Doe v. Shady Grove Adventist Hospital

ROSALYN B. BELL, Judge. The issue as presented to us by the parties in this expedited appeal is whether the Circuit Court for Montgomery County abused its discretion in lifting a seal of the records of this' case. The issue we decide, however, is whether appellant demonstrated a compelling interest in protecting the confidentiality of his identity which can be accommodated consistent with the presumption of open access to court records. We will hold that he has.

Appellant filed his complaint on July 11, 1991 under the fictitious name of John Doe, alleging breach of confidentiality of patient medical records and invasion of privacy. The causes of action arose out of appellant’s hospitalization at Shady Grove Adventist Hospital, in January and February of 1990, for pneumonia. During the course of this hospital stay, he was diagnosed as having AIDS. A respiratory therapist at the hospital, one of the individual appellees, treated appellant in connection with appellant’s pneumonia.

The complaint alleges that the therapist shared appellant’s medical records with another respiratory therapist at Shady ³⁵⁵ Grove, who knew appellant from high school. Furthermore, the complaint alleges, the second therapist revealed appellant’s diagnosis and other confidential information contained in his medical records to several of appellant’s family members and friends. Appellant alleges he neither knew of nor authorized these contacts. Specifically, he contends that the second therapist told appellant’s friends and family that appellant had AIDS, was dying, had homosexual experiences, and was a heavy drug user.

Appellant brought his complaint against both respiratory therapists and their employers, Shady Grove Adventist Hospital and Capital Health Care, appellees in this case. Appellant alleges that as a result of appellees’ dissemination of information relating to his AIDS diagnosis, he has suffered a deprivation of his seclusion, emotional distress, worry, anxiety, fear and humiliation. The complaint further alleges that the information was circulated unlawfully, without his authorization. Appellant seeks both compensatory and punitive damages totalling $4.5 million.

Simultaneously with the filing of his complaint, appellant filed a Motion for Ex Parte Injunction and a Motion for Interlocutory Injunction. Both motions sought (1) to bar appellees from publicly identifying appellant and (2) permission from the court to proceed under the fictitious name John Doe. The motions further sought to seal 1 the record to the extent necessary to preclude disclosure of appellant’s identity and to preclude disclosure of facts that would reveal his identity. The court granted the Motion for Ex Parte Injunction on July 11, 1991.

On July 19, 1991, the parties appeared for a hearing. The same judge who granted the Ex Parte Injunction ruled from the bench that the parties could use appellant’s name only for purposes of conducting discovery. Although appellant did not seek ³⁵⁶ such broad relief, the judge also sealed the entire record of the case except for the names of counsel of record and their authorized agents/designees. 2 A hearing on the Motion for Interlocutory Injunction was held before a different judge on July 26, 1991. At that hearing, The Times Journal Company, publisher of the Montgomery Journal, moved to intervene in the case to assert its interests in open court hearings and court records.

The motion to intervene was granted. On that same day, The Times Journal also filed a Memorandum of Points and Authorities in Opposition to the Closure of Hearings. The Times Journal asserted a First Amendment right of access in the case, asserting that the public has a right to know of the names and identities of persons who invoke judicial processes. The Times Journal, together with the four appellees, claimed that appellant had waived any rights he may have had to protection of his identity by giving interviews to the press.

Two exhibits — one, an article from the Washington Post, and the other, an article from the Montgomery Gazette — were accepted as evidence at the hearing. Neither of the articles identified appellant by name. The articles did, however, mention the town where he lived, the name of the high school he attended, and a physical description of appellant. Appellant gave interviews to several local news channels, but their reports were broadcast without mentioning his name.

Appellant also issued a press release about the suit on the same day he filed the complaint. Appellant gave the interviews and issued the press release, according to his counsel, only with the stipulation that all interviews ³⁵⁷ would be conducted under promises of anonymity. The press was only allowed to contact appellant through his counsel. To date, this promise of anonymity has not been broken.

Appellant’s attorney also asserts that appellant will continue to enforce the anonymity requirement in any future dealings with the press. At the hearing on the Motion for Interlocutory Injunction, the motions judge found that the public has a presumptive right of access to court proceedings and court records under the First and Fourteenth amendments of the United States Constitution and Article 40 of the Maryland Declaration of Rights; that appellant had not shown that a compelling governmental interest would be served by the order he sought; and that, by electing to go to the media, he had waived any claims to confidentiality he might otherwise have asserted. On July 31,1991, the judge ordered that the seal be lifted and the records of the case be open to the public in all respects. He then stayed the order pending the outcome of this appeal.

On August 13,1991, appellant filed his Notice of Appeal to this Court. The Times Journal has since withdrawn as an intervenor in the suit. In this appeal, appellant contends that: —his constitutional right to privacy constitutes a compelling interest that outweighs the presumption of openness under the First Amendment; and —the trial court erred in finding he had waived his rights to confidentiality by issuing a press release and granting interviews with the media. Although we agree that the entire record of the case may be open to the public, we will reverse the judge’s order to the extent that it fails to protect the confidentiality of appellant’s identity.

