Should Prominent Surgeon Be Able to Pseudonymously Sue University of Michigan for Allegedly Improper Suspension?

If so, should that be because his "stellar reputation is a critical component to ensuring the public's trust for him to operate on their children for complex procedures"?

An interesting question raised in Doe v. Board of Regents, just filed yesterday; you can see the motion for TRO, and the motion for leave to file exhibits under seal, which sets forth the argument for pseudonymity:

Plaintiff files this case anonymously because of the extremely sensitive nature of the case, as Plaintiff's stellar reputation is a critical component to ensuring the public's trust for him to operate on their children for complex procedures, and Defendants' threat to report his suspension to the National Practitioner Data Bank and the State of Michigan Board of Medicine would cause irreparable damage to his reputation and career. As a result, this suit will require disclosure of information "of the utmost intimacy," and therefore, Plaintiff is entitled to protect his identity in this public filing by not disclosing his name.

The papers seem opaque on why the plaintiff was suspended, but here's a passage from the Complaint:

[38.] On more than one occasion, Dr. Doe approached Michigan Medicine leadership to report concerning administrative practices, particularly related to transparency and accountability.

[39.] Shortly after Dr. Doe raised his concerns, Michigan Medicine, all of a sudden, decided to bring up three recent non-event matters—none of which had a negative outcome or harmful consequence.

[40.] Michigan Medicine used those three recent matters as a basis for suspending Dr. Doe's clinical privileges indefinitely, and advising they were going to report him to the State of Michigan Board of Medicine, and they were going to report him to the National Practitioner Data Bank (NPDB), which they did.

I sympathize with the doctor's concerns, but I wonder whether they are materially different from those of any other employee plaintiff who claims that he was, say, improperly fired or suspended, but who is worried that identifying himself will just further publicize the allegations against him (however unsound he thinks those allegations are). More broadly, I wonder whether the situation is materially different from a criminal defendant who is worried that the very existence of charges against him will ruin his reputation and career, even if the charges are eventually disproved in court. So let me ask you folks what you think, and in particular whether your reactions fall in one of these four categories:

1. People who file lawsuits should have to identify themselves, so the public can properly supervise what the court does in those cases. (This might leave room for more pseudonymity for defendants, criminal or civil, who don't voluntarily go to court; but, while that's a more important question, it's not raised by this case.)
2. The doctor deserves pseudonymity, as do all other employees and others who sue claiming they were improperly fired or suspended but who don't want the allegations against them to be associated with their names.
3. In this case, the complaint gives enough details that enterprising journalists and others who really want to investigate the matter can do so; but pseudonymity prevents quick Google searches for the doctor's name from coming up with the court docket, filings, and opinions. That's a good compromise, for any employee plaintiff.
4. Most employment law plaintiffs should have to sue in their own names, for reasons given in option 1—but this situation is different, "because of the extremely sensitive nature of the case, as Plaintiff's stellar reputation is a critical component to ensuring the public's trust for him to operate on their children for complex procedures."

Comments

[sparkstable]

IANAL so if there is some compelling reason why my idea is wrong... I am all ears.

Why not keep all citizens accused in court anonymous until the resolution of the trial? Civil or criminal. Once the trial resolves, if the defendant is found to be not guilty then keep their name out of the mud. I don't see how knowing the unique identity of a person alters the principles applied by the public at large when "overseeing" the justice system. But if the person is found guilty, then publish their name in the documents. The public has no need to know the goings-on of a trial in real time (even though I do enjoy watching a good trial live). It isn't like the public can do anything during the trial to hold the system to account. More likely the only thing the public can do is intervene in ways that poison the case rather than preserve it.

Yes... wrongful convictions would be a kink in such a system, but nothing is going to be perfect.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I've thought of that too. But there are practical problems.

