Newspaper denied access

NORTH CAROLINA–In late June, the state Supreme Court in Raleigh unanimously held that a newspaper’s interest in access to materials in a case concerning a doctor’s fitness to practice medicine were outweighed by the interest in protecting the doctor’s and hospital’s confidentiality.

The state high court held that The Charlotte Observer did not have an automatic right to intervene and that the trial court did not err in denying the Observer “permissive intervention.” According to the court, the Observer’s “interest is only indirect or contingent.” The court held, “there was every reason for the trial court to believe that permitting the Observer to intervene would — as it has — unduly delay the adjudication of the rights of the original parties.”

The court also ruled that the newspaper had no right under state statute, federal common law, or state common law to the medical peer review information or to the portions of any hearings pertaining to such information and materials. The court held that the open courts provision of the North Carolina Constitution guarantees a qualified constitutional right on the part of the public to attend civil court proceedings. Nevertheless, the court held that this qualified right of public access did not preclude the trial court from sealing the materials in the case or closing the court proceedings concerning those materials.

The court also held that the compelling public interest in protecting the confidentiality of the medical peer review process outweighed the right of access in this case and that no alternative to closure would adequately protect that interest. The court concluded that the trial court properly closed the hearings and properly sealed the confidential materials, videotapes, and transcripts of the closed hearings.

The court did hold that the trial court erred in ordering that the exhibits attached to the complaint be withdrawn from the public record and sealed because they had initially been filed with the clerk of court.

In 1996, Dr. Ron Virmani filed suit against The Presbyterian Hospital for the revocation of his privileges in Charlotte, North Carolina. Previously, the hospital had concluded that Virmani’s medical judgment “posed a serious risk to the health and safety of its patients” and suspended Virmani’s medical privileges at the hospital.

In several separate orders, the trial court ordered that all documents, including hospital memos and confidential peer review records attached to filings, be sealed and that hearings on a temporary restraining order and motions to dismiss the claims be closed to the media and public.

In March 1996, the trial court entered an order denying injunctive relief and dissolving that part of an earlier temporary restraining order which had ordered Virmani reinstated.

One month later, the Observer published an article about Virmani based on certain documents the reporter had obtained from the court file.

After a closed May 1996 hearing on the parties’ motions for summary disposition of the case, an attorney for Knight Publishing Co., which owns the Observer, appeared before the trial court and presented written motions to intervene and to open the proceedings to the public and the news media. The trial court denied the motions without hearing arguments, sealed additional records, and closed courtroom proceedings involving the discussion and disclosure of peer review information. Subsequent orders were entered sealing videotapes and transcripts of those portions of the previously closed court proceedings in which medical peer review matters were discussed, presented or argued.

The Observer appealed and in November 1997, the Court of Appeals reversed all of the Superior Court orders at issue and directed the court to unseal all of the documents and other materials that had been sealed pursuant to those orders. The hospital then appealed to the state high court.

(Virmani v. Presbyterian Health Services Corp.; Media Counsel: John Hasty and G. Bryan Adams, Charlotte)