issues about statutorily protected confidentiality guarantees and the state constitutional guarantee of privacy. Finally, to the extent that future civil liability is a concern, the majority opinion may have its own “perverse effects on the spread of the virus” by deterring voluntary disclosure of HIV infection to avoid such liability. If a person learns through testing that he or she is HIV positive, he or she would have no incentive to disclose the results of his or her status to his or her former sexual partners so that they might be tested, because under the majority’s holding, to do so would invite them to sue him or her on the theory that he or she should have known he or she was infected even before he or she obtained the test results.
The majority finds “remarkable” what the majority characterizes as “our dissenting colleagues’ proposed rule that even when substantial evidence indicates an HIV-positive individual has reason to know of his or her infection, that individual owes no duty of care as a matter of law to any sexual partner, and that such a duty could arise only when the individual acquires actual knowledge of the infection—although neither [dissent] ever defines how actual knowledge may be established ...” (Maj. opn., ante, at p. 1197, fn. 9.) The majority then, after repeatedly stating that it need not decide what facts would satisfy its reason to know standard, posits a hypothetical example that apparently would fulfill that standard, to wit, “an *1220intravenous drug user who knowingly shares needles daily with a circle of HIV-positive individuals and has symptoms ‘associated with HIV.’ ” (Ibid.)
My conclusion that constructive knowledge should not be the standard for negligent transmission of HIV is guided by my assessment of the policy issues raised by the AIDS epidemic and the legislative response to those issues. It is the majority’s disregard for these policy considerations and the Legislature’s policy judgments in its rush to create this new tort, and not my analysis, that is “remarkable.” In my view, the majority’s ill-considered decision “intrudes into the Legislature’s domain and indulges its own notions about what constitutes good public policy.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1209 [39 Cal.Rptr.3d 821, 129 P.3d 29] (dis. opn. of Baxter, J.).) As for how actual knowledge may be established, as I have noted, according to the CDC, at this point in time, the only way an individual can definitively know whether he or she is infected is through testing. Whether there are or may be other diagnostic tools by which to determine a person’s HIV status is not before us, in part because the majority’s decision, unlike the Legislature’s policy judgments, is not based on any of the underlying science that bears upon HIV infection or transmission.
As to the majority’s hypothetical example—which indulges the rhetorical trick of setting forth an extreme scenario to justify a dubious conclusion—I would observe, first, that the example is incomplete because the majority neither explains how the hypothetical drug user would know that his fellow users are HIV positive nor describes his symptoms and their specific association with HIV as opposed to other illness. Moreover, after 25 years of widely available public information regarding the risk factors for HIV and the manner in which HIV is transmitted, one would think the potential sexual partner of an intravenous drug user bearing needle marks and showing signs of any kind of illness would, if not run for the nearest exit, insist on precautions against possible transmission of HIV.
Second, the majority’s hypothetical example conflates reason to know that one is at higher risk of infection with reason to know that one is HIV positive. The drug user in the majority’s hypothetical would certainly have reason to know he was at higher risk of infection but not necessarily that he was infected with HIV. As I understand the majority, a person who is in possession of knowledge that he or she is at higher risk of HIV infection would not be liable for the negligent transmission of HIV based on a theory he or she had reason to know he or she was HIV positive. If this is not the case, then the majority should be clear about what type of liability it is creating with this new tort.
*1221The majority’s rejection of an actual knowledge standard as a predicate for imposing liability for transmitting HIV also flies in the face of the Legislature’s adoption of an actual knowledge standard in statutes that penalize the transmission of the virus. Health and Safety Code section 120291 makes it a felony, punishable by up to eight years in state prison, for a person to “expose[] another to . . . [HIV] by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV.” (Health & Saf. Code, § 120291, subd. (a), italics added.)6 Health and Safety Code section 1621.5 also makes it a felony, punishable by up to six years in prison, “for any person to donate blood, body organs or other tissue, semen . . . , or breast milk . . . who knows that he or she has acquired immune deficiency syndrome, as diagnosed by a physician and surgeon, or who knows that he or she has tested reactive to HIV.” (Health & Saf. Code, § 1621.5, subd. (a), italics added.) Finally, Penal Code section 12022.85 imposes a three-year sentence enhancement on any person who commits a specified sexual offense “with knowledge that he or she has acquired immune deficiency syndrome (AIDS) or with the knowledge that he or she carries antibodies of the human immunodeficiency virus at the time of the commission of those offenses.” (Pen. Code, § 12022.85, subd. (a), italics added.)