* Publicity helps find witnesses who didn't know they were witnesses, and there was nothing which would have lead either party to find them.
* Look at how many people are involved in a case who are not sworn to secrecy, and think how hard it would be to prevent leaks. Almost by definition, these leaks would be biased and unreliable, and then what do you do -- start a witch hunt to find out who leaked?
* Once the trial is over, scads of witnesses will find ready excuses to be kept out of the publicity -- I didn't realize how traumatic it would be to testify, I don't want my kids to have to deal with this at school, my spouse's business will suffer, And it will be a lot more tempting post-trial to cave a little now, a little more next time, until post-trial releases very little actual information.
* The real-time goings-on are very much more important to be observed as they happen, so scumbag lawyers know they will be called out in real time instead of pleading extenuating circumstances weeks later when the court has other things to do.

[Stephen Lathrop]

Here is a summary from the Boston Globe, of an apparently similar case which attracted a lot of press attention.

For four years Dr. Dennis Burke practiced medicine under a cloud. The prominent orthopedic surgeon had been fired by Massachusetts General Hospital in 2015 for allegedly violating patient confidentiality. But Burke always believed he had been dismissed for raising safety concerns about colleagues who performed two operations at once.

On Thursday, he received extraordinary vindication. Mass. General agreed to pay him $13 million and offered him his old job back to settle his wrongful termination lawsuit. MGH also agreed to honor Burke with a hospital safety initiative in his name, according to his lawyer, Ellen Zucker.

“I started working at the MGH as a teenager, returned as a resident and then member of its staff. It was my professional home,” said Burke, a 67-year-old hip and knee specialist whose patients have included former secretary of state John Kerry. “I am glad that this dispute can be put behind us.”

I followed the case with special interest. Years before the trouble, Burke did a brilliant job replacing my own right knee, with a precision which would have done credit to a machine shop. After 17 years Burke's handiwork remains the best joint in my body.

[Rev. Arthur L. Kirkland]

Federal prosecutors recently filed charges against other medical providers with respect to the multiple-operations-at-once issue. The challenged practices were alleged to have precipitated false billing, risk to patients, harm to patients, noncompliance with professional standards, and other consequences.

The government alleges ""longstanding, knowing, and egregious violations of the public trust and patient rights" and billing fraud. The health care system has responded that "No law or regulation prohibits overlapping surgeries or billing for those surgeries." I believe the dispute began as a qui tam (whistleblower sues on behalf of a government interest) action filed under seal a couple of years ago.

I have no idea whether the Michigan case involves overlapping surgeries.

[Rossami]

You ask for reactions so here is my not-especially-informed opinion.

Your option 4 is a non-starter. Even if completely true (and there is considerable evidence of the medical power of placebo effect which could be diminished by such an attack on the doctor's credibility), it reeks of special pleading and would be a precedent exploited far too quickly. Best not to even start down that road.

I'm not seeing a lot of difference between options 2 and 3. Regardless, they have a lot going for them. Especially if as you explicitly state in #3, the complaint is sufficiently detailed to monitor the actions and decisions of the court despite not listing names. I could be comfortable with that approach if it included a counter-balancing control that I don't see on your list. So let me propose that specifically.

5. Pseudonimity may be granted if the complaint must provide sufficient detail for enterprising journalists and others to investigate the matter and to ensure the proper and impartial functioning of the Court but only thru the trial proceedings. Pseudonimity will be lifted and all party names revealed at the point that guilt/innocence/fault is determined.

Under option 5, we the public still have the full power and authority to review the operations of our courts, just not in real-time. Meanwhile, innocents can have their identities and reputations protected from Google until contemporaneous with a court finding that they actually are innocent.

[Stephen Lathrop]

There is a No. 5 to add to EV's list. I have mentioned this previously, but it is worth repeating. Any time issues impinging on reputation may find their way into the news, anonymity is usually bad policy. The problem is that if people know parts of the particulars, some people, especially those with tangential connections to the story, will try to guess the name. And many will guess wrong. By that dynamic, the wrong people can suffer reputational damage, or be denied deserved credit.

[Devin Watkins 2]

Imo, where the lawsuit isn’t about them, allowing them to proceed by initials, (where members of the public who want to know their identify can find out, say an entry in the docket of their full name, but most briefing is done referring to them as “plaintiff” or by their initials), is the best way to go. It’s not anonymous, anyone can find out who they are, but it’s not going to automatically come up in search results of their name.

