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John Doe v. Spencer Cox Clinic, 59 Misc.3d 1210(A), 101 N.Y.S.3d 699 (Table) (N.Y. Sup. Ct. 2018)

59 Misc.3d 1210 (A)
101 N.Y.S.3d 699 (Table)

John DOE, Plaintiff,
SPENCER COX CLINIC, St. Luke's Hospital, Mount Sinai Health Network, Defendants.


Supreme Court, New York County, New York.

Decided on April 6, 2018

Law Offices of Jeffrey Lichtman, 11 East 44th Street, Suite 501, New York, NY 10017, By: Jeffrey Lichtman, Esq., For Plaintiff

Heidell, Pittoni, Murphy & Bach, LLP, 9 Park Avenue, New York, New York 1001, By: Brittany M. Crowley, For Defendants

Robert R. Reed, J.

Plaintiff alleges that defendants, a health care clinic, hospital and healthcare network, are responsible for the improper public disclosure of certain protected patient health information, including, among other things, plaintiff's HIV status, history of STDs, history of sexual abuse and/or assault, and use of treatment-related prescription drugs. Plaintiff instituted this action by summons with notice for the purpose of obtaining certain relief from defendants. By order to show cause, dated September 8, 2017, plaintiff now seeks leave to file a complaint in which he may proceed anonymously, under a pseudonym, rather than in his legal name, and, further, to seal from public access all court records in this action. Defendants oppose the motion.

The determination of whether to allow a plaintiff to proceed anonymously requires the court to "use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant" ( Anonymous v. Lerner , 124 AD3d 487, citing Stevens v. Brown , 2012 NY Misc LEXIS 3340, 2012 NY Slip Op. 31823[U], *8–9 [Sup Ct, NY County 2012], citing Doe v. Szul Jewelry, Inc. , 2008 NY Misc LEXIS 8733, 2008 NY Slip Op. 31382[U], *11 [Sup Ct, NY County 2008] ). Thus, the court considers the following factors:

[1] Whether the justification asserted ... is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; [2] whether the party seeking anonymity has an illegitimate ulterior motive; [3] the extent to which the identity of the litigant has been kept confidential; [4] whether identification poses a risk of mental or physical harm, harassment, ridicule, or personal embarrassment; [5] whether the case involves information of the utmost intimacy; [6] whether the action is against a governmental or private entity; [7] the magnitude of the public interest in maintaining confidentiality or knowing the party's identity; [8] whether revealing the identity of the party will dissuade the party from bringing the lawsuit; [9] whether the opposition to anonymity has an illegitimate basis; [and] [10] [ ] whether the other side will be prejudiced by use of the pseudonym.

(Szul , id. at 16–17).

This court's weighing of these factors in this case supports a determination allowing plaintiff's use of a pseudonym. This action is centered on a claim of improper disclosure of patient health information allegedly entitled to confidentiality under state and federal law—and thus involves a matter of a sensitive and highly personal nature. The disclosure of this particular type of patient health information could lead to social stigmatization—and, as such, plaintiff's identification would pose a substantial risk of undue personal embarrassment. The crux of the parties' dispute, in this court's view, relates to the improper disclosure of patient health information, and, so, necessarily involves information of the utmost intimacy. The action here, significantly, involves a private individual and three private healthcare entities, and does not relate to the conduct of governmental agencies or officers. The public interest in protecting patient health information, moreover, is manifest, in light of state and federal law on the subject. Revealing plaintiff's identity would, in this court's estimation, have a deterrent effect on his willingness to file his complaint with appropriate factual specificity, or to continue this action through motion practice, conferencing, and trial. Notably, defendants have demonstrated no prejudice to them as result of any use by plaintiff of a pseudonym.

Defendants, in opposition, rightly note that no social stigma should attach to any disclosure of plaintiff's HIV status, but that hope does not reflect the actual reality that some with such status face, as a result of prejudice and unenlightened attitudes by many in the community. The parties, at oral argument, disputed whether plaintiff or his counsel may have disclosed plaintiff's identity in the media in connection with this action, but no factual documentation supporting such a claim was timely submitted in opposition to the motion. Finally, the court has been able to divine no illegitimate ulterior motive disguised in plaintiff's request to proceed anonymously.

Largely for the same reasons stated above in assessing plaintiff's request to proceed anonymously, the court finds "good cause" for sealing all of the court records in this action (Uniform Rules for Trial Courts [ 22 NYCRR] section 216.1 [a] ). Plaintiff, in seeking to seal court records, has met its burden "to demonstrate compelling circumstances to justify restricting public access" (see Maxim, Inc. v. Feifer , 145 AD3d 516, 517 ). Here, where the improper disclosure of plaintiff's protected patient health information constitutes the very essence of the parties' dispute, there can be no genuine doubt that "public access to the documents at issue will likely result in harm to a compelling interest of the movant" ( Mancheski v. Gabelli Group Capital Partners , 39 AD3d 499, 502 ). In making this finding of "good cause," pursuant to 22 NYCRR section 216.1(a), the court has "consider[ed] the interests of the public as well as the parties," and has determined that plaintiff's specific interest in safeguarding the confidentiality of his statutorily protected patient health information outweighs the general interest of the public at large in routine access to court records. Notably, this motion was submitted only after oral argument, at a publicly scheduled motion calendar call in the IAS Part. No member of the public, press or media raised any concern regarding the subject matter of the motion or the action at that time.

Accordingly, it is, for the reasons stated above, hereby

ORDERED that plaintiff's motion to file a complaint herein under a pseudonym, rather than in his legal name, and to proceed throughout this action under such pseudonym, rather than in his own name, is granted; and it is further

ORDERED that, for good cause shown, pursuant to 22 NYCRR section 216.1(a), the County Clerk is directed to seal the file in this action in its entirety upon service on him of a copy of this order; and it is further

ORDERED that thereafter, or until further order of the court, the County Clerk shall deny access to the file to anyone (other than the staff of the County Clerk or the court) except for counsel of record for any party to this case, a party, and any representative of counsel of record for a party upon presentation to the County Clerk of written authorization from said counsel.