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Appeals court removes sealing order in case against plastic surgeon

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  1. Court Access

    NMU         CALIFORNIA         Secret Courts         Nov 29, 2000    

Appeals court removes sealing order in case against plastic surgeon

  • The potential embarrassment to patients does not support squelching the free speech rights of litigants, the court held.

The California Court of Appeal in Los Angeles ruled on Nov. 20 that an order sealing court records and prohibiting disclosure of allegedly “confidential” information was unconstitutional.

The sealing order arose in a case of a plastic surgeon accused by former employees of exposing and ridiculing the genitals of patients placed under anesthesia. Many of the doctor’s patients are celebrities.

The trial judge found that the patients, who were not parties to the lawsuit, had a privacy interest in their medical information based on the physician-patient privilege. Therefore, the court sealed the filed declarations that described the surgeon’s improper conduct and named the affected patients. The court also ordered the trial participants to refrain from identifying the patients in any manner in any conversations about the case.

In balancing the patients’ privacy against the free speech rights of the participants, the trial court decided a fair trial required a finding in favor of the patients.

The appellate court reversed the trial court, finding that neither privacy nor the interest in a fair trial overcame the First Amendment rights of the litigants in the case. The appeals court imposed a strict standard to justify gag orders on trial participants. A gag order is unconstitutional, the court said, unless the speech imposes a “clear and present danger or serious and imminent threat” to another interest.

The appeals court ruled that the mere possibility that potential jurors might be prejudiced by the disclosure of information was an insufficient basis for restricting the dissemination of information. The court also ruled that the physician-patient privilege does not justify a prior restraint because the privilege applies only as a rule of evidence, prohibiting the court from compelling testimony. The privilege does not prohibit speech outside the courtroom or voluntary speech.

Finally, the court ruled that the privacy of the patients did not justify the sealing order. The court noted that the patients might be embarrassed by what had happened to them, but found that the potential for embarrassment did not outweigh the interest in free speech.

(Hurvitz v. Hoefflin) AG


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