[Eugene Volokh]

What do you mean "the lawsuit isn't about them"? Do you mean when it's just witnesses, rather than parties, who seek pseudonymity? (My sense is that courts are indeed much more likely to allow pseudonymity for witnesses.) But when it's the plaintiff suing -- and making factual arguments, and not just claiming that some statute is facially unconstitutional as a legal matter -- then wouldn't the lawsuit always be about him?

[Publius_2020]

4B. Most issues like this involve some kind of balancing between the public interest and the individual harm, which is to say they depend upon a fact-based assessment. In the vast majority of cases, the public interest in open court proceedings prevails. But there are some cases where the individual harm is much greater than average.

In response to EV's query, I don't think that this doctor's concerns are materially different in *type* than other employment termination plaintiffs, but courts don't generally assess harm for TRO/injunction/sealing purposes based on type -- rather it is an individual assessment based on the specific facts. And, for better or worse, the potential loss of $20,000 in income is usually weighed differently than the potential loss of $1 million, or $10 million. Add on top of that the reputational injury, which (again) is usually viewed differently for national class *stars* versus average workers.

TLDR Summary: It depends on whether the doctor can demonstrate potentially irreparable harm.

[Eugene Volokh]

Publius_2020: But I take it that the potential loss in income is roughly proportional to the plaintiff's earning capacity, right? Say you have Dr. Doe, who faces the loss of $1 million in income (or in aggregate reputational injury, if you prefer), because he's earning $500,000 per year, and Ms. Doe, who faces the loss of $40,000 in income/reputational injury, because she's earning $20,000 per year. Should the two be treated differently?

[rsteinmetz]

One could argue that the person earning the lesser amount suffered more severe consequences.

Also some of the statements in the complaint could point to hubris on the part of the Doc. A not uncommon trait of surgeons.

[Lee Moore]

I have rattling around in the back of my mind, the notion that when a plaintiff seeks damages for some tort or contractual offense, he has to do what he reasonably can to minimise the damage caused. eg if a guest leaves a tap on in the bathroom of your hotel, when you discover this, you're supposed to turn the tap off rather than leave it running, allowing further damage to happen and then suing him for $50,000 rather than $500. Or something like that.

If it were the case that Dr Doe faces the loss of $500,000 of income per annum if his name is associated with the faux scandal in question, but the damage would be limited to say $200,000 of income pa if his name is kept anonymous, might it not be required of him, in keeping with the damage limitation doctrine, to file for anonymity ? If he loses his anonymity claim, then fine, he's done what he can. But if he fails even to try, maybe the defendant can argue he failed to try to limit the damage.

[Rev. Arthur L. Kirkland]

I gather from Prof. Volokh's treatment of this litigant's pseudonymity issue -- in light of the treatment observed with respect to a series of other persons seeking pseudonymity -- that (1) the litigant is not a right-wing culture warrior or (2) Prof. Volokh is unaware of the litigant's politics.

(Let's go Publius!)

[Eugene Volokh]

Some people mentioned that such cases might be kept confidential until the resolution of the trial. But only a tiny fraction (<5%? <2%?) of all civil or criminal cases lead to a trial; and only a small fraction of civil cases leads to any other final disposition, such as summary judgment. The overwhelming majority of civil cases settle, though often in light of court rulings on discovery disputes, preliminary injunction, denial of motion to dismiss, and the like. Even on the criminal side, many cases lead to plea bargains that don't yield a final sentence (but instead involve a deferred disposition, which is basically pretrial probation).

Would that affect your analysis? Or is that part of the point -- that in the overwhelming majority of cases that don't yield an authoritative judgment, the parties' identities should be kept confidential?

[Rossami]

I can't speak for others but I would say that at the point the case resolves, regardless of how, the need for and right to anonymity vanishes. (Or at least that the balancing considerations change both qualitatively and quantitatively.) Summary judgement is still a final determination with one side "winning". Settlements and plea bargains are also final decisions. A "deferred" sentence is still a sentence. Even merely abandoning a case would be seen by most of the public as a concession that your case wasn't very good.

