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Federal Judge Rules Public Interest Outweighs Minor’s Privacy Interest in Confidential Settlement – Health Law and Regulagation Update Blog Post by Mike DiOrio

January 7, 2020

Health Law and Regulation Update Blog Post by Mike DiOrio.

A recent decision by a Federal District Court Judge involving the settlement details of a minor’s medical malpractice case sheds light on how the plaintiff’s age can derail a plan even when all parties agree.

Defendants, especially medical providers, often ask for confidentiality as a term of a settlement agreement, if reached. There are many reasons that an individual provider, practice or hospital would not want a settlement amount or the settlement itself to be public knowledge. It goes without saying that if you are sued for what you do professionally, you don’t want the community knowing that you settled a claim, regardless of the reasoning behind the decision to do so or the strength of the claim itself.

There are also scenarios where the plaintiff does not want the settlement to be made public. A common scenario is when a plaintiff sues multiple parties and, for whatever reason, settles with one but not all of the defendants. At this point, the remaining defendants typically want to know all the terms of the confidential and negotiated settlement agreement. Can either the amount or other terms be used as leverage in negotiations or for the defense at trial? Understandably, the plaintiff does not want or often cannot share these terms. In the case of a claim brought on behalf of a minor, however, things can get tricky.

Minor settlements require court approval, and often the appointment of a conservator. See O.C.G.A. § 29-3-3. It is meant to protect the interests of the child. The submission of the settlement agreement and its terms to the court, however, makes those documents public record unless the court seals them. The court may seal the documents if the interests of the child outweigh the public’s inherent interest the same, and the presumption of public access. Typically, this means there is information about the minor which is private in nature and may cause the child harm if the public were to know – such as, the extent of the injuries or other personal health information. But what if the parties decide that the entire agreement (not just the amount) should be confidential?

In Willis v. United States of America, a trial court recently dealt with a negotiated settlement of a minor that needed approval, but where confidentiality was a key component of the agreement. The plaintiff brought a medical malpractice case against the US government, a doctor, a hospital, and a medical practice. The unique nature of the suing the government meant that the settlement was not a universal one involving all the defendants at the same time.

The plaintiff and the non-government defendants brought their settlement before the court for approval and seal. The parties noted that the remaining defendant did not object. The problem that the parties faced was that the only reasoning provided to the court as for the basis that the settlement terms be sealed, was that confidentiality was an express term.

The court denied the settlement agreement as negotiated. It found the argument that the confidentiality clause, although a key factor in the agreement, did not outweigh the public’s right to access court information. Furthermore, the court stated that the amount of the settlement alone did not warrant any redaction or sealing of records. The court found that the settlement agreement contained no additional private or sensitive information of the minor child that was not already public record, and that no party had sought to seal those documents prior to submitting the settlement for approval.

The court’s order offered a take it or leave it option. The parties could withdraw the settlement and continue with litigation if confidentiality was truly a non-starter, or, they could settle the case without the confidentiality clause and make it public record. The case is pending at this time.

Take home – when a minor is involved, it does not necessarily matter what the parties have negotiated, especially when weighing the public’s right to access information. While there are some courts that as a matter of course agree to seal settlements involving a minor, it is not always the case. The reasoning behind the ruling may lay the foundation for access to a settlement agreement of a former defendant or third party in discovery, which is typically objected to and often denied when pursued via a motion to compel.

Case is currently pending in the Southern District of Georgia – August Division; CV117-015

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