Tuesday, November 6, 2001
Page 7
Perspectives (Column)
Fifth District Court of Appeal Shields Identity of Dr. X
By ROGER M. GRACE
P. James Nugent is an orthopedic surgeon, practicing in Fresno. Protesting the proposed imposition of restrictions on his privileges at St. Agnes Medical Center, he has invoked the processes of the public court system at the Superior Court, Court of Appeal, and Supreme Court levels. His name appears as the plaintiff or petitioner in papers that were publicly filed in each of those courts, and he has been identified by name during public sessions of the Fresno Superior Court and, on Oct. 11, during oral argument before the Fifth District Court of Appeal.
Notwithstanding the public nature of the doctor’s crusade in public forums to block the hospital from curbing his privileges, the Fifth District Court of Appeal, in an opinion filed Thursday, withheld Nugent’s name, recaptioning the case, Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center. That opinion, which rebuffed the appeal, appeared in yesterday’s MetNews Slip Opinion Supplement (01 S.O.S. 5391). It was authored by James A. Ardaiz, who, as presiding justice, officiates over the “Fresno Follies” (that is, antics of an appellate court the proficiency of which is frequently in doubt). He was joined by Justice Rebecca A. Wiseman and Tuolumne Superior Court William G. Polley, sitting on assignment.
The court not only deleted the name of the appellant, it also sealed the entire file, including, it would seem, papers filed in the trial court which were not part of the record on appeal.
So acting, Ardaiz and his colleagues defied the public’s right to know and spurned the procedure for invoking secrecy prescribed by the California Supreme Court.
Here’s the reason Ardaiz gave, in a footnote, for concealing Nugent’s identity:
“Because of the sensitive nature of the allegations made by the hospital and the pendency of the internal peer review process, we deem it necessary to protect the physician’s professional reputation at this juncture and will refer to him in this opinion as an unnamed physician, or appellant.”
The allegations made by the hospital (through its Medical Executive Committee) were that Nugent’s “acts and omissions caused complications and infections through either poor surgical technique or poor pre-operative assessment or poor post-operative management.” The hospital found that the number of Nugent’s patients who developed postoperative infections was “quadruple the rate of this doctor’s peers” at the hospital and “significantly higher” than the rate nationally. It pointed to two cases where he failed to control bleeding during surgery and one where a patient developed third degree burns from a heated bag placed by his neck. The hospital’s conclusions were bolstered by a report of an outside medical consultant who found that “an unusual number of patients have had disastrous outcomes from apparently well intentioned surgery” performed by Nugent.
Do you think that just maybe Nugent’s patients and potential patients might want to know about this?
Ardaiz says the allegations against Nugent are “sensitive,” and that secrecy is needed “at this juncture” to protect his “professional reputation.”
There is nothing in the charges of a particularly “sensitive” nature. The allegations are that the doctor has evidenced incompetence. These allegations do not relate to sexual misconduct, mental impairment, or anything else generally regarded as “sensitive.”
Anyone against whom serious accusations are publicly levelled suffers a potential impairment to “reputation.” Yet, according to a party anonymity is hardly the custom. Is there some reason for covering up the identity of Nugent simply because a “professional” reputation is at stake? Should the name of a person against whom administrative charges are pending be obscured or not depending on whether the person practices a learned profession? Given that the names of parties to appellate court proceedings normally appear in the captions of cases, it does seem incumbent upon Ardaiz to explain why an exception was made in this instance based on a “professional reputation” being implicated.
There were pre-hearing determinations by a hearing officer that were adverse to Nugent; he sought a writ of mandate in the Court of Appeal; it was denied; he appealed. By alluding to a need to shield the doctor’s identity “at this juncture,” Ardaiz implies that the court would not omit the doctor’s name if the hearing had already taken place and the hearing officer had sustained the charges. But why is it that Nugent’s professional reputation has come to be in jeopardy “at this juncture”? It is because Nugent, rather than submitting to a hearing, chose to enter public judicial forums to raise procedural objections in an effort to stave off that hearing. If he had participated in the hearing and prevailed, it is doubtful any layperson in Fresno or elsewhere would ever have gotten wind of the charges having been instituted. It was Nugent who converted unnoticed proceedings into a controversy resulting in a published opinion of the Court of Appeal. Nugent surely had no reasonable expectation that he could litigate in the shadows.