It was not my intention that parties should be able to game to system to permanently stay anonymous.

[Kenneth Almquist]

Like Rossami, I would say that anonymity ends when a civil case is settled. I don't know the procedural aspects of settling a case, but I would assume that after reaching an settlement agreement, the parties file a joint motion asking the judge to dismiss the case. What I would suggest--and I don't know whether current rules permit this--is that the parties be allowed to attach information about the settlement terms to this motion. So, for example, if the parties to a libel lawsuit agree that the defendant will issue a retraction, they could agree to record this agreement in an attachment to the motion to dismiss, allowing anyone who finds the case on the internet can look at the disposition of the case and read the retraction.

This only addresses the situation where a party desires anonymity because an allegation publicized by filing a lawsuit can cause harm because people will think it might be true, even though it's false. It doesn't address cases where the underlying facts are embarrassing regardless of how the case turns out. The key points are that (1) because the anonymity is temporary, it mainly benefits people with meritorious cases, where the need for anonymity will be reduced or eliminated once they win their case, and (2) the temporary nature of the anonymity means it has less effect on the ability of the public to oversee the courts than permanent anonymity would have. So to the extent there is a case for anonymity, the case for it would seem to be strongest in cases like these.

[Kenneth Almquist]

The link to the TRO is broken. The correct link is: https://storage.courtlistener.com/recap/gov.uscourts.mied.359047/gov.uscourts.mied.359047.3.0.pdf

[Eugene Volokh]

Whoops, fixed, thanks!

[ReaderY]

Perhaps the situation is more or less the opposite what Monty Python described:

“You can’t say (klaxon) on the radio
Or (whip crack) or (arrow thud) or (croak).
You can’t even say I’d like to (vibraphone) you someday,
Unless you’re a doctor with a very large (doing).”

My theory is that here in America some half a century later, the situation is more or less the opposite. You can’t AVOID having everything about you played on the radio. Unless, of course, you’re a doctor with a very large (doing).

[Jackson]

1 is insufficient but correct.

In the case where reputation is a component of the act, in our hyper-online world, courts should be more willing to include that in the damages component of the case.

For instance, in this case, if the surgeon is found to have been improperly disciplined, there should be a monetary value attached to the damages (and those damages should err in favor of the wronged party if there is uncertainty).

Hand-waving away the reputation while also requiring public filing is itself biasing the legal system against those who were wronged in this context.

[QuantumBoxCat]

"On more than one occasion, Dr. Doe approached Michigan Medicine leadership to report concerning administrative practices, particularly related to transparency and accountability."

Stating his concerns about transparency and accountability in a motion to proceed anonymously. I love it!

[QuantumBoxCat]

Since Doe's attorney basically copied and pasted Doe's University of Michigan bio page, it wasn't very hard to figure out who Doe is.

I suppose his stellar reputation is now ruined.

[Kenneth Almquist]

The internet has made information about court proceedings a lot more widely available than in the past, which means that practices that worked reasonably in the past may be more problematic today. Never the less, I am still inclined to go with option 1.

The most plausible alternative I see to denying pseudonymity completely is to allow temporary pseudonymity until a case is resolved, at which point the actual identity of the plaintiff would be revealed. That way a victim of libel could sue without calling further attention to the libelous statements until after the court had determined whether the statements were in fact libelous. That's better, in terms of public oversight, than concealing the identity of the plaintiff forever (or until someone pays a lawyer to file a motion to ask the court to unseal the identity of the plaintiff).

With regard to this case in particular:

I would reject option 4 because I don't think that Dr. Doe has a particularly strong case for proceeding pseudonymously. His clinical privileges have been suspended pending an investigation, and his current patients have been notified of this. This would seem to indicate that he is not currently practicing medicine. For all we know he may never practice medicine again. If he wins this case, I doubt that having his name on the case would have a large negative effect on his ability to subsequently practice medicine.