APPELLANT’S REQUESTED ORDER At the hearing on the interlocutory injunction, the judge found that the public has a presumptive right of access to court proceedings and records. He ruled that this right ³⁵⁸ “can be overcome only on the basis of evidence that closure is necessary to serve a compelling governmental interest and that closure will be effective in securing that compelling interest, and only if the closure order is narrowly tailored to minimize interference with the public’s right of access and there are no alternatives to closure that would achieve the compelling governmental interest.” The judge then found that no compelling governmental interest would be served by an order protecting the confidentiality of appellant’s identity. We hold that the judge correctly stated the legal test for access to court proceedings. We also hold, however, that he erred in ruling that no compelling governmental interest would be served by an order protecting the confidentiality of appellant’s identity.

We explain. The United States Supreme Court has never directly addressed the issue of access to civil court proceedings and records. It has held, however, that public access to criminal trial proceedings is a right inherent in the First Amendment. 3 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-605 , 102 S.Ct. 2613, 2618-2619 , 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 ³⁵⁹ U.S. 555, 580, 100 S.Ct. 2814, 2829 , 65 L.Ed.2d 973 (1980) (plurality opinion). Although it dealt with criminal trials, Richmond Newspapers noted that historically both criminal and civil trials have been presumptively open to the public.

Richmond Newspapers, 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17 (plurality opinion); see also Gannett Co. v. DePasquale, 443 U.S. 368 , 386-387 n. 15, 99 S.Ct. 2898 , 2908-2909 n. 15, 61 L.Ed.2d 608 (1979) (in rejecting an asserted Sixth Amendment right of the public to attend criminal trials, the Supreme Court noted that at common law, both criminal and civil trials were open to the public). Furthermore, the Supreme Court has also held that court records are presumptively open to the public as well. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 , 98 S.Ct. 1306, 1311 , 55 L.Ed.2d 570 (1978). Both the lower federal courts and this Court have applied the First Amendment analysis to civil as well as criminal proceedings.

Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988); F.T.C. v. Standard Fin. Management Corp., 830 F.2d 404, 408 (1st Cir.1987); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067 (3rd Cir.1984); In Matter of Continental Illinois Sec. Litig., 732 F.2d 1302 , 1308 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir.1983), cert. denied 465 U.S. 1100 , 104 S.Ct. 1595 , 80 L.Ed.2d 127 (1984); Newman v. Graddick, 696 F.2d 796, 802 (11th Cir.1983); Joy v. North, 692 F.2d 880, 893 (2d Cir.1982), cert. denied sub. nom. Baldwin v. Joy, 460 U.S. 1051 , 103 S.Ct. 1498 , 75 L.Ed.2d 930 (1983); State v. Cottman Transmission Sys., Inc., 75 Md.App. 647, 655 , 542 A.2d 859 (1988). These cases have held that the policy reasons enunciated by the Supreme Court in support of public access to criminal proceedings apply with equal force to civil proceedings.

Cottman, 75 Md.App. at 656 , 542 A.2d 859 . Furthermore, newspapers may intervene in criminal cases for the limited purpose of asserting the First Amendment right of access to court proceedings and court records. News American Division v. State, 294 Md. 30, 45 , 447 A.2d ³⁶⁰ 1264 (1982); Hearst Corp. v. State, 60 Md.App. 651, 657 , 484 A.2d 292 (1984). We hold that such intervention is also proper in the civil context.

The right of access guaranteed by the First Amendment and Article 40 of the Maryland Declaration of Rights applies to pretrial proceedings, Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 76 , 465 A.2d 426 (1983), trial proceedings, Erman v. State, 49 Md.App. 605, 633-634 , 434 A.2d 1030 (1981), cert. denied 456 U.S. 908 , 102 S.Ct. 1756 , 72 L.Ed.2d 165 (1982), and court records, Hearst Corp., 60 Md.App. at 658 , 484 A.2d 292 . The holdings of both the Supreme Court and the courts of Maryland clearly state, however, that the right of access inherent in the First Amendment is not absolute. Globe, 457 U.S. at 606 , 102 S.Ct. at 2620 , citing Richmond Newspapers, 448 U.S. at 581 n. 18, 100 S.Ct. at 2830 n. 18 (plurality opinion). The right of access may be limited “when an important countervailing interest is shown.” Cottman, 75 Md.App. at 656 , 542 A.2d 859 , quoting Publicker Indus., 733 F.2d at 1071 .

The party seeking to restrict access to court proceedings or records carries the burden of establishing the need for the restriction. Cottman, 75 Md.App. at 656-657 , 542 A.2d 859 . “Since the right of public access is firmly embedded in the First Amendment, ‘it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.' ” Cottman, 75 Md.App. at 657 , 542 A.2d 859 , quoting Globe, 457 U.S. at 607 , 102 S.Ct. at 2620 . Here, appellant proffered his constitutional right to privacy as the compelling governmental interest which would be protected by a confidentiality order. The judge ruled that this interest did not rise to the level of a compelling governmental interest.