As Chief Justice Ronald George observed in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178:
“Litigants certainly anticipate, upon submitting their disputes for resolution in a public court, before a state-appointed or publicly elected judge, that the proceedings in their case will be adjudicated in public.”
But why should Ardaiz et al be expected to pay heed to that one particular sentence in NBC Subsidiary where they have utterly defied the holding of that case in ordering all of the papers in the case sealed?
George set forth the procedures to be followed when a trial court contemplates secrecy orders. The Judicial Council, in enacting court rules based on that decision, extended the requirements to appellate courts (as discussed here in connection with the recent blunder of this district’s Div. Seven — ultimately corrected — in sealing an entire opinion in a case). George wrote:
“First, a trial court must provide notice to the public of the contemplated closure....
“Second, before substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.”
There is no indication in the opinion that the appeals court provided notice to the public of the contemplated sealing of the records and no indication that it complied with Rule 12.5(e)(2)(C) by making the requisite findings. Fresno attorney Stephen A. Hansen of Hansen and Associates, who represented the hospital, confirmed yesterday that no public notice of the contemplated sealing occurred, and said that he doesn’t know “what they actually looked at,” but surmised the justices did not see documents that were not part of the record on appeal.
In his Nov. 1 opinion, Ardaiz provided no explanation for the court’s action. He merely announced:
“On July 19, this court reconsidered the trial court’s decision not to seal the record, and ordered that the record be filed under seal.”
Even if there were merit to the notion that confidentiality should be extended to the appellant’s identity — which there isn’t — the sealing of the entire file would not be necessary to achieve the objective. Redaction of his name and other identifiers from papers in the file would be all that would be warranted, in light of the NBC Subsidiary strictures.
Ardaiz tells in his opinion of Nugent’s activity in the appellate courts prior to filing his appeal:
“On March 20, 2001, appellant petitioned this court for a Writ of Supersedeas seeking review of the trial court’s order and requesting a stay of the proceedings. The petition was denied on March 28, 2001. On April 2, 2001, appellant filed a second petition seeking identical relief. The petition was denied on the same day. Appellant then sought review by the California Supreme Court. Review was denied on April 17, 2001.”
While mentioning that the Supreme Court denied review, Ardaiz did not bother to relate that the high court, in a near-unanimous action, voted to deny Nugent’s request for secrecy.
The minutes read: “The ‘motion to file petition for review and request for stay under seal’ is denied. Kennard, J., would grant the motion to seal.”
The Supreme Court had found that the public does have a right of access to information about the charges Nugent is facing. The Court of Appeal determined that the public does not have such a right. Is there something wrong with this picture?
It ought to have occurred to Ardaiz that Nugent’s identity and the allegations against him are already matters of public record. They are in the papers filed in the California Supreme Court — papers which that court decided would remain open to inspection of the public. In Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, it was observed that “the interests in privacy fade when the information involved already appears on the public record.”
Indeed, what possible point was there to the Fifth District jurists masking Nugent’s identity when one has but to bring up the Supreme Court’s April 11 minutes (available on the Internet) to ascertain who the mysterious “Unnamed Physician” is?
There is, of course, the prospect that Nugent will, in the end, be exonerated. If the prospect of ultimate exoneration were a justification for rendering a party’s identity secret and for sealing records, few court proceedings would be public. But public they are — or are supposed to be — absent an “overriding interest” in confidentiality. There are simply no extraordinary circumstances here that even arguably justify the hiding from the public of the identity of “Unnamed Physician.”
James A. Ardaiz! Rebecca A. Wiseman! William G. Polley!
The foregoing is a roll call of jurists who most recently have defied the law, as laid down by the state’s highest court, and have disregarded the public’s interest in openness of court proceedings. In excising the name of the appellant, they have engaged in judicial tomfoolery, an activity all too common in the Fifth District.
The “Fresno Follies” continue.
Copyright 2001, Metropolitan News Company