Dr. Doe has ask the court to issue a temporary restraining order. Suppose that the University of Michigan has correctly concluded that Dr. Doe is no longer competent, but the court issues an order restoring his clinical privileges and a bunch of children die as a result. The judge has legal immunity, so he cannot be held accountable after the fact. I think that this means you really want public oversight before the fact. A TRO reinstating the doctor should be made public, including the name of the doctor, so that the public has the opportunity to evaluate the TRO before children start dying. If the judge's decision to issue the TRO was reasonable, it's a lot easier to convince the public of that if you let them judge the TRO when it is issued, rather than after it turns out badly. And if issuing the TRO was a mistake, making it public at least puts the parents on notice that Dr. Doe's clinical privileges were granted by a Federal judge, and not his medical peers.

[Bob from Ohio]

#5 A court should liberally grant permission to proceed as John/Jane Doe to most parties in civil suits who request it. Most suits have no real public interest and, in the age of Google, personal details can be spread far and wide.

When you had to go to the courthouse to look at the docket and case file, risk of harm was minimal. Its different now and the law should change.

[Rev. Arthur L. Kirkland]

Are you not content with Prof. Volokh's approach -- psuedonymity for right-wing culture warriors (Publius, for example, or right-wing law students), disclosure for everyone else?

[jdgalt1]

If I could be judge (or Congress) for a day, I would enact option 2, generalized to all cases (including Streisand's) where the party who wants to use a 'nym has made a plausible case that he is entitled to forbid the disclosure of his name or identifying information. Of course if the judge rules that the party is not so entitled, then let him unmask that party.

I would also give every person a far-ranging, non-waivable right to forbid any disclosure of his home address (and a corresponding fiduciary duty upon those who already know it), because that is the only practical way to protect against many kinds of mob and vigilante violence. I realize that this would require constitutional change.

[RandomInternetPerson]

1, all the way. The court is a public institution, and public scrutiny is all the more important because other methods of accountability are very constrained as to the judiciary, especially at the federal level. Outside of cases involving minors, I'm very unsympathetic to seals and pseudonyms, including for defendants. That the courts are public both in a governmental sense and in the not-secret sense is integral to how and why we have them. It is the application of law and the making and answering of charges before the community, by an instrument of the community.

[James K. Polk]

It has to be #1. I sympathize with the desire for some level of anonymity, especially as most people appear to believe that you're guilty until proven innocent (civil or criminal case), but whenever information is held back there is the unintended consequence that the status quo protecting the system itself is reinforced.

[Juste Milieu]

Option 1, for sure. The public-supervision rationale, in at least in some circumstances, will be far more compelling than as it’s been described here. As important as it is to for the public to have access to the information it needs to “properly supervise what the court does” in a particular case, it is no less important that the relevant conduct of *non-judicial* public officials also be exposed to public scrutiny. Although it is true that, in this instance, pseudonymizing the plaintiff but leaving the defendants named will not obscure the public’s appreciation of the conduct of the Board of Regents and other agents of the state of Michigan, in other contexts pseudonymizing the plaintiff will effectively defeat (or at least initially impair) the public’s ability to appreciate whether other public officials behaved appropriately and, by extension, whether subsequent judicial validation or condemnation of their behavior is warranted. Consider, for example, the impropriety (not to mention likely longterm futility) of allowing a state prisoner to prosecute—pseudonymously—his appeal from denial of his federal habeas corpus petition. The typical federal habeas petitioner seeks relief on the grounds that (1) his trial attorneys, appointed by and paid by the state, performed in a professionally deficient manner, (2) the judge at that same trial committed errors of constitutional and prejudicial magnitude, (3) the state judiciary failed to do anything about these gross injustices when given the chance to do so, not just on direct appeal but on state collateral review as well, and (4) the district court judge who denied the petition for relief likewise fell down on the job. The original trial, of course, would have been open to the public in proceedings conducted against the the prisoner in his *true name*, and all subsequent proceedings in the state appellate and federal district court—some of which would have culminated in *published* decisions and orders—would also be matters of public record. Pseudonymizing the prisoner for the first time at the conclusion of his appeal to the circuit court—in a *capital case*, no less—is beyond the pale. And yet, it’s been done. Doe v. Ayers, 782 F. 3d 425 (9th Cir. 2015); 789 F.3d 944 (2015).