In the circumstances of this case, we disagree. Like the First Amendment right of access, the constitutional right to privacy is another of the certain unarticulated rights implicit in the enumerated guarantees of the ³⁶¹ Bill of Rights. These unarticulated rights are on equal footing with, and are indispensable to the enjoyment of, the explicitly defined rights. Richmond Newspapers, 448 U.S. at 579-580 , 100 S.Ct. at 2828-2829 .

The right of privacy is grounded in the concept of personal liberty embodied in the Fourteenth Amendment, and has roots in the First, Fourth, Fifth and Ninth Amendments. Roe v. Wade, 410 U.S. 113, 152-153 , 93 S.Ct. 705, 726-727 , 35 L.Ed.2d 147 (1973). According to the allegations of his complaint, appellant has contracted the AIDS virus. 4 This diagnosis was made while he was a patient at Shady Grove Adventist Hospital, suffering from pneumonia. Appellant alleges that appellees unlawfully informed other people, including members of his family and his friends, of his AIDS diagnosis, without his permission.

Assuming no defense is established, these allegations, if true, make out a patent violation of his right to privacy. Dissemination of his name in the media, to thousands if not millions of people through newspapers and television, would result in an even greater violation of his privacy than has already occurred. We hold that the protection of appellant’s privacy is a sufficiently compelling governmental interest to support some limitation on the public’s constitutional right of access to the records of this case. Cottman, 75 Md.App. at 657 , 542 A.2d 859 (“interests compelling enough to overcome the presumption of openness usually take the form of a privacy right”).

See ³⁶² Seattle Times Co. v. Rhinehart, 467 U.S. 20 , 104 S.Ct. 2199 , 81 L.Ed.2d 17 (1984) (protective orders for discovery materials based on an asserted privacy right of one of the parties). Cf. Rasmussen v. South Florida Blood Serv., 500 So.2d 533, 537 (Fla.1987) (granting plaintiff in a personal injury case access to the names of blood donors would infringe the constitutionally protected privacy interests of the blood donors). Although not asserted by appellant, at least two other interests exist, clearly present on this record, that provide further support for our conclusion that appellant is entitled to an order protecting the confidentiality of his identity.

First, in addition to his constitutional right to privacy, appellant’s complaint alleges a violation of Md. Health-Gen.Code Ann., §§ 4-301-305 (1982, 1990 Repl.Vol.), 5 which establishes a presumption of confidentiality for medical records. Widespread dissemination of appellant’s identity in this litigation would not only undermine this legislative determination, but would also exacerbate the injury he alleges that he has already suffered at the hands of appellees. Appellees will then be able to argue that appellant suffered no damages as a result of their actions, because the information later became public. As a result, the Legislature’s determination, codified in §§ 4-301-305, that medical records are presumptively confidential, would rarely if ever be vindicated in the courts.

A second, and somewhat related interest served by a confidentiality order is to encourage those whose rights under §§ 4-301-305 and the constitutional right to privacy have been violated to pursue vigorous enforcement of those rights in the judicial setting. Potential plaintiffs, who believe that their rights may have been violated, will be loath to bring their complaints to court if the end result will be ³⁶³ further and even more widespread violation of those rights. An order protecting the confidentiality of appellant’s identity would serve the state’s interest in encouraging individual enforcement of constitutional and statutory rights. We conclude that the judge erred in holding that no compelling governmental interest would be served by an order protecting the confidentiality of appellant’s identity.

With respect to proceeding as a John Doe, this is all that appellant was required to show. Doe v. Prudential Ins. Co., 744 F.Supp. 40, 41 (D.R.I.1990). 6 Therefore, he is entitled to an order allowing him to proceed under a fictitious name. Although not raised by either party, Rule 2-201 arguably would bar appellant from proceeding under a fictitious name: “Every action shall be prosecuted in the name of the real party in interest____” No Maryland cases have addressed this issue, although we have found two Court of Appeals cases which are titled in fictitious names, without any analysis of the right to do so.

Doe v. Board of Educ. of Montgomery County, 295 Md. 67 , 453 A.2d 814 (1982); Doe v. Commander, Wheaton Police Dept., 273 Md. 262 , 329 A.2d 35 (1974). In a slightly different approach, the Court of Appeals answered a certified question using initials to protect the identity of the parties in B.N. v. K.K., 312 Md. 135 , 538 A.2d 1175 (1988). Although no Maryland cases have addressed the right to proceed anonymously, Rule 2-201 is patterned after Rule 17(a) of the Federal Rules of Civil Procedure. Rule 17(a) ³⁶⁴ does not expressly provide for anonymous plaintiffs; however, the weight of authority in the federal circuits is that, at least under some circumstances, plaintiffs seeking to be shielded from some serious harm or injury may proceed anonymously.

In Doe v. Stegall, 658 F.2d 180, 185 (5th Cir.1981),