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I know most lawsuits in the U.S. are part of the public record. Exceptions can be made to remove the names of minors etc., but, for the most part, lawsuit details are openly available. With that said, are there exceptions for medical malpractice cases that include protected HIPAA information? If someone files a medical malpractice case, are the contents of those cases and details regarding their medical history exposed?

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Different kinds of court records are subject to different rules, but generally speaking, the public has a right to access the complaint in a civil case, derived from both the First Amendment and common law.

Under common law, the Court should only block public access if it determines that some interest in secrecy outweighs the interests promoted by the general policy of openness, which include the promotion of actual fairness and the appearance of fairness, community therapeutic value, and facilitating news coverage of the case.

Even if you can get the records sealed under the common law test, you still need to pass the First Amendment test, which asks whether there is a compelling governmental interest in limiting access to the record and whether sealing it is the least restrictive way of achieving that interest. The answer to both questions is usually no.

In applying those tests, HIPAA neither requires nor permits courts to make exceptions to the public's right to access court records. Its privacy rules only govern protected health information in the possession of medical providers, insurers, etc.

This means that filing a medical malpractice case will almost certainly result in the facts underlying that case becoming part of the public record. One could petition the court to seal portions of the record if they were particularly sensitive, but the court is basically required to do whatever it can to avoid granting that motion.

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    Thank you. Is it at least private if it's settled out of court? – user27343 Nov 3 '19 at 4:45
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    If the defendant is a private hospital or private doctor, the parties are typically free to make confidentiality a term of the settlement. If the defendant is a public entity or employee -- a hospital run by a state university, for example -- the settlement may be subject to disclosure under the state's freedom-of-information laws. – bdb484 Nov 3 '19 at 4:51
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    Thank you. As always, this forum delivers. – user27343 Nov 3 '19 at 5:07
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In Canada, when a case is decided (usually by a judge), the "reasons for decision" are usually published on-line by the court's office. A lawsuit is started by filing the Statement of Claim in the court's office. At that stage, it is a list of allegations that the person suing hopes to prove at a trial; say, that a physician committed medical malpractice, with enough details about what was done wrong, for example. That S of C is available, but only in theory, because while that filing is open to the public one must be able to ask for it by name of the parties or its filing number for the court records department to find it.

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