Judges sometimes say people have a constitutional right to medical privacy, that keeps government officials from releasing sensitive information about them. For example, in Fadjo v. Coon, a federal appeals court ruled that the right to privacy created a “right to confidentiality” in a man’s medical records. In that case, a Florida state attorney investigator had released to insurance companies information about the plaintiff gathered by way of the state’s subpoena power and obtained after assurances of absolute confidentiality. He lost out on jobs as a result. Judges let him sue government officials for the breach of confidentiality.
But that right to confidentiality may only apply when the government forced you to reveal that information. That doesn’t mean you can sue anonymously over medical issues, or over things like whether Medicare should pay for certain treatments. When you sue, that can effectively waive your right to confidentiality, and your private medical issues may become public.
Here is an except from the January 12 decision by federal Judge William Shubb in a California lawsuit, Beitzel & K.K. v. Becerra:
Plaintiff K.K. has filed a Motion to Proceed with Partial Anonymity. Plaintiff K.K. requests that she be able to proceed by her initials in all public filings in this case because the filing “will contain sensitive and personal information about her rare and severe medical conditions that she has disclosed to very few people, as well as the mental distress and suffering she has experienced relating to her medical conditions and the events underlying this case.” Specifically, she does not want to disclose to the public her medical history of severe psoriasis, psoriatic arthritis, and arthritis mutilans, which would cause her “emotional distress, anxiety, embarrassment, and potential harassment.” {Plaintiff K.K. also wishes to avoid disclosing details of her finances to the public.} She notes that her identity has already been disclosed to defendant and she only wishes to remain anonymous to the general public.
Allowing a party to proceed anonymously runs counter to the public’s right of access to judicial proceedings. However, the Ninth Circuit has allowed parties to use pseudonyms “in the unusual case when nondisclosure of the party’s identity is necessary to protect a person from harassment, injury, ridicule or personal embarrassment.” In determining whether to allow a party to proceed anonymously, the court looks to whether “the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.
Here, there is no prejudice to the Secretary if K.K. uses only her initials in all public filings. On the other hand, the court finds that there is little risk of harassment, injury, or ridicule to K.K. if she has to disclose her identity in court filings. The court is sympathetic to K.K.’s claims that she will suffer embarrassment and mental distress if she is required to disclose her name and by extension her medical condition to the public. However, the court finds that that risk is outweighed by the need for the public to know the identities of the named plaintiffs in this case.
The Ninth Circuit has noted that courts have allowed plaintiffs to use pseudonyms “when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature.'” Doe v. United Services Life Ins. Co. (S.D.N.Y. 1988) (allowing plaintiff to sue insurance company anonymously to protect against identification as a homosexual); Doe v. Deschamps (D. Mont. 1974) (permitting plaintiff in abortion suit to use pseudonym)). The risk of stigmatization, harassment, or embarrassment here does not rise to the level presented in [those cases], given public sentiments at the time of those cases.
No doubt most litigants would prefer not to have their medical problems published in the public records. However, that is a foreseeable consequence of bringing a lawsuit in which those conditions are relevant. Allowing plaintiff to proceed anonymously here would open the door to allowing plaintiffs in many other cases in which their medical condition is in issue to do the same, precluding the public from fully understanding the facts and circumstances of their cases.
This action involves an important issue to the public—whether the federal Medicare program should pay for allegedly critical outpatient medical treatments. The public’s understanding of this case is furthered by knowing which individuals are affected by Medicare’s current practices and how they are affected.
This ruling is largely in accord with how most judges would rule, though court decisions are more divided when it comes to mental illness as opposed to physical illness. (see pages 1410-11 & 1437-41 of Professor Eugene Volokh’s The Law of Pseudonymous Litigation).