The Legislature’s use of an actual knowledge standard in statutes that criminalize the transmission of HIV is significant and instructive. The Legislature has not hesitated to impose criminal penalties based upon constructive as well as actual knowledge when it has deemed constructive knowledge sufficient to warrant liability. (See, e.g., Pen. Code, § 245, subd. (c) [assault with a deadly weapon or instrument, other than a firearm, upon a victim whom the perpetrator “knows or reasonably should know ... is a peace officer or firefighter engaged in the performance of his or her duties”]; id., subd. (d) [same, for assault with a firearm]; id., § 12022.9 [imposing a five-year enhancement for an injury inflicted during the commission of a felony upon a victim whom the perpetrator “knows or reasonably should know ... is pregnant”].) Yet, despite the Legislature’s greater expertise dealing with the AIDS epidemic, it has not adopted a constructive knowledge standard in statutes criminalizing the transmission of AIDS. Rather, the Legislature has recognized, through its educational and public information initiatives, that the responsibility for preventing the spread of HIV must rest *1222primarily with sexually active individuals precisely because the virus may be unknowingly and unwittingly transmitted. Therefore, I conclude that the Legislature’s use of an actual knowledge requirement in these penal statutes reflects a legislative judgment that a constructive knowledge standard is not appropriate for purposes of imposing civil liability for the transmission of HIV.
The majority asserts that the Legislature’s use of an actual knowledge standard in these criminal statutes “in no way suggests that the Legislature intended to depart from Civil Code section 1714 or from ordinary negligence principles in a civil action for negligent transmission of HIV.” (Maj. opn., ante, at pp. 1196-1197, fn. omitted.) This assertion is consistent with the majority’s decision to ignore the unique nature of the AIDS epidemic and minimize the implications of legislative policy judgments with respect to the epidemic as reflected in the large body of AIDS law. The Legislature, much more than this court, has a long history of responding to the epidemic and doing so with an expertise this court cannot command in service of the goal of reducing HIV infection. Plainly, if the Legislature believed that a constructive knowledge standard was workable and would help achieve that goal it would not have hesitated to include that standard in the HIV penal statutes, just as it has adopted a constructive knowledge standard in other penal statutes where it deemed the use of such a standard necessary to protect the public safety. Thus, the Legislature’s decision not to use a constructive knowledge standard, but to premise criminal liability for the transmission of HIV on actual knowledge only, cannot be dismissed as irrelevant to the discussion of civil liability which, in effect, is what the majority has done.
Finally, I am concerned that the creation of this new tort is also inconsistent with the Legislature’s policy of guarding against the conflation of transmission of HIV with sexual orientation in a way that stigmatizes one of the populations most vulnerable to infection. This legislative solicitude is demonstrated, for example, in Health and Safety Code section 120292, which governs disclosure of HIV records in criminal investigation. In that statute, the Legislature has specifically provided that a court order for such records “shall not be based on the sexual orientation of the defendant.” (Id., § 120292, subd. (a)(1).) In this same vein, the Legislature has mandated that AIDS education in public schools include “[d]iscussion about societal views on HIV/AIDS, including stereotypes and myths regarding persons with HIV/AIDS. This instruction shall emphasize compassion for persons living with HIV/AIDS.” (Ed. Code, § 51934, subd. (b)(7).) Thus, in adopting AIDS policy, the Legislature has been sensitive to the need to separate the public health issues raised by the AIDS epidemic from the prejudice AIDS has generated toward some of its victims. The majority does not similarly consider whether and what impacts its creation of this new tort might have on the populations most vulnerable to infection.
*1223For these reasons, I dissent from the majority’s creation of a cause of action for negligent transmission of HIV based on a constructive knowledge standard. I would find that civil liability for transmission of the virus must be predicated upon actual knowledge of infection. This result would be consistent with the Legislature’s painstaking formulation of a comprehensive policy to combat the AIDS epidemic.
By contrast, the majority’s result is inconsistent with legislative policy. The majority allows a person who tests HIV positive to bring an action against all former sexual partners and attempt to ascertain not only whether they had actual knowledge they were HIV positive when they engaged in sexual relations but also whether they had any “reason to know” they were HIV positive.7 This cause of action potentially licenses invasions into the sexual privacy of all sexually active Californians and may even invite abuse of the judicial process. One can easily foresee a spate of “shakedown” or vengeance lawsuits brought by plaintiffs whose motivation is not so much to discover how they contracted HIV as to force lucrative settlements or embarrass a former sexual partner by exposing that person’s sexual history in the guise of obtaining relevant discovery. Even without this potential for abuse, the threat to the confidentiality of HIV test results and to sexual privacy, the apparent absence of any scientific grounding for a constructive knowledge standard, and the potential for stigmatization of individuals based on their sexual orientation are powerful arguments against this novel theory of liability for the negligent transmission of HIV. I understand that the majority is guided by the commendable goal of preventing transmission of HIV and AIDS, but creating this new tort is not the way to go about it. Instead, with this decision the majority has opened a Pandora’s box. For these reasons, I respectfully but emphatically dissent.
In Doe v. Johnson, plaintiff Jane Doe alleged that defendant Earvin “Magic” Johnson wrongfully transmitted HIV to her through consensual sexual conduct. Included in her action were allegations that Johnson knew or should have known he was infected with HIV. The district court found that constructive knowledge could be based on the presence of symptoms associated with HIV or actual knowledge that a prior partner was HIV positive. (Doe v. Johnson, supra, 817 F.Supp. at p. 1392.) Although I do not agree with Doe that a constructive knowledge standard is appropriate in a claim involving the negligent transmission of HIV, Doe at least applies a more rigorous standard of what constitutes constructive knowledge than the majority.
In Plaza v. Estate of Wisser (1995) 211 A.D.2d 111 [626 N.Y.S.2d 446], the appellate court, without substantive analysis, held that allegations in a complaint that the defendant knew or had reason to know he was infected with HTV prior to his having been diagnosed as HIV positive, including an allegation that he was aware a prior sexual partner was HIV positive, were sufficient to withstand a motion to dismiss fraud and negligence claims. (Id. at pp. 450-451.) These allegations were made in a procedural context that required the reviewing court to accept them as true. (Id. at p. 452.)
The majority insists that HTV is no different from other sexually transmitted diseases like syphilis and HPV because they “are also life-threatening,” and a social stigma may also attach to them. (Maj. opn., ante, at p. 1196.) The majority asserts that the dissent “fail[s] at bottom to explain why the distinctions between HIV and other sexually transmitted diseases . . . warrant wholesale rejection of ordinary tort principles in this case.” (Maj. opn., ante, at p. 1196.) My point, of course, is not that tort principles are inapplicable to transmission of HIV but that the applicability of such principles must be examined in light of the special policy issues raised by HIV and the Legislature’s response to those issues to ensure that the courts and the Legislature are on the same page with respect to combating this still potentially lethal disease. Since the majority denies that HIV is any different than other sexually transmitted diseases, it fails to undertake this examination. The majority’s comparison of HIV to other sexually transmitted diseases is also specious. While other sexually transmitted diseases may have serious consequences, if untreated, and some degree of social stigma may attach to them, there is simply no comparison between those diseases and HIV in terms of the life-threatening potential of HIV and the stigma that attaches to it because of its association with drug use and homosexuality. *1217(See, e.g., Fullbright, Disease Denial Devastating for African Americans, S.F. Chronicle (June 5, 2005) pp. 1, 8 [“The decades-long lag in identifying AIDS as a black health issue results from both the disease’s initial identification as a white epidemic and its association with homosexuality, which carries a heavy stigma in the black community”].) The singularity of HTV is also evident in the Legislature’s response to the AIDS epidemic in comparison to its treatment of other sexually transmitted diseases. For example, while the Legislature created an Office of AIDS within the California Department of Health (Health & Saf. Code, § 100117) it has not created a comparable office for any of the sexually transmitted diseases mentioned by the majority nor has it enacted anything like the large body of AIDS-specific statutes with regard to these other sexually transmitted diseases. Given all this, it is simply not plausible to assert that AIDS is no different from other sexually transmitted diseases.
The recent enactment of legislation that requires California to use a name-based system for reporting cases of HIV/AIDS to public health agencies in order to protect federal funding does not impact statutes that bar the unauthorized disclosure of an individual’s HTV status. (Keller, Schwarzenegger Signs Bill to Track HIV Cases by Name, L.A. Times (Apr. 18, 2006) p. B3.)
The majority’s response that it need not consider the propriety of discovery requests not before it is part and parcel of its failure to examine the ramifications of its decision on legislatively enacted HIV policy, specifically, in this case, the effect of its newly minted tort on the proscription against the discovery of HTV test results in Health and Safety Code section 120975. This failure is particularly conspicuous in this case where, in argument, plaintiff’s counsel essentially informed this court that he will be seeking identifying information about defendant’s sexual partners. The majority also asserts that my interpretation of the HIV confidentiality statutes would “eliminate entirely the possibility of tort liability for the knowing or negligent transmission of HTV.” (Maj. opn., ante, at p. 1197.) Certainly, one reading of these statutes may be that they would bar a claim for transmission of HIV insofar as that claim required a defendant to disclose his or her HTV status or the status of his or her sexual partners. This is precisely the kind of question with which the majority might have been expected to grapple before rushing to create a novel cause of action for transmission of HIV based on a constructive knowledge standard.
Yet even a defendant accused of this offense does not lose all of his or her privacy rights with respect to information about his or her HIV status. Health and Safety Code section 120292 permits disclosure of such information only with a court order and only after the court has “weighted] the public interest and the need for disclosure against any potential harm to the defendant, including, but not limited to, damage to the physician-patient relationship and to treatment services.” (Health & Saf. Code, § 120292, subd. (a)(2).)
The majority’s suggestion that its holding applies only to “a couple who were engaged and subsequently married” (maj. opn., ante, at p. 1193) is no real limitation given that the duty analysis that precedes this statement makes no distinction between married couples and everyone else.